The University of Cape Town ("University") hereby grants to the Producer (and its successors, assigns, licensees and agents, all of whom are included in the term “Producer” for purposes of entry upon and use of the Premises) permission to enter upon, photograph, record and use the Premises as defined in Paragraph 2 below (in combination with other sets and/or locations and/or otherwise) for the periods set forth in Paragraph 2 below, and to bring all necessary personnel, equipment and temporary sets onto the Premises, for the purpose of making still and motion pictures and/or sound recordings and/or publicity materials of, on and/or about the Premises, subject to the terms and conditions contained herein.
1. If the Producer terminates this Agreement in accordance with Clause 11 more than 48 hours before the hour at which the agreed Filming/Recording Period is to commence, the Producer shall pay to the University a cancellation fee of 5 per cent (plus VAT) of the Location Fee (net of VAT) no later than 14 days from the date of such termination.
2. In the event that the Producer terminates this Agreement in accordance with Clause 11 less than 24 hours before the hour at which the Filming/Recording Period is to commence, the Producer shall pay the University a cancellation fee amounting to 10 per cent of the total Location Fee payable had the Filming/Recording Period proceeded as permitted.
3. Undertakings by the producer
3.1. The Producer agrees to remove all equipment and temporary sets after completion of its use of the Premises and to leave the Premises in as good condition as found at the commencement date of the use, reasonable wear and tear excepted. Signs and other notices on the Premises may NOT be removed or changed without the prior consent of the University nor may any structural changes to the fabric of the Premises be made. Where such permission is granted, any signs, notices or any other structures actually so removed or changed will be replaced by the Producer within one day after filming and the Premises restored to its condition as at the commencement of use.
3.2. The Producer will exercise all necessary care to prevent damage to the Premises and injury to any person present on the Premises, and shall at all times comply with the provisions of the Occupational Health & Safety Act, 1993, to ensure that the Premises form a safe working environment. The Producer shall be liable and indemnifies the University for any damage or loss, including consequential loss, suffered by the University arising out of the damage or destruction of any of the University’s property, and any other property for which the University is responsible, and out of personal injury or death suffered by the University’s employees and any other persons for whom the University is responsible in law, where such damage or loss is caused by any act or omission of the Producer, its agents, employees, directors, representatives, contractors or suppliers, in connection with the use of the Premises by the Producer or anything incidental thereto.
4. Insurance
4.1. The Producer agrees to maintain, at adequate levels, the necessary third party liability and damage insurance covering any claims which may be brought against it arising out of its use of the Premises, and to allow the University the right to view such insurance cover prior to authorising the use of the Premises. The Producer shall not do nor permit to be done any act, matter or thing which may render the University’s insurance of the Property or Premises against risk of loss or damage attributable to any of the causes insured against from time to time, either void or voidable, or which may increase the rate of premium payable by the University in respect of the Property with regard to such insurance.
4.2. The Producer shall be responsible for insuring any equipment or goods brought on to the Premises. The University shall not be responsible for any loss, theft or damage to the Lessee's property, regardless of how such loss, theft or damage is caused.
4.3. The University has the right to inspect the Producer’s insurance cover if so requested.
5. Force majeure
5.1. If, because of illness of actors, the director or other essential artists and crew, weather conditions, defective film or equipment or any other occurrence beyond Producer’s control, the Producer is unable to start work on the date designated above and/or work in progress is interrupted during use of the Premises by Producer, the Producer shall be entitled to use the use the Premises at a later date, mutually agreed with the University. In the event of interruptions as described above, the Producer shall ensure that the Premises are cleared of any sets or equipment in order to allow for the ordinary use of the Premises while the work is interrupted.
5.2. Where Producer cannot use the Premises or a material part of the Premises by reason of an event of force majeure (meaning any event beyond either party’s control including without limitation the following: fire, lightning, earthquake or the like, strike, act of God, act or threatened act of terrorism or war or student or staff riots) the Producer shall be entitled to suspend or cancel the Activities and/or immediately terminate this Agreement by giving written notice to the University. The University shall also be entitled to suspend or cancel the Activities and/or immediately terminate this Agreement under the circumstances above by giving written notice to the Producer. In the event of such termination or suspension, neither party shall be liable to the other for any consequential damage or loss suffered in respect of such termination or suspension. If the Event of Force Majeure occurs prior to the commencement of the filming period, Producer shall be under no liability to the University in respect of any obligations hereunder to the University and shall be entitled to be repaid any and all sums paid under the terms of this Agreement.
6. Rights
6.1. All rights of every kind and nature whatsoever in and to all still and motion pictures and sound recordings made hereunder in connection with the Premises and/or the use of the Premises by the Producer shall be and remain the sole and exclusive property of the Producer, subject to the provisions of paragraph 9.2.
6.2. The Producer undertakes that no film footage and/or sound recordings taken on or of the Premises will contain anything which can in any way damage the image of the University or which can reasonably be expected to cause offence or bring the University into disrepute, and that no reference will be made to the University in any film footage and/or sound recording without the University’s express written permission. The Producer acknowledges that in some instances, there may be relevant third party copyrights or other rights belonging to an artist, an estate, an individual or a collective rights agency which need to be cleared. The Producer undertakes to secure all necessary permissions from the owner of such rights in any University item or object recorded in the Recordings for the Production, and the University provides no warranty or undertaking that any such rights, releases or consents are or will be obtained.
6.3. The Producer undertakes to secure any model releases, copyright licences or other permissions that may be necessary to permit any individuals, including but not limited to University of employees, students, agents or contractors or members of the visiting public, to be filmed or recorded in the Production, copies of which must be provided to the University on demand. The Producer agrees to comply with any conditions imposed by any release, licence or permission that has been obtained for these purposes. The University agrees to assist the Producer to obtain appropriate consents from University of employees, but provides no guarantees regarding their availability or consent.
7. Compliance with laws and business licences
The Producer shall at all times for the duration of this Agreement observe and comply with all applicable laws and statutory, municipal and other by-laws and regulations and shall in particular ensure that it has all the necessary permits, authorities or licences required to carry on its business at the Premises.
8. Usage
8.1. The Producer is not obligated actually to use the Premises or to include any of said photography and/or said sound recordings in any still or motion picture.
8.2. The Producer undertakes to co-operate with the University in the event of an emergency that could require the use of the Premises during the period of use provided that the University will use best efforts to minimize the interruption to the Producer in connection therewith.
8.3. The Producer undertakes not to disrupt or disturb members of the University community going about their normal business in close proximity to such Premises.
8.4. The Producer undertakes to place “Filming in Progress” type signs in the filming vicinity.
8.5. The Producer further undertakes not to compromise any emergency route or emergency equipment.
9. Warranties
9.1. Each of the Parties represent, warrant and agree that it has the full right, power and authority to enter into this Agreement.
9.2. The Producer shall be responsible to the University or its employees / agents for any loss or damage caused to any part of the University any of its employees, agents, contractors, suppliers or any other person who may be brought onto the premises of the University by the Producer or any of its employees, agents, contractors or suppliers.
9.3. With the exception of any matters arising directly out of the University’s gross negligence, the Producer hereby indemnifies and shall keep the University indemnified against any loss or damage to the University and personal injury or death to any person resulting directly from any act or omission by the Producer and any person for whom the Producer is responsible in connection with the use of the University premises under this Agreement.
10. University limitation of liability
10.1. To the extent permitted by law, the University’s aggregate liability to the Producer for direct loss in contract, delict or otherwise arising out of in connection with this Agreement is limited for one incident or a series of incidents to the total amount of the fees actually received by the University from the Producer under this Agreement.
10.2. In no circumstances will the University be liable to the Producer for any loss of profits, revenue, goodwill, business opportunity or any indirect, consequential, financial or economic loss or damage, costs or expenses whether in contract, delict, negligence, breach of statutory duty or otherwise whatsoever or howsoever arising out of or in connection with this Agreement.
10.3. Without prejudice to any right which the Producer may have to claim against the University, the Producer undertakes to make no claim in connection with this Agreement or its use of the premises of the University against any employee, officer, student, agent or appointee of the University other than a claim relating to fraud or wilful misconduct, gross negligence on the part of such employee, officer, student, agent or appointee of the University.
11. Termination
11.1. The Producer may terminate this Agreement for any reason by giving notice in writing to the University at least 3 days (72 hours) prior to the Filming/Recording Period whereupon the provisions of Clause 2,3 shall apply.
11.2. Either party may terminate this Agreement if the other party is in breach of any of the terms of this Agreement and, in case of a breach capable of remedy, fails to remedy such breach within 7 days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it.
12. Effect of termination
12.1. On termination of this Agreement, the permission and rights granted in Clause 6 cease with immediate effect.
12.2. Termination of this Agreement howsoever caused shall not affect:
12.2.1. the rights and obligations of both parties under this Agreement in the period up to termination;
12.2.2. the rights and obligations of both parties under this Agreement which by their nature are due to continue beyond such termination; and/or
12.2.3. the rights of the University to recover any monies payable pursuant to Clause 2,3 or otherwise.
13. Parking and vehicle access conditions
13.1. The University cannot guarantee parking in close proximity to the Premises. The Producer shall make all parking and vehicular access arrangements including access to facilitate the necessary setting up arrangements, with the University’s Traffic Manager (Tel (021) 650-3312/3) prior to commencement of the shoot. Where overtime is required to be worked by staff of the University’s Traffic Department such costs will be negotiated with the Traffic Manager and payment made directly to the University; such costs shall not form part of the Fees determined in paragraph 5 above.
13.2. The Producer undertakes to ensure that persons employed as part of the above-named shoot shall, where such shoot takes place indoors, remain in the demarcated areas (i.e. The Premises) and shall not wander around the interior the building.
13.3. The Producer and his staff / crew / employees shall furthermore, obey all instructions that are passed on to them by members of the University’s Campus Protection Services and/or Traffic department and by any other authorised personnel of the University.
14. Assignment
This agreement is non-assignable by the University. The rights of Producer arising from Producer’s use of premises may be freely assigned and licensed by the Producer in whole or in part and in such event, this agreement shall remain binding on the University and inure to the benefit of such assignee or Producer.
15. Severability
If any provision of this Agreement shall be held to be unlawful, invalid or unenforceable, in whole or in part, under any enactment or rule of law, such provision or part shall to that extent be severed from this Agreement and rendered ineffective as far as possible without modifying or affecting the legality, validity or enforceability of the remaining provisions of the Agreement which will remain in full force and effect.
16. Waiver
The University’s failure to exercise or enforce any rights it may have under this Agreement will not be deemed to preclude any right, relief or remedy available to it should it choose to exercise or enforce those rights.
17. No partnership or agency
Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties or any of them, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power.
18. Notices
Any notice to be given under this Agreement shall be in writing and shall be delivered by hand, sent by registered post to the address of the other party set out in this Agreement or sent by email to the email address of the other party (or such other address or email address as may have been notified). Any such notice or other document shall be deemed to have been served: if delivered by hand – at the time of delivery; if sent by post – upon the expiration of 2 business days after posting provided that, in the case of email transmission:
(i) where a delivery receipt has been requested by the sender, that such delivery receipt has been received by the sender; or
(ii) where no delivery receipt has been requested by the sender, that no notification of non-delivery has been received by the sender.
19. Entire agreement
Without prejudice to the rights of either party in respect of actions relating to fraudulent misrepresentation, this Agreement shall supersede all other arrangements or agreements whether oral or in writing between the parties as to the subject matter of this Agreement.