TERMS AND CONDITIONS
BY ENGAGING WITH CHERRY PICKED LOCATIONS, ACCEPTING ANY SHOOT PROPOSAL OR SELECTING ANY LOCATION, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND/OR “THE VENUE” AND/OR “THE CLIENT” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF THE YOU OR SUCH ENTITY DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU AND/OR SUCH ENTITY MUST NOT ENGAGE WITH CHERRY PICKED LOCATIONS AND MUST NOT ACCEPT ANY SHOOT PROPOSAL or SELECT ANY LOCATION for use.
1.1. “Agreed Hours” means the duration of use of the Venue;
1.2. "Client” means the third party, including its employees, agents and sub-contractors, principals, wishing to utilise the Venue as a location to perform the Work;
1.3. “Commission” means the fee to be charged by the Location Agency for the performance of the Services hereunder;
1.4. “Contract Period” means the period during which the Work will take place;
1.5. “Equipment” shall mean all props, equipment and paraphernalia required by the Client for the performance of the Work;
1.6. “Fee” means, inter alia and as the context indicates, the location fee to be paid by the Client for the use of Location, any facilitation fee due to the Location Agency, any cancellation fee or extended use fee, third party charges. Unless otherwise expressed, all fees quoted are excluding VAT;
1.7. “Full day film shoot” means access to the Location for a maximum of 14 hours, unless otherwise agreed;
1.8. “Location” means the venue selected by the Client for the purposes of hiring such venue for the performance of the Works during the Contract Period;
1.9. “Location Agency” means Cherry Picked Locations (Proprietary) Limited;
1.10. “Long Form Shoot” means any event, booking and/or shoot that is booked for a period that exceeds 14 hours. This does not include Full day film shoots and Still shoots that, for reasons beyond the reasonable control of the Client, exceed the Agreed Hours with the permission of the Venue;
1.11. “Stills shoot” means access to the Location for a maximum of 12 hours, unless otherwise agreed;
1.12 “Services” means the services to be performed by the Location Agency including inter alia, promoting the Venue for use as a Location, introducing Client’s to Locations, facilitating the use of a Location by the Client;
1.13. “Venue” means the authorised person letting the Location to the Client for use for the Work during the Contract Period;
1.14. “the Work” means the activities to be performed at the Venue during the Agreed hours by the Client.
2.1. The Location Agency specialises in sourcing ideal Locations for film shoots, stills shoots and other events.
2.2. The Venue and the Client hereby appoint the Location Agency to render the Services and the Location Agency accepts such appointment on the terms and conditions contained in this Agreement.
3. SERVICES OF THE LOCATION AGENCY
3.1. The Location Agency will introduce prospective Clients to Locations for the purposes of the Client hiring the Location for performance of the Work.
3.2. The Location Agency shall facilitate the communication between the Venue and the Client for the purposes of booking and utilizing the Location.
3.3. The Location Agency shall not be responsible for obtaining permission from the Venue for the Client to utilize any Venue/Location trademarks or copyright.
3.4. The Location Agency shall not be responsible for reviewing, approving, or obtaining approval of the content of any shoot or the results of any Work performed by the Client.
3.5. The Location Agency shall negotiate the fees to be paid by the Client on behalf of the Venue. The Venue agrees that he / she / it is not permitted to discuss fees directly with any Client introduced to the Venue by the Location Agency.
3.6. The Location Agency does not warrant that the Location selected by the Client is fit for purpose or free of all defects.
4. THE VENUE’S RIGHTS, DUTIES AND RESPONSIBILITIES
4.1. The Venue hereby agrees that the Client shall:
4.1.1. be permitted to access the Location between the Agreed Hours with the Equipment for the purposes of performing and completing the Work;
4.1.2. be permitted to utilize both live and still photographs and videos, whether developed or not and created at the Location for the purposes of completing the Work;
4.1.3. be entitled, in order to perform and complete the Work for the duration of the Contract Period, to move any and all of the Venue’s movable property, provided all movable property is returned to its original position, undamaged.
4.2 The Venue must ensure that all valuables are put away as well as any items that cannot be replaced. The Location Agency or the Client cannot be held liable for losses associated with valuables and irreplaceable items.
4.3. If artwork is to be removed, the Venue has the option to remove themselves or to permit the Client to remove the artwork at their own risk. In the event that the artwork is to remain in place the Client must ensure that permission is obtained in accordance with clause 9.3.
4.4. The Venue shall notify the Location Agency within 48 (forty-eight) hours of completion of the Contract Period of any damages caused to any property belonging to the Venue or loss suffered by the Venue.
4.5. The Venue shall not make any changes to the Location, superficial or otherwise once the booking by the Client for use of the Location has been confirmed. Should changes be made to the Location in breach of this clause, which result in the Client cancelling the booking, the Venue shall be liable to pay the Fees that would’ve been due to the Location Agency had cancellation due to this clause not occurred. Further the Venue indemnifies the Location Agency and holds it harmless from and against any losses, liability, or damages of whatsoever nature it incurs as a result of the Venue’s breach of this clause.
5. THE CLIENT’S RIGHTS, DUTIES AND RESPONSIBILITIES
5.1. The Client shall:
5.1.1. Not use the Venue’s crockery, cutlery, food, beverages, tea, or coffee;
5.1.2. Not use the Venue’s music system, TV or telephone unless approved by the Venue in writing;
5.1.3. Not use fireplaces, swimming pools, kitchen facilities (cooking) unless approved by the Venue in writing;
5.1.4. Not sleep in beds, use linen, use the bathrooms, use towels, or similar unless approved by the Venue in writing;
5.1.5. Remove all rubbish from the location on departure (no rubbish to be placed in the Location’s bins);
5.1.6. Not use the toilet facilities at the Location unless approved by the Venue in writing. Where permission to use the Location’s toilets is provided, the Client shall provide its own toilet rolls, hand wash and hand cream for the duration of the Contract Period;
5.1.7. Not use any copyright or trademark, including but not limited to Venue logo’s and/or trade names, in any shoot or the result of the Work without the written permission of the Venue. The Client shall not request/require the Location Agency to obtain this permission for and on behalf of the Client.
5.1.8. Not use any artwork in any shoot unless approved by the Venue in writing and provided further that permission is obtained in accordance with clause 9.3.
5.2. Upon conclusion of the Work and the Contract Period, the Client is required to ensure that the Location is returned to its original condition.
5.3. The Client shall utilize appropriate materials to cover furniture not in use.
5.4. The Client shall be obliged to utilize appropriate wall and floor coverage in respect of all Equipment used in order to ensure the Location and its property are not damaged.
5.5. The Client shall ensure that none of its employees, agents, subcontractors, and / or other affiliates smoke at the Location. Smoking outside the Location building but on the premises of the Location shall only be allowed with the written permission of the Venue.
5.6. The Client warrants that it shall familiarize itself with, and ensure that its employees, agents, subcontractors, and / or other affiliates are made aware of all rules and regulations of the Venue and the Location and shall, comply with all applicable municipal local and national laws, by-laws, and regulations in completing the Work, including but not limited to weight and height restrictions in respect of Equipment to be used, and shall ensure that it obtains all the necessary permits required to perform the Work.
5.7. The Client undertakes to notify all those in the vicinity of the Location who may be potentially affected by the Work prior to the commencement of the Contract Period.
5.8. The Client is obliged to take all necessary precautions and measures to ensure that all property located at the Location is properly cared for and is not damaged. In the event that damages are caused to the Location and/or its property as a result of the Client’s conduct, or any third party for which the Client is vicariously liable, the Client shall compensate the Venue for any such damage or loss within 21 days from date of claim being submitted in writing to the Client by the Location Agency.
5.9. It is the Client’s responsibility to take photographs of all damages present at the Location prior to the commencement of the Work. All damages alleged by the Venue will be deemed to have been caused by the Client unless the Client has photographic evidence that the alleged damage was present prior to the commencement of the Contract Period.
5.10. The Client is required to notify the Location Agency timeously of any special parking requests at the Location.
5.11. The Client shall not be entitled to utilize the Location’s electricity supply for the purposes of performing the Work and agrees to utilize a generator or alternative reliable electricity supply throughout the Contract Period, unless agreed otherwise with the Venue in writing.
5.12. The Client is required to notify the Location Agency timeously of any special parking requests at the Location.
5.13. The Client shall comply with the Occupational Health and Safety Act, 1993 (as amended), including the Regulations and annexures thereto as well as any other Laws, Municipal safety regulations and bylaws.
5.14. The Client warrants and undertakes that it shall obtain both appropriate public liability insurance and insurance for incidental damages to the Location for the duration of the Contract Period. Proof of insurance must be available on request.
5.15. Neither the Location Agency nor the Venue will be responsible for any break in electricity during the shoot, it is advised that all shoots have a backup electricity supply.
5.16. The Client warrants and undertakes that prior to the commencement of the Contract Period, the Client will attend at the Location in order to inspect the Location and ensure that it is satisfied that the Location meets its requirements in order to perform and complete the Work.
5.17. The Client accepts that it cannot hold the Location Agency liable in the event that, following attendance at the Location, it determines that, for any reason whatsoever, including minor changes made to the Location prior to the commencement of the Contract Period, the Location does not meet its requirements. In those circumstances, the Client agrees that it remains obliged to pay the applicable Fee to the Location Agency.
5.18. In the event of the Client wanting to return to the Venue in any subsequent season/shoot/event/work the client will not approach the Venue directly. All access to the Venue will done through Cherry Picked Locations on the same terms and conditions as agreed herein.
Unless otherwise agreed to in writing, the Client undertakes to ensure that the Work is performed within the Agreed Hours for the duration of the Contract Period. In the event that it is necessary for the Client to perform the Work outside of the Agreed Hours, it is necessary for the Client to contact the Location Agency as soon as possible to determine whether this is possible. If possible, the Client agrees that a fee of 10% of the Fee will be charged for each additional hour required.
7. PAYMENT TERMS
7.1. The Client shall pay to the Location Agency the Fees, and charges outlined in the invoice.
7.2. The Location Agency will invoice the Client for the Fees, including the Commission payable to the Location Agency for its Services hereunder prior to the commencement of the Contract Period.
7.3. All such Fees and charges shall be paid by the Client to the Location Agency immediately upon receipt of invoice but in any event by no later than the day before the commencement of the Contract Period.
7.4. In the event of the Client failing to timeously effect payment of any amount due to the Location Agency prior to the commencement of the Contract Period, Access to the Location will not be permitted until such time as full payment has been received by the Location Agency. Further should the Client be prevented from accessing the Location at the commencement of the Contract Period due to non-payment, the Agreed Hours shall not be extended to cater for this delay and any use of the Location that exceeds the Agreed Hours shall be billed for in accordance with clause 7.5 below. Any delay in payment and resultant prevention of access to the Location that exceeds 24 hours shall be regarded as a cancellation and the terms of clause 11.1.1 shall apply.
7.5. the event that it is necessary for the Client to perform the Work outside of theAgreed Hours, it is necessary for the Client to contact the Location Agency as soon as possible to determine whether this is possible. If possible, the Client agrees that a fee of 10% of the Fee (unless otherwise discussed) ex vat per the hour will be charged for each additional hour required.
7.6. All invoices will be deemed to be received by the Client on the date the invoice is emailed to the Client.
7.7. In the event of the Client failing to timeously effect payment of any amount due to the Location Agency, without prejudice to any other rights and remedies available to it, the location Agency shall be entitled to charge interest thereon at a rate of 2% per month.
7.8. The Client agrees that it shall pay all the Location Agency’s expenses in recovering any amounts the Client owes the Location Agency and or the Venue, including legal costs on the attorney and client scale, collection charges and tracing fees, and VAT thereon.
7.9. The Location Agency reserves the right to request a damage deposit calculated at their discretion according to risk. This will be held for the duration of the Contract Period and will be released on lapse of the period referred to in clause 4.2.
7.10. In respect of any monies owed to the Location Agency, the Client shall not be entitled to withhold, defer, and make any deduction from, obtain deferment of judgment for, or set off against, any payment due to the Location Agency in terms of this Agreement.
7.11 The Location Agency will make payment to the Venue into the Bank account nominated by the Venue. NB! Please note it is The Venue's responsibility to notify the Location Agency if their banking details have changed since the last time they were paid. If the Location Agency is not notified of the change, it cannot be held accountable for payment made into the wrong account.
7.12. A certificate issued by the Location Agency’s accountant shall be prima facie proof of any amount owing to the Location Agency arising from this Agreement.
8. INDEMNITY & LIABILITY
8.1. The Client makes use of the Location and performs the Work, entirely at its own risk.
8.2. The Client indemnifies and holds the Location Agency and the Venue harmless against any claims of loss and/or damages and/or injury by any third party, sustained at the Location for the duration of the Contract Period due to the negligent or wilful acts or omissions of the Client or for the failure of the Client to procure suitable insurance as required in terms of this Agreement.
8.3. Neither the Location Agency nor the Venue or their respective agents and/or employees shall be liable for any loss of any nature suffered by the Client or damage to any of the goods or assets of the Client, or be liable for any injury or loss of life to the person of the Client or the Client’s employees or invitees, as a result of theft, robbery, or any other criminal offence, the overflow or failure of water supply or any leakage or any fault in the plumbing works or any electrical fault or by reason of the element of the weather or failure to carry out any work or of any latent or patent defect in the Venue or of any other cause whatsoever.
8.4. The Venue and the Client hereby indemnify and hold the Location Agency harmless against all claims, legal actions, costs, or expenses of whatsoever nature arising out of any infringement or alleged infringement by the Venue or the Client as a result of or arising out of this Agreement, the use by the Client of the Location, failure by the Client to obtain permission where required from the Venue, failure by the Venue and/or the Client to obtain permission from any intellectual property owners.
8.5. Neither the Location Agency, the Client or the Venue shall be liable to each other for any special, consequential, or indirect damages, howsoever arising.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. Subject to the remaining provisions of this clause, all Intellectual Property owned by the Location Agency, the Client or the Venue shall remain the sole and exclusive property of that Party.
9.2. All content on the Location Agency’s website (unless explicitly stated), is the Location Agency’s property or licensed to the Location Agency whether registered or not. The Location Agency specifically reserves all rights relating to such content.
9.3. Where a Location has artwork that is visible, and where such artwork will be visible in any shoot emanating from the Work, the Client must ensure that permission is sought from the artist for his/her artwork to appear in the result of Work. The Client specifically indemnify the Location Agency from any liability arising from a failure to obtain the requisite artist permission
9.4. It is the Client’s responsibility to obtain the permission of the Venue to utilize any copyright or trademark, including but not limited to Venue logo’s and/or trade names, in any shoot.
9.5. The Client shall maintain the exclusive and sole rights, title, interest, results, and proceeds in respect of the Work created at the Venue and neither the Location Agency nor the Venue shall have any claim to those rights, title, interest, results, and proceeds.
10. NON- CIRCUMVENTION
10.1. The Venue and the Client agree that no attempt (either itself directly or through or by any intermediary or any other person, directly or indirectly associated in any way with either Party) shall be made through any structure, mechanism, subterfuge, or in any other way whatsoever to:-
10.1.1. Circumvent the Location Agency; and/or
10.1.2. to secure, or attempt to secure any rights for itself, currently or in future, enjoyed by the Location Agency; and/or
10.1.3. to utilise any intellectual property or confidential information shared by the Location Agency with Client and/or the Venue, directly or indirectly, without the involvement of the Location Agency, which use has the result of directly or indirectly, interfering with, circumventing, attempting to circumvent, avoiding or bypassing the Location Agency from any transactions, or obviating or interfering with the relationship of the Location Agency and its contacts for the purpose of gaining any benefit, whether such benefit is monetary or otherwise. The Client and the Venue also undertake not to make use of any third party to circumvent this paragraph.
10.2. The Parties agree that any breaches of the aforegoing, will result in the breaching party being liable for and paying any and all claims, damages, expenses including liquidated damages, sustained, or incurred by the Location Agency, as a result. The provisions of this non-circumvention agreement shall remain in force indefinitely from date hereof, notwithstanding the termination of this Agreement.
11. BREACH AND CANCELLATION
11.1. In the event that the Client wishes to cancel any Location booking, the following will apply:
11.1.1. In the event that the cancellation occurs less than 48 hours prior to the date of commencement of the Contract Period, 100% of the Fee will be payable by the Client and due to the Venue.
11.1.2. In the event that the cancellation occurs more than 48 hours prior to the commencement of the Contract Period and provided further that the Location Agency is able to secure another booking for the Location, no cancellation fee shall be payable by the Client or be due to the Venue, unless otherwise specified by the Venue in writing. Should the Location Agency, who has no obligation to secure another booking, be unable to do so, then a cancellation fee equal to 50% of the Fee shall be payable by the Client and be due to the Venue.
11.2. Should the Client commit a breach of any of the terms and conditions hereof during the Contract Period, and remain in default after receipt by it of notice from the Location Agency or the Venue calling for such breach to be remedied, without prejudice to any other rights they may have hereunder or in law, The Location Agency and/or the Venue shall be entitled to terminate the Client’s use of the Venue with immediate effect and without liability.
11.3. Should the Client commit a breach of any of the terms and conditions hereof during the Contract Period and remain in default after receipt by it of notice from the Location Agency calling for such breach to be remedied. The Location Agency shall be entitled, without prejudice to any other rights it may have hereunder or in law, to terminate the Client’s use of the Venue with immediate effect. Any such termination shall be without liability, but without prejudice to its claim for the amounts owing hereunder or for damages which it may have suffered by reason of the Client’s breach of contract or of the premature cancellation.
12.1. The Parties shall at all times owe each other a duty of good faith and shall, in all dealings with each other and in respect of the Services act according to such standard.
12.2. No variation or amendment to this Agreement shall be of any force and effect whatsoever, unless reduced to writing and signed by the parties.
12.3. This Agreement incorporates the entire Agreement between the parties and no warranties, or representations, whether express or implied, not recorded herein have been given by or between the parties.
12.4. Any relaxation of any of the terms of this Agreement or any indulgence shown by any of the parties to the others shall in no way prejudice the right of such party and shall not be construed as a waiver or novation thereof.
12.5. The parties shall make every effort to resolve any dispute amicably and to the satisfaction of both parties, provided that should a breach occur, which cannot be remedied without resorting to legal action, the parties agree that the party found to be in breach of this Agreement shall pay legal costs on the attorney and own client scale.
12.6. Any changes made to the contract need to be initiated by ‘Location Agency’ in order to validate the change.