SCHEDULE 1
1. Payment
1. 1. The Hirer shall hire the Venue (as defined in Schedule 2 hereto) at a cost of (including VAT) per Venue (as defined in Schedule 2 hereto), payable, in full, at least seven (7) business days prior to the Event Date as defined in Schedule 2 hereto (the ″Venue Hire Cost″).
1.2. Failure by the Hirer to make timeous payment of the Venue Hire Costs stipulated in paragraph 1 above will result in the automatic cancellation of the booking and the costs associated with the automatic cancellation are as provided for in accordance with Schedule 2 hereto.
1.3. The Venue Hire Costs include only the Hiring of the cinema and does not include the audio-visual costs, unless otherwise stipulated on the front cover page to this Agreement. The Hirer shall be responsible and liable for all other costs relating to the event and/or venue unless specifically agreed between the parties in writing.
1.4. All amounts charged by Ster-Kinekor Theatres in relation to the hiring of the Venue shall be paid by the Hirer to Ster-Kinekor Theatres without deduction, delay or set-off.
1.5. Confirmation of all payments must be sent through to Ster-Kinekor Theatres as soon as payment has been made for Ster-Kinekor Theatres to reserve the Venue. Should the Hirer not comply with the terms set out above as well as the terms set out in Schedule 2 hereto then Ster-Kinekor Theatres shall be under no obligation to reserve the Venue and shall not be liable in any manner or form as more fully stipulated in Schedule 2 hereto.
2. Venue
The Ster-Kinekor Theatres Cinema Complexes and/ or cinemas within the cinema complexes that fall under the Agreement and costs of hire shall be as set out in the quotation.
Notwithstanding anything to the contrary contained in this Agreement, all requests for bookings must be made by e-mail to
SCHEDULE 2
1. PREAMBLE
1.1. Ster-Kinekor Theatres is one of the largest cinema chains and is the owner of various Cinema Complexes in South Africa.
1. 2. The Hirer wishes to hire certain Ster-Kinekor Theatres cinema complexes or cinemas and Ster-Kinekor Theatres has agreed to make available such cinema complexes or cinemas in which the Hirer will host such Event/s in return for the agreed payment stipulated hereunder.
1.3. The Parties have decided to enter into an agreement to regulate the agreement upon the terms and conditions stipulated herein and detailed in any annexure hereto.
2.1. In this agreement, unless the context clearly indicates a contrary intention, expressions, which denote:
2.1.1. the singular shall include the plural and vice versa;
2.1.2. any gender shall include the other genders; and
2.1.3. natural persons shall include a juristic person and vice versa.
2.2. The headings in this Agreement are used for the sake of convenience, and shall not govern the interpretation hereof.
2.3. All Annexures, Appendices and Schedules to this Agreement as attached hereto from time to time and signed by the Parties shall be deemed to be incorporated in and form part of the Agreement.
2.4. All expressions contained in the body of this Agreement shall have the same meaning in all of the Annexures, Appendices and Schedules to this Agreement, and in any other attachments appended hereto from time to time.
2.5. References to any statute or statutory provision includes a reference to the statute or statutory provision as amended from time to time whether before, on or (in the case of re-enactment or consolidation only) after the date of this Agreement and any regulations made under it.
2.6. Where any term is defined within the context of any clause in this Agreement, the term so defined shall, unless it clearly appears from the clause in question that such term has limited application to the relevant clause, bear the meaning ascribed for all purposes in terms of this Agreement, notwithstanding that such term has not been defined in clause 3 below;
2.7. The rule of construction that, in the event of ambiguity, this Agreement shall be interpreted against the Party responsible for the drafting or preparation of the Agreement, namely Ster-Kinekor Theatres, shall not apply in the interpretation of this Agreement.
2.8. Save as appears to the contrary from this Agreement, when any number of days is prescribed in this Agreement, same shall be a reference to Business Days and be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next day which is not a Saturday, Sunday or public holiday.
2.9. Where the figures are in numerals and words, if there is any conflict between the two, the words shall prevail.
2.10. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement.
2.11. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provided that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
3.1. In this Agreement, unless a contrary intention clearly appears from the context, the following expressions shall have the following meanings and cognate expressions shall have the corresponding meanings:
3.1.1. "Agreement" means this Agreement between Ster-Kinekor Theatres and the Hirer, including all Annexures, Schedules and Appendices as well as the Terms and Conditions on Ster-Kinekor Theatres’ website, www.sterkinekor.com or at the specific Venue. The Parties hereto, by virtue of their signatures, agree to be bound to this entire Agreement as more fully contained herein;
3.1.2. “Branding Guidelines” means Ster-Kinekor Theatres’ branding guidelines as communicated from time to time;
3.1.3. "Business Day" means a day, which is not a Saturday, Sunday or public holiday in the Republic of South Africa recognised as such under the Public Holidays Act, 1994 (Act no 36 of 1994);
3.1.4. Confidential Information” means Information relating to one party or its agents (the “Disclosing Party”) and/or the business carried on or proposed or intended to be carried on by the Disclosing Party and which is made available in connection with this Agreement to the other party (the “Receiving Party”) (or its agents) by the Disclosing Party (or its agents) or which is disclosed orally or in any other manner to the Receiving Party and any other information which is otherwise made available by the Disclosing Party (or its agents) to the Receiving Party (or its agents), whether before, on or after the date of this Agreement, including any information, analysis or specifications derived from, containing or reflecting such information but excluding information which is publicly available at the time of its disclosure or becomes publicly available (other than as a result of disclosure by the Receiving Party or any of its agents contrary to the terms of this Agreement) or was lawfully in the possession of the Receiving Party or its agents (as can be demonstrated by its written records or other reasonable evidence) free of any restriction as to its use or disclosure prior to its being so disclosed or following such disclosure, becomes available to the Receiving Party or its agents (as can be demonstrated by its written records or other reasonable evidence) from a source other than the Disclosing Party (or its agents), which source is not bound by any duty of confidentiality owed, directly or indirectly, to the Disclosing Party in relation to such information;
3.1.5. “the Event” means seminars, workshops, courses and the like together with the exhibition of material at such Event;
3.1.6. “Event Date” means the date on which the Event will take place or such other date agreed to in writing by the Parties;
3.1.7. “host” means the organising, planning, scheduling, screening and/or marketing etc. of an Event;
3.1.8. “Intellectual Property” means any trademark, trade name, service mark, patent, design, copyright (including, without limitation, rights in computer software and databases, and moral rights), design right, topography right and domain name, in each case whether registered or unregistered, application to register any of the aforementioned rights, rights in the nature of the aforementioned rights, trade secrets, rights in unpatented know-how, right of confidentiality, and any other intellectual or industrial property rights of any nature whatsoever created, owned, used, developed by, licensed to or emanating from either Party;
3.1.9. “Mandatary” in terms of Occupational Health Safety Act this includes an agent, contractor or a subcontractor for work, but without derogating from his status in his own right as an employer or a user, i.e. the Hirer.
3.1.10. “Marketing Material” includes stationery, printed programs, banners, pop-up banners, advertising boards, background boards, triangular cushions, leaflets, stickers, souvenirs, key rings and other similar material;
3.1.11. “Parties” means Ster-Kinekor Theatres and The Hirer collectively;
3.1.12. “Party" means either Ster-Kinekor Theatres or The Hirer;
3.1.13. “show” means a screening by Ster-Kinekor Theatres during its show times;
3.1.14. "Ster-Kinekor Theatres" means Ster-Kinekor Theatres (Pty) Ltd. (registration number: 2018/482630/07), a company duly registered and incorporated in accordance with the Laws of the Republic of South Africa, full details of which are set out in page 1 hereof;
3.1.15. “The Hirer” means the Hirer, a company duly registered and incorporated in accordance with the Laws of the Republic of South Africa, full details of which are set out in page 1 hereof.;
3.1.16. “VAT” means the value-added tax payable in terms of the Value Added Tax Act of 1991, as amended; and
3.1.17. “the Venue” means the portion of building and/or cinema occupied by Ster-Kinekor Theatres as referred to in page 1 hereof.
4. DURATION
The duration of this Agreement shall be as set out on page 1 of this Agreement.
The Hirer acknowledged and agrees that it does not have the sole and exclusive right to utilise the Venue for the Event/s and Ster-Kinekor Theatres is free to agree with any other party regarding hiring the Venues at separate times for similar Events.
6. THE EVENT AND BOOKINGS
6.1. The Hirer shall host the Event at the Venue as stipulated in Schedule 1 hereto or otherwise agreed to in writing. Notwithstanding anything to the contrary contained herein, the Hirer shall comply with the booking requirements as set out herein and in accordance with Schedule 1 hereto.
6.2. Booking Days and Times
6.2.1. The Hirer can only book the Venue for use on Mondays, Wednesdays and Thursdays unless approved by Ster-Kinekor Theatres in writing.
6.2.2. The Venues cannot be booked for use on Tuesdays, Fridays, weekends, public holidays and/or during school holidays, unless approved by Ster-Kinekor Theatres in writing.
6.2.3. All bookings must coincide with the showtimes of the cinemas, e.g., 19h50 – 21h00, and cannot run longer than (one) show, unless approved by Ster-Kinekor Theatres in writing.
6.2.4. No bookings will be made between two (2) shows unless approved by Ster-Kinekor Theatres in writing.
6.2.5. Not more than one (1) show can be booked at any given time unless approved by Ster-Kinekor Theatres in writing.
6.2.6. Only bookings requested, confirmed and agreed in writing by Ster-Kinekor Theatres will be honoured.
6.2.7. Booking may only be made in accordance with seating capacity.
6.2.8. No interruption of cinema showtimes or performances will be permissible. All relevant set-up requirements are to be completed during staggers or at the time of cinema cleaning.
6.2.9. Notwithstanding the above, all bookings of Venues will be at Ster-Kinekor Theatre’ sole discretion.
6.2.10. All bookings will be honoured save in circumstances beyond Ster-Kinekor Theatres’ direct control.
6.3. Booking Procedure
6.3.1. Bookings of the Venue must be requested twenty (20) days prior to the Event Date and must be booked in accordance with Schedule 1.
6.4. Booking Price and Payment
6.4.1. The booking price and payment are as per Schedule 1.
7. RIGHTS AND OBLIGATIONS OF THE PARTIES
7.1. Ster-Kinekor Theatres:
7.1.1. Ster-Kinekor Theatres shall make available:
7.1.1.1. the Venue for the Event and will provide the Hirer with access to the Venue, subject to payment of the Venue hire cost stipulated in clause 6.4 above.
7.1.2. Operational Guidelines and deliverables by Ster-Kinekor Theatres. In this regard, Ster-Kinekor Theatres shall-
7.1.2.1. ensure that the Venue is open and available for normal operation;
7.1.2.2. ensure that all relevant cinema and call centre staff members are informed of the Event; and
7.1.2.3. allow the handing out of promotional material of sponsors and exhibitors to attendees of the event, subject to written approval by Ster-Kinekor Theatres in terms of this Agreement.
7.1.3. In addition, Ster-Kinekor Theatres:
7.1.3.1. reserves the right to use The Hirer’s material as approved by the Hirer, whether in print, film or electronic form and/or generated from this Agreement for promotional and advertising purposes;
7.1.3.2. shall not be responsible or held liable for any costs not specifically provided for in this Agreement;
7.1.3.3. shall be entitled to deal with the Venue in any respect it deems appropriate during the duration of this Agreement. In this regard "deal with" shall mean and include repair, improve, alter and/or add to the facility (Ster-Kinekor Theatres shall endeavour to ensure that the latter shall not interfere with the event); and
7.1.3.4. shall be entitled to bring an immediate stop to the Event and/or request any guest and/or invitee to immediately leave the Venue should it reasonably believe the Event and/or the guest is causing a disturbance or interfering with the Venue and/or the culture of the facility and/ or alternatively constitutes a health hazard or is detrimental to public safety, and the Hirer shall in no way interfere with Ster-Kinekor Theatres' rights in this regard.
7.1.4. Notwithstanding anything to the contrary contained in this Agreement, the Hirer is aware that Ster-Kinekor Theatres does not in any way warrant that the facility will be fit for the purposes for which they are hired or that the Event can conveniently be held at a facility. The determination to undertake the event and to use the Venue is made by the Hirer utilising its own judgment and experience and it has not relied upon any warrant by Ster-Kinekor Theatres or any third party on its behalf.
7.2. The Hirer:
7.2.1. The Hirer acknowledges, agrees and undertakes as follows:
7.2.1.1. It shall not use the Venue other than for the Event;
7.2.1.2. It is solely and exclusively liable and responsible for its guests and invitees whilst they have access to the Venue and for the Event Date;
7.2.1.3. Ster-Kinekor Theatres shall not under any circumstances be liable for any damage or prejudice suffered by the Hirer, whether in respect of its assets, guests and invitees, staff or goodwill in general, and the Hirer shall have no claim against Ster-Kinekor Theatres arising out of and in connection with any act, matter or thing done – or not done, by Ster-Kinekor Theatres, whether Ster-Kinekor Theatres' conduct is reckless, negligent or otherwise;
7.2.1.4. shall be solely and exclusively responsible for such third party's well-being, and conduct of any person or entity who attends at the Venue on the Event Date or at any other time or date, and for any purpose associated with this Agreement and shall also be responsible for any damages caused to the Venue or the property by such party.
7.2.2. The Hirer shall:
7.2.2.1. organise, coordinate and host the Event at the Venues during the time allocated;
7.2.2.2. supply additional trestle tables and table coverings at the Venue;
7.2.2.3. have the right to use the identified screen in the Venue for the Event on the Event Date and at the times agreed to;
7.2.2.4. ensure that an electronic version of the presentation in the appropriate format is sent to the Venue at least two (2) days prior to the event, where applicable;
7.2.2.5. ensure that the catering at the Event is negotiated with and agreed to by Ster-Kinekor Theatres in writing on a per Event basis;
7.2.2.6. obtain Ster-Kinekor Theatres’ written approval before entering into any agreement or marketing/promotional activities with a third party;
7.2.2.7. endeavour to ensure that the Event is conducted in a manner commensurate with industry norms; and
7.2.2.8. not conduct the Event anywhere on the property other than in and at the Venue allocated to the Hirer by Ster-Kinekor Theatres.
7.2.3. The Hirer acknowledges and agrees that it has read and is bound by the terms and conditions on Ster-Kinekor Theatre’s website, www.sterkinekor.com, which must be read together with this Agreement, and agrees and undertakes that it shall abide by and adhere to such terms and conditions. To the extent that there is any contradiction or discrepancy between the terms and conditions on Ster-Kinekor Theatres’ website and the terms contained herein, the terms contained herein shall supersede those terms.
7.2.4. The Hirer acknowledges that all attendees to the Event are its customers and undertakes to be responsible and liable for all attendees.
7.2.5. The Hirer will endeavour to ensure that all marketing and/or promotional material relating to the Event is in keeping with the general advertising standards as set down by the Advertising Standards Authority, the National Consumer Commissioner and/or any other regulatory body, from time to time.
7.2.6. In addition, the Hirer shall:
7.2.6.1. observe all relevant laws and comply with the relevant statutory rules and regulations;
7.2.6.2. ensure that it procures timeous statutory authority and statutory permits and ensures compliance with all statutory rules and regulations, that the Hirer may require to enjoy the benefits granted to it by Ster-Kinekor Theatres (in general) and to host the event (in particular);
7.2.6.3. not use the Venue for any after the Event;
7.2.6.4. after the event, make a list of any damaged and/or stolen items and immediately bring these to the attention of Ster-Kinekor Theatres;
7.2.6.5. not use the name of Ster-Kinekor Theatres without its express written consent;
7.2.6.6. provide all advertising/exhibition material relating to the Event which will be used at the Venue to Ster-Kinekor Theatres for prior written approval. Ster-Kinekor Theatres shall provide such approval within 7 (seven) business days, which approval shall not be unreasonably withheld;
7.2.6.7. not make any undertakings to third Parties for and on behalf of Ster-Kinekor Theatres without Ster-Kinekor Theatres' prior written consent;
7.2.6.8. instruct their employees or representatives concerning the obligations as set forth in this Agreement;
7.2.6.9. be responsible for its employees and representatives and ensure that they: -
7.2.6.9.1. exercise reasonable care and diligence in fulfilling their duties; and
7.2.6.9.2. perform their duties always at a standard commensurate with the instructions and requirements of Ster-Kinekor Theatres.
7.2.6.10. obtain the approval of Ster-Kinekor Theatres prior to the production of all advertising material to be used in which the branding of Ster-Kinekor Theatres appears. Ster-Kinekor Theatres shall provide such approval within 10 (ten) business days, which approval shall not be unreasonably withheld. Any use of Ster-Kinekor Theatres’ brand must be in accordance with Ster-Kinekor Theatres’ Branding Guidelines;
7.2.6.11. be responsible for all its travel, accommodation and all other expenses (if any) associated with this Agreement not specifically agreed to herein;
7.2.6.12. undertake that it shall not at any time, whether during the term of this Agreement or at any time after the termination of this Agreement for any reason whatsoever, create expectations and/or make promises to any third party which shall later create embarrassment and/or prejudice to Ster-Kinekor Theatres, nor shall The Hirer do anything or cause anything to be done which shall cause direct or indirect reputational loss to Ster-Kinekor Theatres;
7.2.6.13. not be entitled to cede, assign or dispose of in any manner whatsoever any of the rights and obligations granted to it and owed by it in terms of this Agreement;
7.2.6.14. not tamper with or in any way alter any of the utilities supplied by Ster-Kinekor Theatres to the Venue;
7.2.6.15. procure and maintain public liability at its own cost for the duration of the event, in an amount not less than R_________________ [insert amount]. The Hirer further acknowledges and agrees that should it be required by Ster-Kinekor Theatres to produce a copy of the public liability insurance policy procured by it (the Hirer) in respect of the event, same is to be produced on 12 (twelve) hours' notice failing which Ster-Kinekor Theatres shall be entitled to cancel this Agreement with immediate effect and the provisions of clause 10 shall apply;
7.2.6.16. not permit to be written, fixed or erected anywhere on the exterior of any structure, within and or near the Venue, any advertisement, signboard, writing, fixture or fitting or any other media form save with the prior written consent of Ster-Kinekor Theatres which consent shall not be unreasonably withheld or delayed;
7.2.6.17. not, save for within the facility, distribute alternatively allow the distribution of any pamphlet, handbills or any other above the line advertising, such pamphlets or printed material as are distributed within the Venue, shall have Ster-Kinekor Theatres' prior approval, which approval shall not be unreasonably withheld or delayed; and
7.2.6.18. not interfere with, hinder, obstruct, impede or any other way impact on any other co-users use and enjoyment of the Venue.
7.2.6.19. The Hirer hereby indemnifies and holds Ster-Kinekor Theatres harmless and consents to be joined in any action and/or application against Ster-Kinekor Theatres and to pay the amount of any judgment given in such matter in respect of any claim brought by any party, whether an individual, dependent of an individual, or an entity of any other nature, against Ster-Kinekor Theatres, provided such individual entity entered the premises of Ster-Kinekor Theatres on the Event Date for a purpose associated with the Event. For-
7.2.6.19.1. any personal injury or harm, including death, suffered by any such individual, their dependants or their guests (family or otherwise) howsoever and whatsoever caused;
7.2.6.19.2. any loss or damage to the property of any visitor or other entity, their dependants or their guests (family or otherwise) howsoever caused and wheresoever cause, whether occasioned by theft or otherwise;
At whatever time during the period of the Event Date and without any limitation whatsoever, be the claim either contractual or delictual in nature, including any loss and/or damage, personal injury as referred to above, due to the conduct of Ster-Kinekor Theatres or the Hirer, Ster-Kinekor Theatres' employees, service providers and agents, including negligence on their part or the part of the Hirer, without any limitation whatsoever.
7.3. Notwithstanding anything to the contrary contained herein:
7.3.1. should Ster-Kinekor Theatres in any way assist and/or guide the Hirer in any respect of make any recommendations, it does so without any onus, obligation, liability or responsibility or prejudice, to Ster-Kinekor Theatres. The Hirer relies thereon at its sole and absolute risk and Ster-Kinekor Theatres accepts no responsibility therefor whatsoever; and
7.3.2. the Hirer agrees that only a director of Ster-Kinekor Theatres has the authority to amend the terms of this Agreement or to cancel same (by mutual consent); it being recorded that any amendments to this Agreement shall be recorded in writing and signed by both parties.
8. VENUE AND SERVICES
8.1. Ster-Kinekor Theatres hereby grants the Hirer the right to utilise the Venue as detailed in this Agreement and the Hirer agrees that it will not use the Venue for any other purpose whatsoever other than for what has been stated and agreed upon herein.
8.2. The Venue, as per this Agreement, may not be changed without the express written consent of a senior Manager of Ster-Kinekor Theatres responsible for the Venue.
8.3. The Venue will have screens where digital projectors are installed, the costs of which are not included herein unless clearly stipulated in Schedule 1 hereto.
8.4. Ster-Kinekor Theatres reserves the right to alter the venue bookings in the case of an increase or reduction in the number of attendees. Notwithstanding anything to the contrary contained herein, Ster-Kinekor Theatres shall levy a surcharge where the Hirer requires the original allocated Venues for which the quotation was calculated although attendees are less than the minimum numbers for that Venue.
8.5. If the Event is unable to take place at a Venue due to technical issues or other fault occasioned directly by an act or omission on the part of Ster-Kinekor Theatres, then Ster-Kinekor Theatres shall be entitled to select appropriate alternative Venue/s alternatively, screen/host the Event on another date agreed to by both Parties. Any costs associated therewith will be for Ster-Kinekor Theatres’ account.
8.6. If the Event is unable to take place at a Venue due to an act or omission on the part of the Hirer, the Parties may agree to screen/host the Event at alternative Venue/s alternatively, screen/host the Event on another date agreed to by both Parties. Any costs associated therewith will be for The Hirer’s account.
9. USE OF VENUE
9.1. The Event will be deemed to be undesirable if it or any part thereof portrays any one or more of a variety of objectionable attributes, such as being:
9.1.1. indecent, obscene, offensive or harmful to public morals; and/ or
9.1.2. blasphemous or offensive to the religious convictions or feelings of any section of the community, the interpretation of undesirability referred to above will be determined by Ster-Kinekor Theatres’ sole discretion.
9.2. Notwithstanding any provisions to the contrary mentioned in this Agreement, although some Ster-Kinekor Theatres’ facilities are equipped with an uninterrupted power supply (UPS), no responsibility will rest with Ster-Kinekor Theatres for any failure of lights or for any interruptions of the main electric current supply.
9.3. Ster-Kinekor Theatres will not be held liable for interruptions of services (water, electricity, sanitation).
9.4. Any damage to Ster-Kinekor Theatres’ equipment during the Event must immediately be reported to Ster-Kinekor Theatres’ personnel failing which, The Hirer shall be deemed to have received all Ster-Kinekor Theatres’ equipment and facilities in good working order.
9.5. Any additional services required to be provided to the Hirer must be agreed with Ster-Kinekor Theatres in writing to the contact person as identified in Schedule 1 hereto at least 1 (one) month prior to the Event.
9.6. Ster-Kinekor Theatres provides standard audio, visual and technical equipment. This may be operated only by Ster-Kinekor Theatres staff or its appointed contractor, unless agreed to otherwise in writing.
9.7. The Hirer is responsible for any additional costs which may occur in providing security for the Event at the Venue. Ster-Kinekor Theatres reserves the right to assign their security of choice and the number of guards needed to assist Ster-Kinekor Theatres in enforcing all health and safety procedures required.
9.8. No alcohol, food or beverage may be brought onto the premises by the Hirer, customers or guests for consumption on the Venue unless by prior written agreement with Ster-Kinekor Theatres. If the Hirer contravenes the provisions of this clause, the Hirer shall be liable to Ster-Kinekor Theatres for a corkage fee, which corkage fee shall be determined by Ster-Kinekor Theatres in its sole and absolute discretion and shall be immediately payable by the Hirer to Ster-Kinekor Theatres upon written demand.
9.9. Ster-Kinekor Theatres reserves the right to use only internal suppliers which are familiar with all internal health and safety procedures and requirements. This secures the wellbeing and use of any equipment and facilities which is required by Ster-Kinekor Theatres hygiene policy and operational status.
9.10. Unless agreed to otherwise, the Hirer is responsible for the cost of cleaning the Venue at the end of the Event. This applies for both internal and external use of facilities.
9.11. Only by prior agreement whereby Ster-Kinekor Theatres suggests or is unable to fulfil the Hirer’ requirements, such as specialised equipment by reasonable means, will external suppliers be considered. A surcharge may be applied.
9.12. The Event must finish at the time specifically agreed by the Hirer with Ster-Kinekor Theatres (twenty minutes leeway will be granted by Ster-Kinekor Theatres as required, thereafter a penalty clause will be enforced on time exceeded by the Hirer).
9.13. The Venue must be left in the state and condition in which it was found by the Hirer prior to the commencement of the Event.
9.14. The Hirer is responsible for ensuring the maximum capacity of the Venue is not exceeded.
9.15. The Hirer is requested to respect the rights and property of other parties (including Ster-Kinekor Theatres) making use of the premises and other events or functions in, surrounding or near the Venue.
9.16. The Hirer shall be liable for any damage caused to the Venue or premises or any furnishings, utensils or equipment therein by the Hirer or any guest or employee of The Hirer howsoever caused and shall pay to Ster-Kinekor Theatres on demand the amount required to make good or remedy such damage, including compensation for loss of business whilst such damage is repaired;
9.17. Neither party shall incur liability to the other if the premises are closed because of fire, natural catastrophe or any other circumstance beyond the direct control of either Party on the day of the Event.
9.18. Throughout the period of use, the Venue shall remain under complete control of The Hirer, unless stipulated otherwise in writing.
9.19. Ster-Kinekor Theatres reserves the right to substitute for any Venue another venue of a capacity sufficient to accommodate the number of persons expected in the event of substitution becoming necessary due to operating difficulties or to any other cause which Ster-Kinekor Theatres could not reasonably have foreseen at the same date and time slot required by The Hirer.
9.20. All decorations are to be discussed with management at the Venue to ensure that no damage is done to the Venue. Décor, setup and flower arrangements must be completed three hours prior to commencement of the Event to allow Ster-Kinekor Theatres to do the final clearing, cleaning and preparation.
9.21. No nails or screws or any permanent fixtures may be used or placed on any walls or doors.
9.22. All goods belonging to The Hirer must be removed immediately after the end of the Event, unless otherwise arranged in writing.
9.24. In accordance with the smoking law, smoking is allowed only in designated areas.
9.25. Heaters of any sort are not allowed in the Venue, unless agreed to otherwise in writing.
9.26. The onus is on the Hirer to obtain a copy and familiarise themselves with Ster-Kinekor Theatres’ emergency evacuation procedures and the layout of the Venue including where the exits are situated.
10. OCCUPATIONAL HEALTH AND SAFETY
10.1. Mandatary as an Employer in his/her own Rights
10.1.1. The mandatary acknowledges that he/ she is an employer in his own right and shall ensure that the duties as imposed by the Act in terms of Section 16 are properly discharged.
10.1.2. Without derogating from the generality of an employer's duties as imposed by the Act the mandatary shall ensure that his duties per Section 8 of the act are properly executed.
10.1.3. The mandatary shall ensure that his activities do not impact negatively on the health and safety of persons other than his employees who may be affected as per Section 9 of the act.
10.1.4. In addition to the Act the mandatary shall comply with all laws and requirements applicable to the services provided.
10.2. Registration with the Compensation Commissioner
The mandatary shall ensure that all his employees and subcontractors as may be applicable are covered by the Compensation for Occupational Injuries and Diseases Act 130 of 1993 as amended
10.3. General Health and Safety Requirement
The mandatary:
10.3.1. undertakes to comply to all the Ster-Kinekor Theatres’ specified procedures for Occupational Health & Safety security.
10.3.2. shall ensure that all the risk associated with activities to be performed is fully assessed and adequate controls and risk mitigation strategies are implemented for the duration of the job.
10.3.3. shall ensure that all work performed within the premises is authorised and is done under supervision.
10.3.4. shall at no point utilise Ster-Kinekor Theatres’ equipment or gain access to areas outside the agreed unless prior authorisation has been granted, in case of the former Ster-Kinekor Theatres shall not be held liable for injury/ damage arising from such equipment.
10.3.5. shall be liable for any loss or damage incurred by Ster-Kinekor Theatres or its staff/ service providers should such loss/ damage arise out of the mandatary’s activities and risk mitigation strategies are implemented for the duration of the job.
11. POSTPONEMENT AND/OR CANCELLATION
11.1. Ster-Kinekor Theatres reserves the right to charge a reasonable cancellation fee for the postponement and/or cancellation of the Event by the Hirer. The reasonable fee for the postponement and/or cancellation of the Event shall be calculated as follows:
100%
2-3 days
50%
4-5 days
25%
6 6-10 days
0%
7 + 10 days
11.2. All costs incurred by Ster-Kinekor Theatres directly because of the postponement and/or cancellation will be recovered from the Hirer and/or off-set against the payment received from the Hirer in accordance with Schedule 1 hereto.
11.3. If the Hirer elects to cancel this Agreement (for any reason whatsoever) at any time prior to the Event Date, it may do so subject to the provisions of clause 11.4 below.
11.4.1. if this Agreement is cancelled whether lawfully or unlawfully, 11 (eleven) days or more prior to the commencement date, then in such event the Hirer shall forfeit 0% of the Venue Hire Costs. This shall in no way prejudice any other rights Ster-Kinekor Theatres may have;
11.4.2. If this Agreement is cancelled whether lawfully or unlawfully less then 10 (Ten) days prior to the commencement date of the event, then in such event the Hirer shall forfeit up to 100% (one hundred percent) of the Venue Hire Costs subjected to the provisions of 10.1. In such an event, the Hirer shall forfeit any deposit or pre-payment made by it to Ster-Kinekor Theatres. In such an event Ster-Kinekor Theatres always reserves all of its rights.
12. INSPECTION AND AUDIT
Ster-Kinekor Theatres shall be entitled at regular intervals to conduct audits of the bookings to the Event by the Hirer including but not limited to access to the Hirer’ booking system and the ability to track such bookings. At no point in time shall Ster-Kinekor Theatres process any personal information of the individuals contained, but the inspection shall merely be to ensure that the bookings are done for a lawful purpose and that the requisite number of individuals which will be attending the Event.
13. CONFIDENTIALITY
13.1. The parties agree to disclose Confidential Information to one another to the extent deemed necessary or desirable by each of them in their sole discretion.
13.2. The parties acknowledge that the Confidential Information is a proprietary, special, and unique asset to the Disclosing Party.
13.3. The parties agree that neither them nor any of their employees will, at any time, disclose the information to any Third Party or use the information itself for any reason or purpose whatsoever without the prior written consent of the Disclosing Party, save as in accordance with the provisions of this Agreement.
13.4. Notwithstanding anything to the contrary contained in this Agreement the parties agree that the Confidential Information may be disclosed by the Receiving Party to its professional advisors, agents and consultants on a need-it-know basis; provided that the Receiving Party takes whatever steps are necessary to procure that such professional advisors, agents and consultants agree to abide by the terms of this provision to prevent the unauthorised disclosure of the Confidential Information to any Third Party.
13.5. The Receiving Party agrees that the unauthorised disclosure of the Confidential Information to a Third Party may cause irreparable loss, harm, and damage to the Disclosing Party. Accordingly, the Receiving Party indemnifies and holds the Disclosing Party harmless against any loss, action, expense, claim, harm or damage, or whatever nature, suffered or sustained by the Disclosing Party pursuant to a breach by the Receiving Party of the provisions of this Agreement.
13.6. The obligations of the parties shall not apply to any Confidential Information that:
13.6.1. is known, or in the possession of the Receiving Party prior to the disclosure thereof by the Disclosing Party;
13.6.2. is or becomes publicly known, otherwise than pursuant to a breach of this Agreement by the Receiving Party;
13.6.3. is developed independently of the Disclosing Party by the Receiving Party in circumstances that do not amount to a breach of the provisions of this Agreement;
13.6.4. is disclosed by the Receiving Party to satisfy an order of court of competent jurisdiction or to comply with the provisions of any law or regulation in force from time to time; provided that in the circumstances, the Receiving Party shall advise the Disclosing Party to take whatever steps it deems necessary to protect its interests in this regard; provided further that the Receiving Party will disclose only that portion of the information which it is legally required to disclose and the Receiving Party will use its reasonable endeavours to protect the confidentiality of such information to the widest extent possible in the circumstances;
13.6.5. is disclosed to a Third Party pursuant to the prior written authorisation of the Disclosing Party;
13.6.6. is received from a Third Party in circumstances that do not result in a breach of the provisions of this Agreement.
13.7. Upon termination of this Agreement for whatever reason, the parties shall return to the other party, all Confidential Information as well as all relevant confidential documentation in their possession.
13.8. The parties will only use the Confidential Information for the sole purpose of complying with their obligations under this Agreement.
13.9. The contents, existence and the scope of this Agreement are Confidential Information.
14. INTELLECTUAL PROPERTY
14.1. The Parties:
14.1.1. will not, by virtue of this Agreement, obtain or claim any right, title or interest to the Intellectual Property of the other party and agrees that use of such Intellectual Property will accrue to the benefit of that other party;
14.1.2. will, in using the Intellectual Property of the other party, include all (where necessary) appropriate copyright notices and/or trademark legends necessary for the protection thereof, other than in circumstances where the Party has no control over the use of the said Intellectual Property of the other party;
14.1.3. will not use or permit the use of the Intellectual Property of the other party in any manner contrary to public morals or which would be considered deceptive or misleading or which would compromise or reflect unfavourably upon the good name, goodwill, reputation and image of the other party;
14.1.4. shall, on expiry or termination of this Agreement, for whatever reason, immediately cease all use of the Intellectual Property of the other party and deliver up (or, upon request, destroy) all materials bearing the Intellectual Property of the other party;
14.2. The Hirer specifically and expressly indemnifies Ster-Kinekor Theatres and shall keep Ster-Kinekor Theatres fully and effectively indemnified against all costs (whether direct or indirect, including costs of any settlement), claims, demands, damages (howsoever rising), expenses (including all reasonable legal expenses) and liabilities of whatsoever nature including but not limited to any action, which may be instituted or lodged by any third party for any reason whatsoever against Ster-Kinekor Theatres arising out of or in connection with any claim that the Event (or any content used in the Event) and/or any Marketing Material and/or the use by Ster-Kinekor Theatres of the Hirer’ Intellectual Property infringes the rights of a third party;
15. LIMITATION OF LIABILITY AND INDEMNITY
16. INSURANCE
16.1. It is incumbent on The Hirer to ensure that it is adequately insured in respect of liabilities to any of its items /guests /delegates /employees. Any personal property of The Hirer or anyone connected with the Event will be for the sole risk of The Hirer, who indemnifies Ster-Kinekor Theatres against any loss and/or damage whatsoever.
16.2. The Hirer will indemnify Ster-Kinekor Theatres by taking out third party insurance to cover the event for Public Liability to a minimum of R10 000 000.00 (ten million Rand) by any one occurrence. The policy must note the interests of Ster-Kinekor Theatres. Proof of insurance must be provided upon request.
16.3. The Hirer shall procure and maintain public liability at its own costs for the duration of the event, in an amount not less than R10 000 000.00 (ten million Rand). The Hirer further acknowledges and agrees that should it be required by Ster-Kinekor Theatres to produce a copy of the public liability insurance policy procured by it (the Hirer) in respect of the event, same is to be produced on 12 (twelve) hours' notice failing which Ster-Kinekor Theatres shall be entitled to cancel this Agreement with immediate effect and in the circumstances, the provisions of clause 10 above shall apply;
17. BREACH AND TERMINATION OF THIS AGREEMENT
17.1.1. Notwithstanding anything to the contrary contained in this Agreement and without prejudice to any other rights which a Party may have in law, a Party (“the aggrieved Party”) shall be entitled to cancel this Agreement upon written notice if the other Party (“the defaulting Party”):
17.1.1.1. fails to fulfil its obligations in terms hereof or commits a breach of any of its obligations and fails to fulfil such obligations or remedy such breach within three (3) weeks of receipt of a written notice requiring it to do so;
17.1.1.2. other than for the purposes of reconciliation or amalgamation, is placed under voluntary or compulsory liquidation (whether provisional or final) under receivership or under the equivalent of any of the foregoing;
17.1.1.3. has a final and unappeasable judgement against it which remains unsatisfied for a period of 2 (two) months or more after it comes to the notice of the defaulting Party;
17.1.1.4. makes any arrangement or composition with its creditors generally or ceases or threatens to cease to carry on business;
17.1.1.5. places itself into business rescue; or
17.1.1.6. in the reasonable opinion of the aggrieved Party has its financial position deteriorate materially. In the event of any one of the above events occurring, the Hirer agrees to forfeit any amount of money paid to Ster-Kinekor Theatres in the event of any of the above events occurring.
17.1.2. The Hirer further agrees that it shall immediately notify Ster-Kinekor Theatres in writing if it is to be merged, or consolidated with or into any other entity during the Term of this Agreement.
17.2. Notwithstanding the termination of this Agreement in terms of this clause 17.2, the provisions of clause 13 shall apply, mutatis mutandis.
18. FORCE MAJEURE
18.1. Should either Ster-Kinekor Theatres or The Hirer (hereinafter referred to as "the invoking Party") be prevented from fulfilling any of its obligations in terms of this Agreement because of any act of God, strike, war, riots, fire, flood, legislation, insurrection, sanctions, trade dispute or economic embargo or any similar cause beyond the reasonable control of such invoking Party (any such event hereinafter called "force majeure") then:
18.1.1. the invoking Party shall forthwith give written notice thereof to the other Party:
18.1.1.1. specifying the cause and anticipated duration of the force majeure; and
18.1.2. Performance of any such obligations shall be suspended from the date on which notice is given in terms of sub-clause 18.1.1.1 until the date on which notice is given in terms of sub-clause 18.1.1.2.
18.2. The invoking party shall not be liable for any delay or failure in the performance of any obligation hereunder, or loss or damage due to or resulting from the force majeure during the period referred to in sub-clause 18.1.1 above provided that:
18.2.1. the invoking Party uses and continues to use its best efforts and takes all reasonable steps to perform such obligation and provides the necessary notices as specified in clause 18.1.1;
18.2.2. if the force majeure shall continue for more than 10 (ten) days, the other Party shall be entitled to cancel this Agreement on the expiry of such period with immediate effect on written notice, but shall not be entitled to claim damages against the invoking Party because of the delay or failure in the performance of any obligations hereunder due to or resulting from the force majeure, except as otherwise provided in this Agreement.
19. DOMICILIA AND NOTICES
19.1.1. Ster-Kinekor Theatres: as detailed on page 1.
19.1.2. The Hirer: as detailed on page 1.
19.2. Any notices or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing and delivered to the addresses as set out in clause 19.1 above.
19.3. Any notice given in terms of this Agreement shall be in writing and shall:
19.3.1. if delivered by hand to a responsible person during normal business hours and in respect of which receipt has been acknowledged under signature of a duly authorised or responsible person shall be deemed, unless the contrary is proved, to have been duly received by the addressee on the date of delivery;
19.3.2. if transmitted by facsimile to a Party at its facsimile address shall be deemed, unless the contrary is proved, to have been received within twelve (12) hours of transmission where it is transmitted during normal business hours or within twelve (12) hours of the first Business Day after it is transmitted where it is transmitted outside those business hours.
19.4. In the event that either Party should move premises or change address, it shall notify the other Party in writing accordingly at its domicile address, such change shall be effected only upon receipt of notice in writing by the other Party of such change. A notice shall also be necessary in respect of a new or changed telefax number.
19.5. Notwithstanding anything to the contrary contained in this Agreement, a written notice or communication received by a Party shall be an adequate written notice of communication to such Party.
20. GOOD FAITH AND CO-OPERATION
20.1. The Parties shall display utmost good faith in all their dealings with each other.
20.2. The Parties shall use their best endeavours to co-operate as contemplated in this Agreement.
21. PRIOR ARRANGEMENTS, AGREEMENTS AND UNDERSTANDINGS
21.1. This Agreement is intended to cancel any prior arrangements, agreements or understandings of any nature whatsoever that may exist between one or more or all the parties regarding any aspect, matter or thing referred to herein.
21.2 This Agreement shall novate any such prior arrangements, agreements or understanding (if any) and shall be the sole memorial of the parties' rights and obligations viz-a-viz each other and as referred to herein.
22. APPLICABLE LAW
The Agreement shall in all respects be governed by and be construed in accordance with the law of the Republic of South Africa and all disputes, actions, and other matters in connection therewith shall be determined in accordance with such law.
23. GENERAL
23.1. No Party shall have any claim or right of action arising from any undertaking, representation or warranty not included in this Agreement.
23.2. No waiver, relaxation or indulgence afforded by either Party to the other shall be deemed to be a waiver of such Party's rights and such Party, by due notice to the other, shall have the right at any time and from time to time to insist upon the due and punctual fulfilment of the terms and conditions of this Agreement.
23.3. This Agreement may be executed in any number of counterparts, each of which, when executed and delivered shall be an original, but all of which when taken together shall constitute a single instrument.
23.4. All the provisions of this Agreement shall be severable and no provision shall be affected by the invalidity of any other provision of this Agreement.
23.5. In the event that there is any conflict between the terms and conditions contained in the Appendices, Annexures and Schedules and/or Exhibits attached hereto, and the terms and conditions contained in the body of this Agreement, the terms and conditions contained in the body of the Agreement shall prevail unless otherwise stated herein.
23.6. This Agreement shall be binding on and enforceable by the trustees, permitted assigns, business rescue practitioner/s, liquidators or other legal successors of Ster-Kinekor Theatres and the Hirer as fully and effectually as if they had signed this Agreement in the first instance and reference to Ster-Kinekor Theatres and the Hirer shall be deemed to include Ster-Kinekor Theatres’ and the Hirer’ trustees, permitted assigns, liquidators or other such legal successors.
23.7. No variation or alteration of this agreement shall be of any force or effect unless it is recorded in writing and signed by or on behalf of both parties.
23.8. This Agreement together with the Appendices, Annexures and Schedules, Exhibits or other attachments, constitute the entire Agreement between Ster-Kinekor Theatres and the Hirer and supersede all proposals, oral and written between the Parties on this subject.
23.9. The Parties undertake not to cede, assign, delegate, sub-contract or contract with a third Party to fulfil any obligation as provided for in terms of this Agreement, unless the written consent of the other Party is obtained, which consent cannot be unreasonably withheld.
23.10. Nothing contained in this Agreement shall be construed to constitute the Hirer and Ster-Kinekor Theatres as partners, joint ventures, agents, or representatives of one another and accordingly, the Hirer has no authority to act on behalf of Ster-Kinekor Theatres or to bind Ster-Kinekor to any third party and indemnifies Ster-Kinekor Theatres accordingly.
23.11. All work/services carried out by the Hirer under this Agreement shall in all respects comply with the requirements of all laws, enactments, proclamations and notices relating to occupational health and safety, conditions of employment, electrical compliance and all other laws, by-laws, ordinances or statutes which may be applicable to any actions by the Hirer in terms of this Agreement.
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