Terms and Conditions
SERVICES AGREEMENT
This services agreement is made on date specified on signed proposal and/or date of "engagement period"
between
Sydney Event Technical Specialists PTY LTD (SETS)
and
Client stated on Proposal (Client)
1. Definitions and Interpretation
1.1. Definitions
In this Agreement unless the context indicates otherwise, the following words will have the following meanings:
SETS means Sydney Event Technical Specialists PTY LTD
Client means the person/s, entities or any person acting on behalf of and with the authority of Client requesting SETS to provide services as specified in proposal, invoice or other documentation
Proposal means the document describing the services and or equipment to be provided by SETS
Engagement Period means the period after a signed proposal has been received by SETS until final payment has been made and/or services delivered as set out in proposal
Equipment means all equipment, accessories and peripherals listed on the proposal and including all associated components not listed which is owned and/or operated by SETS.
Background IP means the Intellectual Property of a Party which was in existence prior to the commencement of this agreement or which is subsequently developed by that Party independently of and for purposes unconnected with this agreement.
Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).
Confidential Information includes any information marked as confidential and any information received or developed during the term of this Agreement, which is not publicly available and relates to processes, equipment and techniques used in the course of the engagement period. This includes all information, data, drawings, proposals, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans.
Consumer Guarantee means a guarantee applicable to the supply of goods or services which is incorporated into this agreement pursuant to division 1 part 3-2 of the Australian Consumer Law.
Contract IP means Intellectual Property created by the Supplier in the course of performing its obligations under this agreement.
Deliverable means the goods or services to be supplied by the Supplier pursuant to this agreement.
Fee(s) means the total costs set out in the proposal.
Force Majeure Event means any occurrence or omission as a direct or indirect result of which the Party relying on it is prevented from or delayed in performing any of its obligations under this agreement and which is beyond the reasonable control of that Party and could not have been prevented or mitigated by reasonable diligence or precautionary measures, including forces of nature, natural disasters, acts of terrorism, riots, revolution, civil commotion, epidemic, industrial action and action or inaction by a government agency but does not include any act or omission of a subcontractor.
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, service marks, designs, patents, circuit layouts, plant varieties, business and domain names, database rights, confidential information, know how, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields existing anywhere in the world, whether or not registered or capable of registration, and any goodwill associated with such activity and any applications, renewals and extensions of such rights.
Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.
Parties means SETS and Client, and Party means either one of them.
Personal Information has the meaning as defined in any applicable Privacy Law.
Privacy Law means any legislation or administrative requirement (as amended from time to time) imposing an obligation in relation to the collection, use, disclosure, storage and transmission of Personal Information which is applicable to a party in the performance of its obligations under this agreement, including without limitation any codes, principles or guidelines contained in or arising out of such legislation.
Services means the services to be provided by SETS under this agreement.
Supplier’s Personnel means any person or persons that the Supplier designates to perform the Services on the Supplier’s behalf.
Termination Date means the earlier of:
(a) the date of termination of this Agreement by Client or SETS; and
(b) the date of expiry of this Agreement.
1. 2. Interpretation
In this Agreement unless the context otherwise requires:
(a) words importing any gender include every gender;
(b) words importing the singular number include the plural number and vice versa;
(c) words importing persons include firms, companies and corporations and vice versa;
(d) references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this Agreement;
(e) reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
(f) any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
(g) the headings to the clauses and schedules of this Agreement are not to affect the interpretation;
(h) any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or by-law made under that enactment; and
(i) the word "including" (and related forms including "includes") means "including without limitation".
2. Other Terms, Items or Amendments
(a) Terms, Items, Amendments and other notes which are outlined within the specific customer proposal, sponsorship offer or charity partnership shall be adopted and take place over and above any related items in this agreement.
3. Acceptance
(a) The Client has accepted the proposal when a signed copy of the proposal or an email confirmation has been received by SETS followed by your deposit fee.
(b) Notwithstanding clause 2.a in the event of any inconsistency between the terms and conditions in this agreement and any other document or schedule that the parties have entered into. The terms of this contract shall prevail.
4. Services
(a) SETS will provide the Services to Client in consideration for Client paying the Fee to SETS, subject to the provisions of this agreement.
(b) SETS and Client will agree on the time and place for the performance of the Services.
(c) SETS will use reasonable endeavours to complete the Services including the provision of data, materials or reports by the dates specified in the proposal or any other dates agreed by the Parties.
(d) The Services will be performed by the employees or agents that SETS may choose as most appropriate to carry out the Services as agreed, from time to time by the Parties.
(e) The Services to be performed as agreed by the Parties, the time estimates for the provision of the particular Services, and the Fee(s) will be set out in the proposal.
5. Location
SETS will provide the Services in places and locations as set out in the proposal.
6. Fee(s)
6. 1. Payment of Fees
(a) In consideration of the provision of the Services in accordance with this agreement, Client will pay SETS the Fee outlined in proposal.
(b) A deposit may be required to secure the equipment and the date as outlined in the proposal. This deposit will not be refunded if there is a cancellation or change to the event.
6.2. Invoicing
(a) SETS will provide Client with a tax invoice in accordance with the GST Law in relation to Fees payable under this clause 6
(b) Payment will be made by Client to SETS within 14 days after receiving SETS’s invoice.
(c) When making a payment, Client must quote relevant reference numbers and the invoice number.
(d) The invoice referred to in clause 6.2(b) must include the following details before payment can be approved and forwarded:
(i) date of Services;
(ii) the ABN of SETS;
(iii) description of Services provided.
6.3. Costs and disbursements
SETS is permitted to charge for all costs and expenses incurred in performing the Services, including travelling, photocopying, courier services, parking and postage.
6.4. Failure to pay
If Client does not make a payment by the date stated in an invoice or as otherwise provided for in the agreement, SETS is entitled to do any or all of the following:
(a) charge a late fee of 10% of the total invoice amount for every month overdue;
(b) require Client to pay, in advance, for any Services (or any part of the Services) which have not yet been performed; and
(c) not perform any further Services (or any part of the Services).
6.5. Disputed invoices
If Client disputes the whole or any portion of the amount claimed in an invoice
submitted by SETS, Client must:
(a) pay the portion of the amount stated in the invoice which is not in dispute in accordance with the terms of payment set out in this agreement; and
(b) notify SETS in writing (within 5 days of receipt of the invoice) of the reasons for disputing the remainder of the invoice.
6. 6. Cancellations
(a) The Client may cancel the contract at any time by submitting it in writing to SETS. Any deposit paid will not be refunded
(b) The Cancellation fee is set out as follows: within 4 weeks- 25% of fee, within 3 weeks- 40% of fee, within 2 weeks- 60% of fee, within 1 week 80% of fee, within 48hour notice- 100% of fee.
(c) The Client acknowledges that the cancellation fee is a genuine pre-estimate of the loss suffered by SETS in the event of cancellation.
6. 7. Postponed events
(a) The Client may postpone services within an agreed proposal by up to 2 months of the original proposed date while keeping the deposit. If the new date falls outside of the 2 month period then the event is seen as a cancellation and clause 6.6 will apply.
7. Client's Obligations
(a) During the preparation of the proposal and performance of the Services Client will:
(i) cooperate with SETS as SETS reasonably requires;
(ii) provide the information and documentation that SETS reasonably requires;
(iii) and ensure that Client’s staff and agents cooperate with and assist SETS.
8. No partnership or employment relationship
(a) Nothing in this agreement constitutes the relationship of employer and employee between Client and SETS or between Client andSETS’s Personnel.
(b) It is the express intention of the Parties that any such relationships are denied.
9. Use of subcontractors
(a) SETS is permitted to use other persons to provide some or all of the Services.
(b) SETS is responsible for the work of any of SETS’s subcontractors.
(c) Subject to clause 8(d), any work undertaken by any of SETS’s subcontractors will be undertaken to the same standard as stated in this agreement and the proposal.
(d) To the extent that the terms of any subcontract stipulate a higher standard for any of the Services than the standards set out in this agreement (including as to timing or quality), any Services provided by the relevant subcontractor will be governed by the terms and conditions of that subcontractor’s subcontract.
10. Disclosure and ownership of intellectual property
(a) The Parties agree that, other than as expressly provided in this clause, nothing in this agreement transfers or grants to any Party any right, title or interest in or to any Intellectual Property in any Background IP. SETS grants to Client a worldwide, royalty free, perpetual, irrevocable, non-transferable, non-exclusive licence to use the Background IP to the extent necessary for Client to derive full benefit from its acquisition of the Deliverables for this agreement only.
(b) Client acknowledges that ownership of the Contact IP remains vested in SETS. SETS grants to Client an exclusive, perpetual, fully paid-up, irrevocable, worldwide licence to use the Contract IP for the sole purpose of enabling Client to derive full benefit from its acquisition of the Deliverables for this agreement only.
(c) Client agrees to indemnify SETS fully against all liabilities, costs and expenses that SETS may incur if the Contract IP or Background IP infringes the rights of a third party.
(d) SETS may photograph, video or record by any and all means the project for the duration thereof, and upon completion, for SETS own use and for use in exhibitions, or award competitions, or publication in Journals and social media, subject to clause 11 of this agreement.
(e) If the Client publicises or permits the publication of the project, SETS must be given full credit for it's role in the project.
(f) The obligations accepted by all Parties under clause 10 survive termination or expiry of this agreement.
11. Confidentiality
(a) A Party which receives Confidential Information (Recipient) from the other Party (Discloser) must keep the Discloser’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
(b) The Recipient’s obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by the Discloser.
(c) At the Termination Date, or when earlier directed by the Discloser:
(i) all Confidential Information must be returned to the Discloser, including all
copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Recipient makes and any software that the Recipient creates based on the Confidential Information; and
(ii) the Recipient must erase and destroy any copies of any software containing or comprising the Confidential Information in the Recipient’s possession or under the Recipient’s control or that may have been loaded onto a computer possessed or controlled by the Recipient.
(d) The Confidential Information does not include information which:
(i) is generally available in the public domain otherwise than as a result of a breach of clause 11(a) by the Recipient; or
(ii) was known by the Recipient prior to the Discloser disclosing the information to the Recipient.
(e) The Recipient agrees that the Discloser may require any of the Recipient’s personnel to sign a confidentiality agreement in a form that the Discloser approves, as a condition of the Discloser’s acceptance of any of the Recipient’s personnel.
(f) The Recipient agrees to indemnify the Discloser fully against all liabilities, costs and expenses which the Discloser may incur as a result of any breach of this clause 10 by the Recipient.
(g) The Recipient acknowledges that damages may be an inadequate remedy for breach of this clause 10 and that the Discloser may obtain injunctive relief against the Recipient for any breach of this clause 11
(h) The obligations accepted by the Recipient under this clause 11survive termination or expiry of this agreement.
12. Warranties, liability and indemnities
12. 1. Warranties
(a) SETS warrants that it will use reasonable care and skill in performing the Services and to the standard generally accepted within the industry, sector or profession in which SETS operates for the type of Services provided by SETS.
12.2. Insurances
SETS must take out the following insurance:
(a) worker’s compensation insurance as prescribed by law for SETS’s Personnel; and
(b) public liability insurance.
12. 3. Employees and subcontractors
(a) SETS covenants that SETS is solely responsible for payment to SETS’s employees and agents of all amounts due by way of salary, superannuation, annual leave, long service leave and any other benefits to which they are entitled as SETS’s employees or agents.
(b) SETS must otherwise comply with legislation applicable to SETS’s employees and agents.
12.4. Compliance with all laws
Throughout this agreement SETS must comply at SETS’s own cost and expense with all acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, state and local government departments, bodies, and public authorities or other authority. This requirement applies to SETS or to the Services.
12. 5. Limitation on liability
(a) Except in the case of death or personal injury caused by SETS’s negligence, the liability of SETS under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Fees paid by Client to SETS under this agreement. The provisions of clause 12.5(a) will not apply to clause 12.4.`
(b) SETS's liability for failure to comply with a Consumer Guarantee is limited to:
(i) in the case of goods supplied to Client, the replacement of the goods or the supply of equivalent goods (or the payment of the cost to the Client of the replacement or supply), or the repair of the goods (or the payment of the cost to the Client of the repair); and
(ii) in the case of services supplied to Client, the supply of the services again or the payment of the cost to the Client of having the services supplied again.
12.6. No reliance
Each of the Parties acknowledges that, in entering into this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.
12.7. Survival of obligations
The obligations accepted by SETS and Client under this clause 12 survives termination
or expiry of this agreement.
13. Privacy
(a) Client is responsible for obtaining all relevant consents from, and providing all relevant notices to, individuals whose Personal Information is provided by Client to SETS in connection with this agreement so as to ensure that SETS's dealings with that information pursuant to this agreement comply with SETS's obligations under any Privacy Laws.
(b) Client must indemnify SETS against, and must pay SETS on demand the amount of, all Losses, liabilities, costs and expenses arising out of its failure to comply with clause 13(a).
(c) Client must:
(i) immediately notify SETS if it becomes aware of any unauthorised access to, or unauthorised disclosure of, Personal Information under its control by virtue of this agreement, and provide advice as to whether it considers that such security breach may result in serious harm to any individual to whom the information relates;
(ii) comply with any directive from SETS as to which Party will discharge any statutory reporting obligation arising from the incident;
(iii) conduct or assist SETS in conducting a reasonable and expeditious assessment of the breach or suspected breach; and
(iv) ensure compliance with all mandatory data breach reporting obligations arising out of the breach or suspected breach.
14. Termination
(a) Either Party may terminate this Agreement by notice in writing to the other if the other Party notified:
(i) fails to observe any term of this Agreement; and
(ii) fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 3 days notice of the breach being given in writing by the notifying Party to the other Party.
(b) Either Party may terminate this Agreement immediately upon the happening of any of the following events:
(i) if the other Party commits a material breach of the agreement which is incapable of rectification;
(ii) if Client enters into a deed of arrangement or an order is made for it to be wound up;
(iii) if an administrator, receiver or receiver/manager or a liquidator is appointed to Client pursuant to the Corporations Act; or
(iv) if Client would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act.
(c) Upon termination of this agreement any fees, expenses or reimbursements payable by Client to SETS in respect of any period prior to the Termination Date must be paid by Client within 7 days after the Termination Date.
15. General
15. 1. Force Majeure
(a) Neither Party has any liability under or may be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from a Force Majeure Event.
(b) The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
(c) If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this agreement by written notice to the other Party.
15.2. Amendments
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
15. 3. Assignment
(a) Subject to clause (b), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party.
(b) A Party may assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
15. 4. Waiver
(a) No failure or delay by SETS in exercising any right, power or privilege under this Agreement will impair the same or operate as a waiver of the
same nor will any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
(b) The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
15. 5. Agency, partnership etc
(a) This Agreement will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
(b) Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
15.6. Further assurance
Each Party to this Agreement will at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
15.7. Severance
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and will not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
15. 8. Announcements
(a) Subject to clause (b), no Party will issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes the other Party with a copy of such announcement or information and obtains the approval of the other Party to its terms.
(b) No Party will be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.
15.9. Notices
A notice or other communication connected with this Agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in this Agreement, or sent by facsimile to the facsimile number of the addressee.
15.10. Work, health and safety
SETS must comply with all relevant work, health, safety and welfare standards and regulations determined by Client or as prescribed by legislation.
15.11. Law and jurisdiction
This Agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in New South Wales, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of New South Wales