Event Contractor Terms and Conditions
Nokturnl Events Pty Ltd General Terms and Conditions for Purchase of Goods and Services 2016
1. Definitions and Interpretation
Definitions
1.1. The following words have these meanings in this Contract unless the contrary intention appears:
1) Contract means this Contract together with the Purchase Order and any Schedules or Annexures;
2) Contractor means the person, firm or company named as the Contractor in the Purchase Order and includes the officers, employees, agents, sub-contractors and guests of the Contractor;
3) Delivery Date means the delivery date as described in the Purchase Order;
4) Delivery Point means the delivery point as described in the Purchase Order;
5) Event means the event as described in the Purchase Order;
6) Event of Force Majeure means any event or circumstance or combination of events or circumstances which is beyond the control and without the fault or negligence of the Party affected and which by the exercise of reasonable diligence the Party affected was unable to prevent and which prevents a Party from performing its obligations under this Contract, limited to the following:
a) riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not), acts of terrorism, civil war, rebellion, revolution, insurrection of military or usurped power, requisition or compulsory acquisition by any governmental or competent authority;
b) earthquakes, flood, severe (in so far as the Event can no longer be held) rainfall, lightning or other physical natural disaster;
c) strikes at national level or industrial disputes at a national level, or strikes or industrial disputes by labour not employed by the affected Party, but excluding any industrial dispute which is specific to the performance of this Contract;
7) Goods means the goods, if any, as described in the Purchase Order;
8) Party means you or us and includes the party’s executors, administrators, successors and permitted assigns;
9) Price means the amount as described in the Purchase Order;
10) Services means the services to be performed by you, if any, as described in the Purchase Order;
11) Site means the physical site or sites where the Event is being held, as described in the Purchase Order;
12) Standards mean all industry standards and government regulations applicable to the Goods or Services;
13) Substantial Breach means a serious or wilful breach of the Contract and includes:
a) any breach of an applicable law pertaining to occupational health and safety, alcohol, drugs, environment or planning;
b) any act or omission that causes us to be in breach of any applicable law pertaining to occupational health and safety, alcohol, drugs, environment or planning;
c) any breach of the Contract that causes us to be in breach of any agreement that we have with a third party or any approval that we have with respect to the Event;
14) You and your means the person named in the Contract as the Contractor;
15) We and us means Nokturnl Events Pty Ltd ABN 51 148 876 466.
Interpretation
1.2. In this Contract unless the contrary intention appears:
1) a reference to this Contract or another instrument includes any variation or replacement of either of them;
2) the singular includes the plural and vice versa;
3) a person includes a firm, a body corporate, an unincorporated association or an authority;
4) if a period of time is specified and dates from a given day or the day of an actual event, it is to be calculated exclusive of that day;
5) a reference to a clause or schedule is a reference to a clause or schedule in this Contract;
6) “Including” and similar expressions are not words of limitation.
1.3. All monetary amounts are in Australian dollars, unless otherwise stated.
1.4. If a Party consists of more than one person this Contract binds them jointly and each of them severally.
1.5. Headings are for convenience only and do not form part of this Contract or affect its interpretation.
1.6. In the interpretation of this Contract, no rule of construction will apply to the disadvantage of a Party because that Party was responsible for the drafting of this Contract or any clause of it.
2. Execution
2.1. The Parties agree that the Contract is deemed to be executed upon the earlier of:
1) The delivery by you to us of the signed Purchase Order;
2) The delivery of Goods by you to the Site; or
3) The commencement of Services by you.
3. Site and Environment
3.1. We agree to provide you with access to the Site as reasonably required for the proper performance of the Services or furnishing of the Goods. You acknowledge that nothing in this clause 3 confers upon you exclusive access to the Site.
3.2. In carrying out the Services or furnishing the Goods you will endeavor not to interfere with any other occupier or user of the Site and you must comply with Schedule 3.
3.3. You must:
1) ensure that all of your personnel are made aware of and obey any directions in force at the Site in respect of the safety, security and operation of the Site; and
2) conduct, provide or participate in any safety or emergency training as may be required by us.
3.4. You must:
1) comply with all environment controls, including any relevant strategy prepared by us;
2) comply with all applicable environmental laws, guidelines and code of practice;
3) comply with any direction or request by us relating to the environmental performance of the Site;
4) indemnify us and our employees, agents and contractors against any losses, costs, expense, damage or liability of any nature suffered or incurred as a result of environmental harm or breach of any environmental legislation or requirement arising in connection with performance of the Services or furnishing of Goods, as caused by any of your act or omission.
5) at your own expense, where caused by any of your act or omission, do all that is required or considered necessary by us:
a) in order to mitigate a possible contamination or harm to the environment;
b) to remedy any environmental harm caused as a result of the performance of the Services or furnishing of Goods; or
c) in order to comply with any notice or order issued under any relevant environmental legislation in relation to the performance of the Services or furnishing of Goods.
4. Invoicing, Payment and Security
4.1. Each invoice submitted by you must include details of the value of the Services performed by you or Goods furnished by you and may include details of other moneys due to you under this Contract; and
4.2. The invoice must be based on the rates and Price set out in the Purchase Order and be submitted within 14 days of the last day of the Event.
4.3. When submitting your invoice under clause 4.2, you must provide us with all relevant records and any other information requested by us to enable us to verify the amount of the invoice.
4.4. Subject to your compliance with clauses 4.1 to 4.3, we agree to pay you the amount set out in the invoice submitted by you under clause 4.2 as provided below:
1) by the later of 14 days of the last day of the Event to which it relates, or, where the invoice is provided in accordance with clause 4.2, within 14 days of the delivery of the invoice;
2) if the invoice is submitted within 180 days of the date of the Event to which it relates, within 180 days of the delivery of the invoice;
except to the extent that:
3) you submit the invoice more than 360 days after the date of the Event to which it relates in which case we have no obligation to pay the invoice;
4) we exercise our right to set off part of the invoice under clause 4.5; or
5) we dispute the invoice, in which case:
a) we agree to pay the undisputed part of the invoice (if any) and withhold the balance pending resolution of the dispute in accordance with clause 10; and
b) if the resolution of the dispute determines that we are to pay an amount to you, we agree to pay that amount upon resolution of the dispute.
4.5. We may withhold, retain or set off from any payment due to you under this Contract amounts we deem necessary to protect us against any costs, charges, expenses and damages for which you may be liable to us under or in connection with this Contract. This right to withhold, retain or set off does not limit our right to recover those amounts in any other way.
4.6. Without limiting any other remedy we may have, any debt due and owing from you to us under or in connection with this Contract may be deducted by us from any other moneys otherwise payable to you in connection with this Contract.
5. Representations and Warranties
5.1. In relation to Services, you warrant that:
1) the Services will be performed with all the skill and care to be expected of appropriately qualified and experienced contractors with experience in performing services of a similar size, type, nature and complexity to the Services;
2) your performance of the Services will comply with all applicable laws and the requirements of any government authority;
3) you possess all relevant authorisations, permits and licences to perform the Services; and
4) the Services will be performed in a timely and professional manner in accordance with this Contract.
5.2. In relation to Goods, you warrant that:
1) the Goods are of merchantable quality;
2) the Goods are free from defects in design, materials and workmanship and suitable for the relevant purpose of the Goods; and
3) you have full and unencumbered title to the Goods immediately prior to that title passing to us in accordance with clause 6.2;
6. Delivery, Title and Risk
6.1. You must deliver the Goods to the Delivery Point in accordance with the Delivery Date.
6.2. Full and unencumbered title to the Goods will pass to us upon the earlier of:
1) us making payment in full to you for those Goods;
2) the Goods being delivered to the Delivery Point and accepted by us; or
3) where the Contract specifies that the Goods are to be held by you on a consignment basis (whether at the Site or otherwise), when the Goods are delivered to the Delivery Point.
6.3. Risk in the Goods will remain with you until the Goods are delivered to and accepted by us in accordance with clause 6.2.
7. Insurance
7.1. You must maintain during the period of this Contract:
1) a comprehensive public liability policy to cover all sums which you may become legally liable to pay as compensation consequent upon:
a) death of, or bodily injury (including disease or illness) to, any person; and
b) loss of, or damage to, property,
in connection with the performance of the Services or furnishing of the Goods.
2) insurance in respect of all claims and liabilities arising, whether at common law, code or under statute relating to workers compensation or employer’s liability, from any accident or injury to any person employed by you in connection with this Contract and you must ensure that all subcontractors are similarly insured in respect of their employees;
3) a policy of insurance against any and all liability, loss and damage of any kind whatsoever (including consequential loss) arising directly or indirectly from the use, non-use, failure, breakage or any other act, omission or matter arising in respect of plant, equipment, tools, appliances or other property owned, rented or hired by you and used in relation to this Contract; and
4) any other insurance required by law, or otherwise reasonably required by us.
7.2. You must notify us immediately of any cancellation of or change to a relevant insurance policy which affects our interests.
8. Termination
Termination for convenience
8.1. We may terminate this Contract at any time and in our sole discretion by giving you 3 days prior notice.
8.2. If this Contract is terminated by us in accordance with clause 8.1, we will only be liable for the payment of the Services performed or the Goods furnished prior to the date of termination and for extra costs necessarily and reasonably incurred by you as a result of termination subject to our rights of set off.
Termination for Substantial Breach
8.3. We may immediately terminate this Contract if you commit a Substantial Breach.
Termination for financial fault
8.4. We may terminate this Contract at any time by notice to you, without prejudice to our rights at law or otherwise, if you take any action or any steps are taken or legal proceedings started for:
1) your winding up, dissolution, liquidation or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by us (which approval will not be unreasonably withheld); or
2) the appointment of a controller, administrator, official manager, trustee or similar officer to you or any of your revenues and assets.
Termination for Force Majeure
8.5. If an event of Force Majeure occurs, we may terminate this Contract without further notice, with such termination to take effect immediately.
No payment for certain terminations
8.6. Where we terminate this Contract under clauses 8.3 to 8.5, you have no right to payment of any kind other than the right to retain payments already made for the performance of the Services or furnishing of the Goods.
8.7. If we terminate this Contract in accordance with clause 8.1 you may send us a written claim prepared in accordance with clause 8.9 and supported by records to enable us to verify the amounts in the written claim within 30 days after the termination date.
8.8. The remedy set out in clause 8.7 is your sole and exclusive remedy in respect of us terminating this Contract.
8.9. A written claim must only include:
1) the Price for the Services or the Goods provided to us prior to the termination date and not included in any previous payment;
2) the extra costs you actually and reasonably incurred prior to the termination date in the expectation of providing the Services or Goods, and not included in any previous payment by us,
and must not include any additional amount for anticipated profit, unperformed Services, unfurnished Goods or consequential loss or damage or any other indirect cost, loss or damage.
Return of deposits
8.10. If this Contract is terminated:
1) under clause 8.1, any deposit paid to you by us must be returned but may have a deduction made for any amount owing to you by us in accordance with clause 8.2; and
2) under clauses 8.3 to 8.5, any deposit paid to you by us must be returned without any deduction whatsoever.
9. Liability and Indemnity
9.1. You acknowledge that if you enter on to the Site, you do so at your own risk.
9.2. You are liable for and indemnify us against any liability and any loss or damage of any kind whatsoever arising directly or indirectly from:
1) any breach of any warranty or any of the other terms and conditions of this Contract by you;
2) your illness, injury or death arising out of or in connection with this Contract;
3) any loss or damage arising out of, or in connection with, any personal injury, illness or death to any person or damage to any property or any other loss or damage of any kind whatsoever caused or contributed to by the performance of the Services or furnishing of Goods;
4) any negligence or wilful act or omission by you in connection with this Contract;
5) any claim made against you in respect of any relevant legislation concerning income tax, workers compensation, annual leave, long service leave, superannuation or any applicable award, determination or Contract of a competent industrial tribunal;
6) any penalty imposed for breach of an applicable law in connection with the performance of the Services or furnishing of Goods;
7) loss or damage to any plant, equipment, tools, appliances or other property owned, rented or hired by you and used in relation to this Contract;
8) any claim that the Services or Goods infringe or allegedly infringe the Intellectual Property Rights of any person; and
9) any liens or charges lodged or notified which are lodged or notified as a consequence of your failure to pay, or delay in making payments to, any subcontractor or employee.
9.3. Every exemption, limitation, defence, immunity or other benefit contained in this Contract to which we are entitled will also be held by us to the benefit of, and will extend to protect, each of our employees, agents, contractors and subcontractors (but does not extend to you, your employees, agents, contractors and subcontractors).
9.4. Each indemnity in this Contract is a continuing obligation separate and independent from your other obligations and survives termination of this Contract.
9.5. It is not necessary for us to incur expense or make payment before enforcing a right of indemnity conferred by this Contract.
9.6. We will not be liable to you in any circumstances for any indirect, special or consequential loss or damage, including but not limited to loss of revenue, loss of production, loss of goods, loss of contract or loss of profit howsoever arising and whether in an action in contract, tort (including without limitation, negligence), in equity, product liability, under statute, or on any other basis.
10. Dispute Resolution
10.1. If a dispute arises, the Parties must, prior to the initiation of any legal proceedings, meet in good faith to try and reach a reasonable and equitable resolution of the dispute.
10.2. Neither Party may commence legal proceedings unless the Parties have undertaken the process set out in clause 10.1 and that process has failed to resolve the dispute or one of the Parties has made a proper and reasonable attempt to follow that process and the other Party has failed to participate.
10.3. Despite the existence of a dispute, the Parties must continue to perform their respective obligations under this Contract.
11. Entire Contract
This Contract constitutes the entire Contract between the Parties and sets out a full statement of the contractual rights and liabilities of the Parties in relation to the Goods and Services and no negotiations between them or any document agreed or signed by them prior to the date of this Contract in relation to the Goods or Services is of any effect.
12. Severance
12.1. Any clause of this Contract which is prohibited or unenforceable in any jurisdiction is ineffective in that jurisdiction to the extent of the prohibition or unenforceability. This does not invalidate the remaining clauses of this Contract nor does it affect the validity or enforceability of that clause in any other jurisdiction.
12.2. Where a clause is prohibited or unenforceable, the Parties must negotiate in good faith to replace the invalid clause by a clause which is in accordance with the applicable law and which must be as close as possible to the Parties’ original intent and appropriate amendments (if any) will be made to this Contract.
13. Other Matters
13.1. Any of our rights under this Contract may only be waived by us in writing signed by a duly authorised representative of us.
13.2. This Contract may not be varied except in writing signed by a duly authorised representative of each of the Parties.
13.3. We may exercise a right, remedy or power in any way we consider appropriate.
13.4. If we do not exercise a right, remedy or power at any time, this does not mean that we cannot exercise it later.
13.5. You are not to assign the Purchase Order or any part of this Contract without our prior written consent (which consent may be given or withheld at our absolute discretion).
13.6. To the extent of any inconsistency between the Purchase Order and the General Conditions, then the General Terms and Conditions will prevail.
13.7. To the extent of any inconsistency between the General Terms and Conditions and any schedules (including any documents referred to in the schedules), then the General Terms and Conditions will prevail.
13.8. To the extent of any inconsistency between the Purchase Order and any schedules (including any documents referred to in the schedules), then the Purchase Order will prevail.
13.9. To the extent of inconsistency in the standard to which the Services are to be performed, the higher standard will prevail.
13.10. Our rights, remedies and powers under this Contract are in addition to any rights, remedies and powers provided by law.
14. Governing Law
14.1. This Contract is governed by the laws of Western Australia.
14.2. The Parties agree to submit to the exclusive jurisdiction of the courts of Western Australia.
