Cassis Events and Productions Pty Ltd (“Cassis”) and the Client (as described in the accompanying Proposal) agree that any services, including subsequent services and charges (collectively the Services), to be provided by Cassis relating to the Proposal will be on the following Terms and Conditions. Collectively the Proposal and the following Terms and Conditions form the Agreement between the Client and Cassis.
1. Standard of Care – Cassis shall provide the Services with such skill, care and diligence as is ordinarily exercised in similar circumstances at the time the Services are provided. Cassis shall provide the Client the opportunity to provide feedback regarding the provision of the Services at any time.
2. Safety – Cassis shall be responsible only for its activities and that of its employees and nothing shall imply that Cassis has any responsibility for the safety of the Client, its employees or its agents. Tours and activities may include some element of risk. Cassis assumes no liability for injuries, death, loss or damage of any kind experienced by the Client or other third parties at any time during or after the Services.
3. Transport – Unless otherwise agreed and provisioned for in the accompanying Proposal, the Client, its employees or agents are to provision for, organise and assume all costs for all transport necessary to arrive and depart from the Cassis event and productions venue(s).
4. Prices - Price quotations as described in the accompanying Proposal are valid for 60 days unless otherwise stated. If for any reason the price quoted is not correct, Cassis will contact the client for authorization.
5. Payment – The Client shall pay to Cassis the Fees and Expenses as set out in the Proposal without set off or deduction. Where this Agreement has been entered into or authorised by an Agent (or a person purporting to act as an Agent) on behalf of the Client, the Agent and the Client shall be jointly and severally liable for payment of all accounts due to Cassis under this Agreement. All monies payable by the Client to Cassis shall be paid under the conditions set out in the Proposal. Where payment conditions are not set-out in the Proposal; payment will be made by the Client within thirty (30) days of the date of the invoice. Monies not paid within that period shall attract interest from the date of the invoice until payment at a rate of 1.5% per month, plus debt collection fees where applicable. Client shall notify Cassis within ten (10) days of receipt of any invoice of any dispute with the invoice and the parties will promptly meet to resolve the dispute. Unless such notification is received by Cassis, the Client agrees the invoice will be deemed valid and payment is due under the terms of this Condition.
6. Rates – The rates set out in the Proposal are applicable for 6 months after acceptance of the Proposal or the duration of the Services, whichever is lesser. Thereafter the Rates shall be reviewed and adjusted with respect to market conditions.
7. Limitation of Liability - To the maximum extent permitted by law:
(a) Cassis does not guarantee or warrant that the Client and its employees participating in the proposed Services will enjoy or have deemed to have learned from the proposed Services to their perceived levels of satisfaction. If the Client is not satisfied with a provided Service, the Client will have no recourse to claim any loss or damages whatsoever from Cassis, its employees, directors or agents. Client cannot withhold payment of the Services in this respect. Cassis reserves the right and at its discretion to provide the Client with any refund.
(b) Cassis shall not under any circumstance be liable to the Client in respect to any indirect, consequential or special losses (including loss of profit, loss of business opportunity and payment of liquidated sums or damages under any other agreement).
(c) Cassis will be deemed discharged from all liability in respect of the Services, whether under the law of contract, tort, or otherwise, after the completion of the Services, the date of invoice in respect of the final amount claimed by Cassis pursuant to Clause 5, or the termination of this Agreement, whichever is earliest. The Client shall not be entitled to commence any action or claim whatsoever against Cassis or any employee, agent or sub-consultant of Cassis in respect of the Services after that date.
(d) The provisions of Clause 7 are subject to the provisions of Part V of the Trade Practices Act 1974 (as amended) or any other law which cannot be excluded, restricted, or modified by agreement.
8. Ownership and Use of Work Product - Intellectual property and copyright in all drawings, reports, software, and other documents (“work materials”) provided by Cassis in the provision of the Services shall remain the property of Cassis.
9. Third party reliance - Unless expressly agreed by Cassis, no third party may rely upon any work material provided under this Agreement. The Client indemnifies Cassis from any unlicensed use of or reliance on said work material.
10. Confidentiality – Neither the Client nor Cassis shall disclose to third parties or use for any purpose (other than providing or benefiting from the Services) any information provided by the other unless required by law or the information is already available to the public, or the other consents to the disclosure.
11. Dispute - Any dispute between the Client and Cassis shall be notified in writing by the aggrieved party to the other within 7 days of the onset of the dispute. It shall be handled as follows:
(a) Within 7 days of notification, the parties and their principals shall meet in good faith, without legal representation, in an attempt to resolve the dispute.
(b) If the dispute is not resolved, it shall be the subject of mediation, administered in accordance with procedures as set out by the Institute of Arbitrators and Mediators Australia. The dispute shall be adjudicated and mediated in that State of Australia from which the Proposal that is the subject of this Agreement originated. The mediator shall be appointed by the President of that State Chapter of the Institute of Arbitrators and Mediators Australia.
(c) The costs of the mediation shall be borne equally by the parties to the dispute.
(d) Any dispute not able to be resolved by mediation may then be the subject of legal action, at which time this provision shall not prevent either party from pursuing all other remedies.
(e) Notwithstanding the subject of the dispute, the parties agree to continue to perform all other obligations under this agreement.
12. Termination - Either party may terminate its obligations under this Agreement in the event of a substantial breach by the other party of its obligations and the breach has not been remedied within 30 days of a written notice requiring the breach to be remedied; OR without cause upon giving the other party 30 days' written notice of its intention to do so. Cassis may suspend or terminate its obligations under this Agreement in the event of monies payable to Cassis for the Services being outstanding for more than 30 days.
13. Assignment - Neither party and their respective successors may assign, transfer, or sublet any obligation under this Agreement without the prior written consent of the other party. Unless stated in writing to the contrary, no assignment, transfer, novation or sublet shall release the assignor from any obligation under this Agreement.
14. Subconsultants - If Cassis considers it appropriate to do so, it may, with the Client’s prior written approval, engage other parties to assist Cassis in provision of the Services. Such written permission from the Client cannot be unreasonably withheld. The Client acknowledges that Cassis may have retained other parties affiliated with Cassis to provide Services for the benefit of Cassis. To the maximum extent allowed by law, the Client acknowledges and agrees it will not have any direct legal recourse to, and waives any claim, demand, or cause of action against, Cassis’s affiliated companies, and their employees, officers and directors.
15. Miscellaneous –
(a) This Agreement shall be subject to the laws of the State of Australia (Victoria).
(b) This Agreement is the entire Agreement between the parties for the provision of the Services in the Proposal and supersedes all other agreements, representations, correspondence, and discussions in connection with the Services. In particular, no terms incorporated into or referenced by any Purchase Order, however and whenever presented, shall at any time operate to amend or substitute for the terms of this Agreement.
(c) If any Clause of this Agreement is found to be inoperable due to illegality, such Clause is severed from the Agreement and the rest of the Agreement remains in force.
(d) Nothing in this Agreement, nor in the performance of the Services, shall be construed as creating a relationship of agency, partnership, or other relationship other than that of Client and Consultant between the parties.