TERMS & CONDITIONS OF ENGAGEMENT
Thank you for choosing Spirit Events & Entertainment to provide the Services. These Terms & Conditions form the basis on which Spirit Events & Entertainment will undertake Events & Entertainment Services. This may be supplemented by special Terms & Conditions, definitions of Services and/or Scope of Work and details of Fees & Expense Charges.
Upon commencement of the Services:
a). You appoint Spirit Events & Entertainment as your Provider of the Services; and
b). Spirit Events & Entertainment accepts its appointment as a Provider and agrees to provide the Services to you, on the terms set out in the Proposal.
1. IMPORTANT INFORMATION
Application of Terms & Conditions
Unless otherwise stated these Terms & Conditions apply to and form part of all Engagements by Spirit Events & Entertainment, whether a printed version of these Terms and Conditions has been provided to You by Spirit Events & Entertainment or whether You have viewed them on Spirit Events & Entertainment’s website located at spirirtevents.com.au
Modification of Terms & Conditions
Spirit Events & Entertainment may modify the Terms & Conditions at any time on 30 days notice to You and such modifications shall be effective at the expiry of the notice period. The most current version of the Terms & Conditions can be reviewed by clicking on the "Terms & Conditions" hypertext link located at the bottom of the Spirit Events & Entertainment web site, located at spirirtevents.com.au
“Client” means the Person, the Company or Corporate Body/Group together with any Subsidiary or associated Company as defined by the relevant laws of Western Australia.
"Engagement" means the agreement between Spirit Events & Entertainment and a Client whether written or otherwise whereby Spirit Events & Entertainment agrees to perform services for the Client and includes these Terms & Conditions.
"Fee" means the fee set out in the Proposal.
"Party" means a party to this Engagement and "Parties" has a corresponding meaning.
"Person" includes a natural person, body corporate or trust or any other entity capable of entering into an Engagement.
"Proposal" means the Proposal relating to this Engagement.
"Terms & Conditions" means these terms and conditions and any annexure attached hereto.
"Engagement Date" means the date as agreed between the Parties, on which the service is to be provided.
"We", "Us" and "Spirit Events & Entertainment" means Spirit Events & Entertainment or its employees, servants, agents or consultants as the case may be. "You" means the Client and includes any servant, agent, employee or consultant of the Client as the case may be and "Your" has a corresponding meaning.
3. POSTPONEMENT & CANCELLATION POLICY
Assignments cancelled one (1) month prior to the scheduled date will be charged at 25% of the agreed fees, including any associated fees deemed as irrecoverable. These charges will be waived if the Client agrees to reschedule the assignment within three months of the original Engagement Date prior to the scheduled date will be charged at 100% of the agreed fees, including any associated fees deemed as irrecoverable. This will be waived if the Client agrees to reschedule the Engagement within three months of the original assignment date.
4. FORCE MAJEURE
Where either Party is unable, wholly or in part, by reason of force majeure, to carry out any obligation pursuant to the Engagement, and that Party:
a) gives each other Party prompt notice of that force majeure including reasonable particulars, and, in so far as known, the probable extent to which it will be unable to perform or be delayed in performing that obligation;
b) uses all possible diligence to remove that force majeure as quickly as possible, that obligation is suspended so far as it is affected by force majeure during the continuance of that force majeure and that Party shall be allowed a reasonable extension of time to perform its obligations. If after a period of six months, the force majeure has not ceased, the Parties shall meet in good faith to discuss the situation and endeavour to achieve a mutually satisfactory resolution to the problem. In this Engagement, "force majeure" means an act of God, strike, lockout or other interference with work, war (declared or undeclared), terrorist activities, blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental or quasi governmental restraint, expropriation, prohibition, intervention, direction or embargo, unavailability or delay in availability of equipment or transport, inability or delay in obtaining governmental or quasi governmental approvals, consents, permits, licenses, authorities or allocations, and any other cause, whether of the kind specifically enumerated above or otherwise which is not reasonably within the control of the party affected.
For Entertainment, Spirit Events & Entertainment may substitute an alternative performer if the staff specified are unable to provide the service.
If Spirit Events & Entertainment considers it appropriate to do so, it may with the Client’s prior approval, which shall not be unreasonable withheld, engage another Contractor to assist Spirit Events & Entertainment in specialist areas. The Client accepts responsibility for all monies payable to such other Contractor.
6. NON - EMPLOYMENT OF SPIRIT EVENTS & ENTERTAINMENT PERSONNEL
During the period that Spirit Events & Entertainment provides services to You, You shall not directly or indirectly through any associated company employ or enter into any agreement with for the provision of services either as a consultant or independent contractor, or offer any position or employment to any Spirit Events & Entertainment employee, whether permanent or contracted. You acknowledge that any breach of this provision will result in substantial damage to Spirit Events & Entertainment and You agree that in the event of breach of this provision You will pay to Spirit Events & Entertainment by way of liquidated damages, and not as a penalty, a sum equal to the gross annual salary (or remuneration as otherwise determined in the case of contracted employees) for any employee at the rate of pay current at the time of breach.
7. SCOPE OF EXCLUSIONS
The items listed below are excluded from the scope of services provided by Spirit Events & Entertainment pursuant to the Engagement unless otherwise expressly agreed in the Proposal:
a). Spirit Events & Entertainment will make no attempt to ensure compliance with relevant Accounting Standards, tax laws, or proper record keeping.
b) Spirit Events & Entertainment will make no audit or other verification of any data or information You provide to it.
c). Although Spirit Events & Entertainment makes every effort to discover weaknesses and potential errors, due to the complex nature of large spreadsheets, it cannot guarantee that its work is free from error
Spirit Events & Entertainment’s Fees for services and products are exclusive of GST and are set out in the Proposal, or as otherwise agreed between the Parties in writing.
Invoices will be accompanied by a detailed timesheet where relevant and will be rendered monthly, payable within thirty (30) days.
10. OVERDUE ACCOUNTS
Interest will be charged on all accounts not paid within thirty (30) days of the invoice due date at the rate charged by Westpac Bank on overdrafts of less than $100,000.00. Interest will be calculated on a daily basis from the date of the account to the date of payment unless Spirit Events & Entertainment agrees to waive the interest claim in writing. Each time interest is raised, an administration fee of $50 will also be applied. Spirit Events & Entertainment reserves the right to employ the services of a debt collection agency at its discretion for any account not paid within 45 days of the invoice due date. The Client will be liable for all costs incurred in collecting the outstanding account.
11. LIMITATION OF LIABILITY
Any potential claim against Spirit Events & Entertainment or its staff is limited to the lesser of ten times the total Fees rendered by Spirit Events & Entertainment for this assignment, or A$250,000.
The Client shall indemnify Spirit Events & Entertainment against all liabilities, claims, costs or expenses (including legal fees and disbursements) incurred by Spirit Events & Entertainment in respect of any third party claim which is related to, arises out of, or is in any way associated with the products or services provided by Spirit Events & Entertainment, except to the extent that such claims, costs or expenses arise out of the negligent, wrongful or wilful acts or omissions of Spirit Events & Entertainment.
You indemnify Spirit Events & Entertainment against any Claim:
a). relating to the proper performance by Spirit Events & Entertainment of its obligations under this agreement;
b). resulting from Your fraudulent, negligent or unlawful behaviour;
c). relating to the data and other materials provided to Spirit Events & Entertainment by You;
d). resulting from a breach of the terms of this agreement by You;
e). resulting from the use of the IP by You; or
f). resulting from Your use or misuse of the Deliverables.
13. INTELLECTUAL PROPERTY
Spirit Events & Entertainment retains all rights over the use or reproduction of the intellectual property developed in this assignment until all invoices are paid in full, or otherwise agreed in writing by Spirit Events & Entertainment. Except for the ongoing, personal and non-transferable right to use the deliverables resulting from this Engagement, You shall not obtain or be granted any intellectual property rights to any deliverable or material supplied by Spirit Events & Entertainment. You shall not take any action by way of copying, disseminating, transmitting, accessing, or use of any system that may infringe or may be inconsistent with the intellectual property rights of Spirit Events & Entertainment or its licensors. For the purpose of this clause, intellectual property rights means without limitation, copyright, patent rights, design rights or trade secrets in connection with the deliverables and their source code, or any source code, scripts or interfaces supplied by Spirit Events & Entertainment and any methodologies or process involved in the performance of this assignment or any deliverable or materials provided by Spirit Events & Entertainment.
You are not permitted to sell or otherwise distribute the applications Spirit Events & Entertainment develops for You nor individual components without written authorisation from a Director of Spirit Events & Entertainment.
The Client acknowledges that Spirit Events & Entertainment owns copyright in all documents prepared by Spirit Events & Entertainment and that those documents must not be reproduced, published, copied, distributed or altered in any way without Spirit Events & Entertainment’s prior written permission.
During the course of this Engagement, You may provide Spirit Events & Entertainment with certain information of a confidential nature to enable it to complete the assignment.
a). Spirit Events & Entertainment acknowledges that all written and oral information furnished to it by You and your officers, employees, advisers or agents is valuable and confidential.
b). Spirit Events & Entertainment will not use the information except for the purpose of completing this Engagement or subsequent Engagements You may request of it.
c). Spirit Events & Entertainment agrees that:
i) Spirit Events & Entertainment will not use or disclose any information without prior written consent from You;
ii) Spirit Events & Entertainment will only disclose the information on a "need to know" basis to our directors, officers, employees, and professional advisers; and
iii) Spirit Events & Entertainment will use its best endeavours to ensure that our directors, officers, employees and professional advisers to whom the information is disclosed comply with the obligations imposed on it
iv). If this Engagement does not proceed for any reason whatsoever, Spirit Events & Entertainment will, within 7 days of receipt of a demand from You, return to You or destroy any information supplied by You which is in a physical form and which is in the possession, custody or control of Spirit Events & Entertainment.
v). Our obligations under this Engagement do not apply to any information which: (a) Spirit Events & Entertainment is required by law or by the listing rules of Australian Stock Exchange Limited to disclose; (b) is in or enters the public domain otherwise than by breach of this Engagement;
(c) is already known to Spirit Events & Entertainment; or (d) is acquired by Spirit Events & Entertainment from a person who was not under an obligation of confidentiality relating thereto.
vi). Spirit Events & Entertainment acknowledges that the value of the confidential information to you may be unique and therefore impractical or difficult to assess in monetary terms. Accordingly if an actual or threatened violation of this Engagement occurs Spirit Events & Entertainment will consent to the enforcement of this Engagement by injunctive relief or specific performance without proof of actual damage.
vii). These confidentiality provisions shall expire five years from the date of execution of this Engagement.
16. CLIENT LIST
You agree that Spirit Events & Entertainment may add your organisation's name to the Spirit Events & Entertainment list of Clients for use by Spirit Events & Entertainment in sales material. Spirit Events & Entertainment agrees not to disclose information about your organisation or cause it to be used as a reference site, without your prior approval.
17. SERVICES OUTSIDE THE SCOPE OF THIS ENGAGEMENT
You may request that Spirit Events & Entertainment performs additional services at a future date not contemplated by the Engagement. If this occurs, You may request that Spirit Events & Entertainment communicate with You regarding the scope and estimated cost of these additional services. If You do not request an estimate, Spirit Events & Entertainment will provide its services to you on a time and materials basis, using the rates set out in the Proposal, as amended by Spirit Events & Entertainment from time to time. Engagements for additional services may necessitate that Spirit Events & Entertainment issue a separate engagement letter to reflect the obligations of both Parties.
18. TERMINATION BY SPIRIT EVENTS & ENTERTAINMENT
Spirit Events & Entertainment may terminate this Engagement, effective immediately, and stop acting for the Client if:
a) The Client does not comply with this Engagement;
b) Spirit Events & Entertainment forms the opinion that mutual confidence and trust do not exist between Spirit Events & Entertainment and the Client;
c) The Client requires Spirit Events & Entertainment to act in an unethical or unlawful manner;
d) Any type of insolvency administrator is appointed in respect of the property or affairs of the Client. These rights are in addition to any other rights of termination in this Engagement or at law. All Fees payable by the Client (whether these have been invoiced or not) will remain payable following termination;
e). Spirit Events & Entertainment will use its best endeavours to minimize costs following the receipt of notice of termination or postponement.
19. VARIATION TO ENGAGEMENT
This Engagement may not be varied except in writing and with the consent of both Parties save as provided for in this Engagement. Spirit Events & Entertainment may send the Client written notice of a variation of this Engagement including any proposed increase in hourly rates and the Client's continued instruction of Spirit Events & Entertainment after the date of receipt of that notice shall constitute the Client's acceptance of that variation.
20. CONTINUING ENGAGEMENTS
In the absence of a further set of terms and conditions, these Terms and Conditions will apply to any future engagement by the Client of Spirit Events & Entertainment.
Spirit Events & Entertainment retains ownership of its own files and the contents thereof and is entitled to retain all documents and personal property in its possession provided by the Client until the matter is completed and all the invoices for Fees are paid in full.
The Engagement shall be governed by and construed in accordance with Western Australian law and any dispute, controversy or claim arising out of or in connection with this Engagement or the breach, termination or invalidity of this Engagement shall be referred to the non-exclusive jurisdiction of the Supreme Courts of Western Australia.
23. REASONABLE CARE
Spirit Events & Entertainment will take reasonable care in providing the products and services to the Client. If the Client makes a claim against Spirit Events & Entertainment for breach of contract and the loss, injury or damage the Client suffers as a result of Spirit Events & Entertainment’s negligence and the Client's negligence, the Client's claim will be reduced as if the claim was based in negligence to the extent of the Client's contributory negligence.
All surveys, forecasts and recommendations are made in good faith on the basis of the information before us at that time. Notwithstanding anything herein contained, neither Spirit Events & Entertainment nor its Agents are liable for any loss or other consequence arising out of the services rendered by Spirit Events & Entertainment.
The Client shall not in any way assign or deal with interests under the Engagement without Spirit Events & Entertainment’s prior written consent. Where the Client is a corporation it is deemed to have assigned the Engagement if there is a change in control of the shareholding in the Client.
Spirit Events & Entertainment shall not be deemed to have waived any of its rights under the Engagement unless such waiver is in writing.
If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause relating to service of documents, security or indemnity is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this Engagement, but the rest of this Engagement is not affected.
All notices which are required to be given under this Engagement shall be in writing and shall be sent to the address of the recipient set out in the Proposal or such other address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand or by pre- paid letter or email. Any such notice shall be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by pre- paid letter) or on transmission by the sender (if sent by email).
Services will be delivered by a suitably qualified Spirit Events & Entertainment representative in accordance with the schedule set out in the Engagement letter.
Products ordered from Spirit Events & Entertainment will be delivered to the Client via courier, Australia Post, or in person by a Spirit Events & Entertainment representative at Spirit Events & Entertainment’s discretion. Clients should note that some Products are supplied directly by the producer of those products. In this case, the producer's delivery policy will apply. This will be noted in the Engagement letter.
Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity or termination, shall be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Perth, Western Australia. The language of the arbitration shall be English. The number of arbitrators shall be one. This provision shall not prevent Spirit Events & Entertainment from instituting legal action at any time to recover moneys owing by the Client to Spirit Events & Entertainment.
30. REFUND & RETURNS POLICY
If for any reason you are not completely satisfied with your purchase, please contact us through www.spiritevents.com.au so that we can resolve any problems. Spirit Events & Entertainment does not provide refunds or returns for the services provided. Any credits due shall be credited to the account to be taken up against future work.
Please refer to the appropriate proposal document. Proposals shall remain valid for 60 days. Subsequent to this time the proposal contents may be subject to revision.
TERMS & CONDITIONS OF ENGAGEMENT