This Agreement made between the Operator and BUTTONED UP EVENTS PTY LTD ATF BUTTONED UP EVENTS UNIT TRUST TRADING AS ‘THE BUCKS CO’ / ‘HOUSE OF HENS’ / ‘TEAM DAYS’ (ABN: 85 378 266 065) (collectively, BUTTONED UP EVENTS)
A. BUTTONED UP EVENTS operates a business as a booking service assisting its customers with event management for functions including, but not limited to bridal, hens and bucks parties, group events, corporate team building, and other team events.
B. BUTTONED UP EVENTS has agreed to appoint the Operator as a preferred Operator to BUTTONED UP EVENTS to supply the Operators Products and Services as detailed in the New Operator Form.
C. The Operator has authorised BUTTONED UP EVENTS to offer and promote its Operators Products and Services for the duration of this Agreement.
D. The Operator acknowledges that this Agreement does not oblige BUTTONED UP EVENTS to promote its Operators Products and Services to any particular extent, or at all.
E. The Operator agrees to pay commission to BUTTONED UP EVENTS in consideration for the opportunity to act as preferred provider and following resultant bookings in the Products and Services detailed in the New Operator Form.
1.1 DEFINITIONS AND INTERPRETATION
Definitions: In this agreement unless the context otherwise requires:
“Operator" means the party identified in Step One as detailed in the New Operator Form
"Operators Products and Services" means the provision of products and services by the Operator as detailed in New Operator Form.
"Booking" means a reservation made to reserve the provision of the Operators Products and Services for a specified time.
"Business Day" means any day other than a Saturday, Sunday or a statutory public holiday in Victoria, Australia.
"Commencement Date" means the date specified as such in the Key Information and Terms.
"Commission" has the meaning in clause 6.
"Customer" means any individual, company, group or body whether incorporated or unincorporated for whom BUTTONED UP EVENTS arranges or facilitates a Booking.
"Price" means the total price as detailed in New Operator Form, subject to change with 30 days written notice by the Operator to BUTTONED UP EVENTS, payable by the Customer to the Operator, including GST and before deducting BUTTONED UP EVENTS’s Remuneration.
"GST" means in Australia, goods and services tax chargeable, or to which a person may be liable, under A New Tax System (Goods and Services Tax) Act 1999, and any penalties, additional tax or interest payable in respect of goods and services tax.
"Guaranteed Operator Products and Services" means any guarantee provided by the Operator to BUTTONED UP EVENTS for Operator Products and Services and detailed in New Operator Form. In the event that the Operator Products and Services are overbooked, Commission will be payable to BUTTONED UP EVENTS and BUTTONED UP EVENTS Customer’s will be prioritised over any other customers.
"Key Information and Terms" means the terms detailed in New Operator Form.
"Losses" means all costs, losses, liabilities (including legal and other professional expenses on a full indemnity basis and GST and similar taxes), claims, demands, damages, fines, reparations and penalties including any consequential or indirect losses, economic losses or loss of profits.
“New Operator Form” means the form completed by the Operator when registering to become a new operator.
"Promotional Material" means, whether in printed or electronic form, any brochures, advertisements, website content or material, communications and marketing material of any nature used to promote the Operators Products and Services.
"Representative" of a party means an employee, agent, affiliate, or contractor of that party.
"Website" means any website or websites used by the Operator to promote the Operators Products and Services to actual and potential Customers, including the websites with the domain names stated in the Key Information and Terms.
2. APPOINTMENT AND TERM
2.1 Appointment: The Operator wishes to market, promote and sell its Operator Products and Services defined in the New Operator Form to BUTTONED UP EVENTS Customers for the duration of the Term.
2.2 Status of relationship: Nothing in this agreement shall create or evidence any partnership, joint venture, trust or employer/employee relationship between the parties and a party may not make, or allow to be made, any representation that any such relationship exists between the parties. A party shall not have authority to act for, or to incur any obligation on behalf of, the other party, except as expressly provided for in this Agreement.
2.3 Non-exclusivity of Agreement: BUTTONED UP EVENTS and the Operator acknowledge and agree that this Agreement does not confer on the Operator an exclusive right to supply BUTTONED UP EVENTS with its Operator Products and Services.
2.4 No minimum value: BUTTONED UP EVENTS and the Operator acknowledge and agree that this agreement has no minimum value and that BUTTONED UP EVENTS acts as an agent performing functions as a booking service.
2.5 Term: This agreement shall commence on the Commencement Date and continue for 12 (twelve) months (Initial Term). Where BUTTONED UP EVENTS then engages the services of the Operator after the Initial Term, and those services are accepted by the Operator for a Customer, this agreement shall automatically extend for consecutive 12 (twelve) month periods thereafter, commencing from the date of acceptance of the services by the Operator on each occasion (Additional Term), unless either party provides at least 1 (one) month written notice of its intention to terminate.
3. BUTTONED UP EVENTS RESPONSIBILITIES
3.1 BUTTONED UP EVENTS agrees to promote the Operator’s Products and Services to its customers.
3.2 The BUTTONED UP EVENTS, through its employees, agrees to promptly communicate proposed bookings to the Operator for confirmation by either telephone or e-mail.
4. OPERATORS RESPONSIBILITIES
4.1 The Operator shall provide each Customer with, or direct the Customer to its own Operator Terms and conditions.
4.2 If the Operator has represented to any Customer or BUTTONED UP EVENTS that a Booking of that Customer is guaranteed; or has been confirmed, the Booking is binding upon the Operator and the Product or Service must be provided, with BUTTONED UP EVENTS Customers being prioritised over any of the Operator’s existing customers.
4.3 Standard of Products and / or Services: BUTTONED UP EVENTS and the Operator acknowledge and agree that the Operator’s Product and/or Services are to be promoted by BUTTONED UP EVENTS as an extension of BUTTONED UP EVENTS’s services and the Operator warrants that it will ensure that its products and services are provided to the highest possible standards and quality, in accordance with relevant Australian law, and charge a price that is no more than reasonable having regard to market rates for similar products and or services.
4.4 Health and Safety: The Operator warrants that it is compliant with all current legislative requirements including but not limited to the relevant Work Health and Safety Acts and Regulations in the State in which this agreement is executed including any amendments, including, without limitation, reviewing and maintaining in force all necessary licences, consents and other documents and permits required for those purposes to comply with any applicable Health and Safety regulations.
4.5 The Operator undertakes to pay to BUTTONED UP EVENTS all commission and remuneration due in accordance with this agreement.
4.6 The Operator undertakes to provide BUTTONED UP EVENTS with at least 3 months notice in writing of any change in its products and/or services including its rates for the provision of same.
4.7 Sale of the Operator’s Business: If the Operator proposes to sell its business, the Operator must give BUTTONED UP EVENTS written notice of 30 days before the proposed settlement of the sale and upon such notice this Agreement will terminate and a new Agreement will be forwarded to the new owner’s for acceptance.
5.MARKETING AND PROMOTION
5.1 Publicity: Neither party shall make a public announcement or distribute any publicity about this agreement; or the other party; without the prior consent of the other party.
5.2 Own expense: Any promotion, marketing or sales by an Operator shall be conducted at the Operator's cost and the Operator shall bear the cost of any Promotional Material it produces.
5.3 Operator Information:
(a) The Operator agrees to promptly provide BUTTONED UP EVENTS with Marketing and Promotional Material of its products and/or services to on receipt of a request from BUTTONED UP EVENTS.
(b) The Operator warrants that its Marketing and Promotional material is true and correct and not misleading or deceptive, and does not contain any material which is obscene, offensive or defamatory.
(c) The Operator warrants that all intellectual property rights (including copyright) in the information are owned by the Operator, or alternatively, that the Operator is licensed to use the information in the manner described in this Agreement.
(d) The Operator agrees to ensure that it regularly updates the information provided to BUTTONED UP EVENTS and keeps BUTTONED UP EVENTS regularly informed of any circumstances which a prospective customer would reasonably want to be aware of before acquiring its products and/or services.
5.4 Marketing initiative:
(a) The parties acknowledge and agree that they will jointly establish a marketing initiative (“marketing initiative”) with the aim of promoting their products and/or services and that the respective contributions of each party towards the marketing initiative will be governed by a separate agreement.
5.5 Operator’s Website: The Operator agrees that it shall not, without the prior written approval of BUTTONED UP EVENTS, publish or cause to be published on any website on which it purports to advertise BUTTONED UP EVENTS’s services or hold itself out as an Operator of BUTTONED UP EVENTS.
6. TERMS OF TRADE
6.1 BUTTONED UP EVENTS shall be entitled to Commission and Remuneration as detailed in New Operator Form.
6.2 GST: All prices are to be quoted inclusive of GST for which the Operator is liable.
6.3 BUTTONED UP EVENTS may deduct from or set off against any amount that is payable by it to the Operator, in relation to this agreement, any amount that is or may become payable to it by the Operator in relation to this agreement or otherwise.
6.4 Where any payment owed by the Operator to BUTTONED UP EVENTS remains outstanding for more than 30 days, BUTTONED UP EVENTS reserves the right to a) apply interest at the Cash Target Rate determined by the Reserve Bank of Australia, plus 3 percentile points (3%) to all tax invoices that are more than 14 days overdue; b) assign any debts payable to BUTTONED UP EVENTS to a third party without consultation with you. The Operator agrees to indemnify BUTTONED UP EVENTS from and against all costs and disbursements incurred by BUTTONED UP EVENTS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and client basis, our collection agency costs, and bank dishonour fees
6.5 BUTTONED UP EVENTS may change its payment process with one month written notice.
7.1 The Operator warrants that it will maintain for the Term of agreement, and for a reasonable time thereafter, valid and enforceable insurance policies with a reputable insurance company at its cost. The policies are to cover:
(a) applicable Public and Products Liability cover on an "occurrence basis" for a limit of no less than $10,000,000;
(b) is in respect of all liability for claims arising for any loss or damage to any persons or property resulting directly from or in connection with any event occurring during the performance of this agreement, caused by the negligence of Operator or otherwise; and
(c) any other insurance cover that may be specific to the provision of the Operator’ Products and Services.
7.2 Proof of insurance: The Operator agrees to provide to BUTTONED UP EVENTS, upon commencement of this agreement, upon any change to insurance cover or upon request thereafter a certificate of insurance that the insurance it is required to maintain under this clause is in force.
7.3 Other insurance: The Operator shall ensure that its employees, contractors or agents have sufficient insurance for the products and services they perform in relation to this agreement.
8.1 Exclusion of warranties conditions, etc:
(a) The Operator agrees to indemnify BUTTONED UP EVENTS against all liability for representations, breach of either express or implied terms, warranties, guarantees, or conditions whether implied by statute, common law or custom of the trade or otherwise, including, but not limited to, implied warranties, guarantees or conditions of merchantability and fitness for a particular purpose.
(b) THE parties agree that BUTTONED UP EVENTS’s liability to the Operator or any Operator Representative is limited to circumstances where BUTTONED UP EVENTS has breached an express provision of this agreement (including but not limited to negligence on the part of BUTTONED UP EVENTS or its employees).
8.2 No representations: The Operator acknowledges that it does not rely on any representation or statement made by or on behalf of BUTTONED UP EVENTS other than the express provisions of this agreement.
8.3 No liability for consequential losses, etc: The parties acknowledge and agree that BUTTONED UP EVENTS shall not be liable for any loss of profits or any consequential, indirect or special damage or loss of any kind whatsoever suffered by Operator or any Operators' Representative.
8.4 Limitation of liability: Notwithstanding anything else contained in this agreement, the liability of BUTTONED UP EVENTS to the Operator shall not in aggregate exceed the Commission for the Booking in respect of which the liability arises.
8.5 Indemnity: the Operator shall indemnify BUTTONED UP EVENTS against:
(a) any claim against BUTTONED UP EVENTS by the Operators’ customers, employees, contractors, or any other person in respect of any Losses arising from any cause relating to or concerning the provision of the Operators Products and / or Services;
(b) any liability or cost incurred by BUTTONED UP EVENTS as a result of any breach; or potential breach by the Operator or any of its Representatives of any provision of this agreement or the Operators Products and/or Services.
8.6 All liability on the part of either of the parties which comprise more than one person or entity will be joint and several.
9. DEFAULT AND TERMINATION
9.1 Default: A Default occurs if any one or more of the following occurs:
(a) Operator defaults in performance of its obligations under this agreement or under any other contract with BUTTONED UP EVENTS.
(b) The Operator ceases to provide any or all of its products and/or services;
(c) Operator becomes insolvent or is adjudicated bankrupt or an application is made for its liquidation or a liquidator or receiver is appointed in respect of its assets.
(d) Operator no longer carries on business or threatens to cease carrying on business.
(e) A change of ownership or effective control of Operator occurs or the nature of Supply Partner’s business is materially altered.
(f) Any other event which BUTTONED UP EVENTS considers may materially adversely affect the ability of Operator to perform any of its obligations under this agreement.
9.2 Enforcement upon default: If a Default occurs, BUTTONED UP EVENTS, without prejudice to any other rights or remedies, may at its option do any one or more of the following with immediate effect:
(a) Suspend this agreement in which case BUTTONED UP EVENTS shall not be obliged to perform any of its obligations under this agreement during the period of suspension. Any suspension shall not prevent BUTTONED UP EVENTS from terminating this agreement during the period of suspension; or
(b) Determine that the Operator shall trade under other payment terms as determined by BUTTONED UP EVENTS or
(c) Terminate this agreement with immediate effect.
9.3 Termination for convenience: BUTTONED UP EVENTS may terminate this agreement for any reason at any time from the Commencement Date by giving the Operator no less than one month written notice.
9.4 Operator's rights upon termination: Upon expiry or termination of this agreement, except as a result of a breach of its terms by BUTTONED UP EVENTS, all the rights of the Operator under this agreement shall forthwith cease. The Operator shall not be entitled to make any claim against BUTTONED UP EVENTS for compensation or damages that do not relate to breach of this Agreement. The expiry or termination of this agreement shall not affect any provision of this Agreement which is intended to continue after such expiry or termination.
9.5 Operator's obligations upon termination: The Operator shall:
(a) Pay all outstanding amounts owed to BUTTONED UP EVENTS.
(b) Deliver to BUTTONED UP EVENTS or destroy, as required by BUTTONED UP EVENTS, without retaining copies of them all confidential information including all know-how, customer lists, instruction materials, brochures, manuals, data bases and other information (whether in written or electronic form or otherwise) and material relating to the BUTTONED UP EVENTS Brands in the possession or control of the Operator and thereafter shall not use or exploit any such information or material supplied by BUTTONED UP EVENTS or acquired by the Operator in any way relating to BUTTONED UP EVENTS Brands.
(c) Cease use of BUTTONED UP EVENTS Brands and not thereafter use any such BUTTONED UP EVENTS Brand confusingly similar to it.
10. FORCE MAJEURE
10.1 Neither party will be liable for any act, omission, or failure to fulfil its obligations under this agreement if such act, omission or failure arises from any cause reasonably beyond its control, including acts of god, strikes, lockouts, riots, acts of war or terrorism, epidemics, governmental action, fire, telecommunications service failures, power failures, earthquakes, floods, slips or other disasters. Nothing in this clause shall excuse a party from any obligation to make a payment when due under this agreement.
10.2 Termination: If a party is excused from performance of this agreement under clause9.1 for a period of two months or more from the giving of the notice either party may terminate this agreement immediately by notice to the other party.
11.1 In the event of any dispute, disagreement or any differences arising between the parties concerned or in any way arising out of this Agreement, including any questions regarding this Agreement’s existence, validity or termination (Dispute), the parties shall engage the following process:
(a) one party may notify the other party in writing of the dispute with as much detail as possible. The senior business Representatives shall use good faith efforts to resolve the dispute within ten (10) Business Days after receipt of such a notice of dispute.
11.2 However nothing in clause 10.1 shall prevent a party from seeking urgent interlocutory relief from a court without first having to comply with this clause.
12.1 Entire Agreement: This agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes and cancels any previous agreement, understanding or arrangement whether written or oral.
12.2 Severability: If any provision of this agreement is or becomes unenforceable, illegal or invalid for any reason it shall be deemed to be severed from this agreement without affecting the validity of the remainder of this agreement and shall not affect the enforceability, legality, validity or application of any other provision of this agreement.
12.3 Notice: Every notice to be given under, or in connection with, this agreement shall be given in writing by e-mail; personal delivery; or mailing by pre-paid post, and shall be deemed to be given four Business Days after (but exclusive of) the date of mailing to the addresses and contacts specified in New Operator Form of this Agreement or if a written notice of change of address is given then to the new address. Notwithstanding any other provision contained in this clause any notice given after 5pm, or on a day which is not a Business Day, shall be deemed to be given at 9am on the next Business Day.
12.4 Assignment: The Operator may not assign any of its rights or obligations under this agreement, or appoint sub-distributors, without the prior written consent of BUTTONED UP EVENTS.
12.5 Waiver: The rights, powers, exemptions and remedies of BUTTONED UP EVENTS shall remain in full force notwithstanding any neglect, forbearance or delay in their enforcement. BUTTONED UP EVENTS shall not be deemed to have waived any provision of this agreement unless such waiver is in writing signed by BUTTONED UP EVENTS or an authorised officer of BUTTONED UP EVENTS. Any such waiver, unless the contrary is expressly stated, shall apply to, and operate only in, a particular transaction, dealing or matter.
12.6 Confidentiality: During and after the Term the Operator shall not use, exploit or disclose to any person any information supplied by BUTTONED UP EVENTS, or in any other way acquired by the Operator, relating to BUTTONED UP EVENTS except to the extent that use or disclosure to its employees and the Operator may be necessary to perform its obligations under this agreement, or to the extent that such information is in the public domain otherwise than as a result of a breach by the Operator of the provisions of this clause. If the Operator discloses information to its employees and agents, it shall take all necessary steps to ensure that the confidentiality of the information disclosed is safeguarded.
12.7 Intellectual Property: All intellectual property which is owned by, or is proprietary to, a party at the date of this agreement shall remain owned exclusively by that party. Any intellectual property which is created as a result of, or in connection with this agreement, shall be jointly owned. Nothing in this agreement confers on a party any right or interest in, or licence to use, or permit to be used, any of the other party's intellectual property except that both parties shall provide non-exclusive licence to use the other parties intellectual property to the extent required to give effect to this agreement. That licence will expire immediately on termination of this agreement. Intellectual property rights include all industrial and intellectual property rights of any kind including but not limited to copyright, rights in business names, trademarks, designs, patents and company names, logos and any right to registration of any such rights, whether created before or after the Commencement Date.
12.8 Errors or omissions: Clerical errors or omissions, whether in compilation or otherwise in any Booking, invoice price or other such documentation, shall be subject to correction by BUTTONED UP EVENTS.
12.9 Personal Information: The parties will take all reasonable steps to ensure that personal information of Customers is protected against misuse and loss, from unauthorised access, modification or disclosure.
12.10 Variations: No variation or amendment to this agreement will be effective unless in writing and signed by the duly authorised Representatives of the parties.
12.11 Governing law This Agreement is governed by the laws of Victoria and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts operating in Victoria.
12.12 Interpretation: In this agreement, unless the contract otherwise requires:
(a) a reference to a "person" includes a corporation, association, firm, company, partnership, individual or government or local body;
(b) section and clause headings are used as a matter of convenience only and shall not affect the interpretation of this agreement;
(c) the singular includes the plural and vice versa;
(d) one gender includes the other gender;
(e) references to clauses and schedules are references to clauses and schedules in this agreement;
(f) reference to any statute includes any modification or re-enactment of the statute and all legislation, orders and regulations issued under that statute; and
(g) reference to anything of a particular nature following upon a general statement shall not in any way derogate from, or limit the application of the general statement, unless the particular context requires such derogation or limitation.