Term and conditions

This Agreement is entered into between Crownbooths ABN 75 760 093 173 (we, us or our) and you, the person, organisation or entity described in the Schedule (you or your), together the Parties and each a Party.

Background

A. We hire out photobooths to venues, businesses and individuals hosting events so that you and your attendees can use our photobooths to take photos and make memories.
B. You would like to hire our Services for your event.
C. We agree to hire our Services to you, on the terms and conditions of this Agreement.

1. Acceptance and Term

1.1. You accept this Agreement by:

(a) signing and returning a copy of this Agreement to us;
(b) confirming by email that you accept this Agreement;
(c) confirming that you accept this Agreement via the platforms or applications through which we provide this Agreement to you, including our website;
(d) instructing us (whether orally or in writing) to proceed with the provision of the Services; and
(e) making part or full payment of the Price.

1.2. This Agreement will commence on the Commencement Date and will continue until the date we have completed the provision of the Services to you (as reasonably determined by us), unless earlier terminated in accordance with its terms (Term).

2. Services

2.1. In consideration of your payment of the Price, we will provide the Services in accordance with this Agreement, whether ourselves or through our Personnel.

3. Commencement

We will commence the provision of the Services within a reasonable time after the later of:

(a) the Event Time;
(b) receipt of payment of the Price in full; and
(c) the satisfaction of any other conditions precedent contemplated by this Agreement.

4. Cancellations, Rescheduling and Changes

4.1. You must contact us in writing (including by email) immediately if you would like to change your Event Location, reschedule the Event Time or cancel the provision of the Services, in which case:

(a) if you request to cancel the Services within 14 days before the Event Time, then we will cancel the Services, and retain the Initial Booking Fee and refund you the balance of the Price;
(b) if you request to cancel the Services with more than 30 days’ notice of the Event, then we will cancel the Services, and any Price paid to us is non-refundable;
(c) if you request to reschedule your Event Location or reschedule the Event Time with more than 30 days’ notice of the Event Time, we will use our reasonable endeavours to cater to your request and reschedule the Event to a date within 12 months of the original Event Time (but are under no obligation to do so). If the Parties are unable to reach agreement on a new Event Location or Event Time, then you may cancel this Agreement in accordance with this clause 4;
(d) if you request to remove any of our non-intrusive business branding from the intended output, that being digital or hardcopy there is an additional cost of $299.00;
(e) the hire fee includes a 1-hour setup time before the start time commences. If we are required to bump in earlier by you or the by the venues designated time slot or bump in hours, an addition $100.00 per hour idle time will be invoiced to you unless we request an earlier bump in time.

4.2. You agree that retaining your Initial Booking Fee and any charging any other non-refundable fees is a genuine pre-estimate of loss that we will incur as a result of your termination of this Agreement prior to the provision of our Services.

4.3. All variations to the Services, including to the Event or the Equipment required, must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably determined by us. If we consider that any instruction or direction from you constitutes a variation, then we will not be obliged to comply with such instruction or direction unless agreed in accordance with this clause 4.

5. Your Obligations

General

(5.1) You agree to:

(a) comply with this Agreement, our reasonable requests or requirements, and all applicable Laws;
(b) provide all assistance, information, documentation, access, facilities, authorities, consents, licences and permissions reasonably necessary to enable us to comply with our obligations under this Agreement or at Law; and
(c) ensure the Equipment is under cover and protected from inclement weather and not positioned near food or drink.

Condition of Equipment

(5.2) You agree that you are responsible for the costs of any repairs or replacement of the Equipment that are necessary as a result of loss, theft, damage, vandalism or misuse to the Equipment by you or Your Personnel. Where we undertake the repairs or replacement on your behalf, you agree to pay us the costs of the repairs or replacement, as a debt due and immediately payable.

Guests

(5.3) You are responsible for the guests, and any other personnel, who attend or are present at your Event (Your Personnel). You and Your Personnel must not engage in reckless, foolish or negligent behaviour, or any other behaviour, which may, in our reasonable opinion, create a risk of injury or harm to us or our Personnel, put our or our Personnel’s safety at risk, or damage to any of our Equipment.

Event Location

(5.4) You agree to provide us (and our Personnel) with unfettered access to the Event Location (and the facilities at the Event Location), and any other location reasonably necessary for us to provide the Services, free from harm or risk to health or safety:

(a) during the Event Time (and for a reasonable time before and after to set up and pack down); and/or
(b) to enable us to comply with our obligations under this Agreement or at Law,

and you agree to pay us any additional costs that we may suffer or incur if you fail to do so, as a debt due and immediately payable to us.

(5.5) You agree that we may determine the appropriate location at the Event Location where to provide the Services, including but not limited to determining whether the weather or terrain (including rain, storms, hail or gradient) is too dangerous to provide the Services in a particular location and/or may lead to damaged Equipment.

6. Payment

(6.1) You agree to pay us:

(a) the Initial Booking Fee;
(b) the balance of the Price; and
(c) any other amounts payable under this Agreement,

in accordance with the payment terms.

(6.2) If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):

(a) immediately cease providing the Services, and recover, as a debt due and immediately payable from you, our additional costs of doing so; and/or
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms.

(6.3) You will not be entitled to any part of the Services until all amounts under clause 6.1 have been paid in full.

7. Warranties

You represent, warrant and agree that:

(a) there are no legal restrictions preventing you from entering into this Agreement;
(b) all information and documentation that you provide to us in connection with this Agreement is true, correct and complete;
(c) you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in this Agreement;
(d) you and your Personnel will treat our Personnel with respect and ensure they feel safe when providing our Services;
(e) you will not use the Equipment, or allow the Equipment to be used, in breach of any laws;
(f) you and your Personnel will follow our reasonable instructions, including any photobooth rules we provide;
(g) you are not and have not been the subject of an insolvency event;
(h) if applicable, you hold a valid ABN which has been advised to us; and
(i) if applicable, you are registered for GST purposes.

8. Intellectual Property

(8.1) As between the Parties:

(a) we own all Intellectual Property Rights in Our Materials; and
(b) you own all Intellectual Property Rights in Your Materials, and
(c) nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials

(8.2) As between the Parties, ownership of all Intellectual Property Rights in any New Materials (including any Photos) or Improvements will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials and/or Improvements do not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.

(8.3) You grant us a non-exclusive, revocable, worldwide, sublicensable right and licence, to use Your Materials solely for the purposes for which they were developed and for the performance of our obligations under this Agreement, as contemplated by this Agreement.

(8.4) If you or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.

(8.5) In the use of any Intellectual Property Rights in connection with this Agreement, you must not (and you must ensure that your Personnel do not) commit any Intellectual Property Breach.

(8.6) This clause 8 will survive termination or expiry of this Agreement.

9. Australian Consumer Law

(9.1) Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies .

Relating to the provision of the Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).

(9.2) Our Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Services, you are entitled:

(a) to cancel your service contract with us; and
(b) to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure you are entitled to have problems with the Services rectified in a reasonable time and, if this is not done, to cancel this Agreement and obtain a refund for the unused portion of this Agreement.

(9.3) If the ACL applies to you as a consumer, nothing in this Agreement excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this Agreement.

(9.4) Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis.

(9.5) This clause 9 will survive the termination or expiry of this Agreement.

10. Exclusions to liability

(10.1) Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:

(a) Your, your Personnel’s or any of your guests or other personnel who attend or are present at your Event’s acts or omissions;
(b) any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by this Agreement;
(c) any works, services, goods, materials or items which do not form part of the Services (as expressed in this Agreement), or which have not been provided by us;
(d) any Third Party Inputs;
(e) the Services being unavailable (including any Photos), or any delay in us providing the Services to you, for whatever reason; and/or
(f) any event outside of our reasonable control.

(10.2) This clause 10 will survive the termination or expiry of this Agreement.

11. Limitation of liability

(11.1) Despite anything to the contrary, to the maximum extent permitted by law:

(a) neither Party will be liable for Consequential Loss;
(b) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel); and
(c) our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Price paid by you to us in respect of the supply of the relevant Services to which the Liability relates.

(11.2) This clause 11 will survive the termination or expiry of this Agreement.

12. Indemnity

(12.1) Despite anything to the contrary, to the maximum extent permitted by law, you are liable for and agree to indemnify, hold harmless, release and discharge, us in respect of any Liability which we may suffer, incur or are otherwise liable for as a result of, or in connection with any loss or damage to the Equipment that arises:

(a) after we have provided a warning to you in accordance with clause 5.5 that inclement weather (including rain or hail) or adverse conditions may damage the Equipment and that we recommend relocating the Equipment to another part of the Event Location and you reject our offer and instruct us to continue supplying the Services at that location; and/or
(b) as a result of any negligent acts or omissions of you or your guests or other personnel who attend or are present at your Event.

13. Termination

(13.1) This Agreement will terminate immediately upon written notice by:

(a) us, if
- (1) you breach clause 5.2;
- (2) you (or any of your Personnel) breach any provision of this Agreement and that breach has not been remedied within [5] Business Days of being notified by us;
- (3) you fail to provide us with clear or timely instructions or information to enable us to provide the Services;
- (4) for any other reason outside our control which has the effect of compromising our ability to provide the Services; or
- (5) you are unable to pay your debts as they fall due;
(b) you, if we:
- (1) are in breach of a material term of this Agreement, and that breach has not been remedied within [5] Business Days of being notified by you; or
- (2) are unable to pay our debts as they fall due.

(13.2) Upon expiry or termination of this Agreement:

(a) we will immediately cease providing the Services;
(b) you agree that any payments made by you to us are not refundable to you, and you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and unless otherwise stated in this Agreement, all other amounts due and payable under this Agreement;
(c) you agree to provide us (and our Personnel), or continue to provide us, with unfettered access to the Event Location, free from harm or risk to health or safety, to allow us to immediately recover the Equipment, if it is not already in our possession;
(d) pursuant to clauses 13.1(a)(1), (3), (3) or (5), you also agree to pay us our additional costs arising from, or in connection with, such termination; and
(e) you agree not to disparage or otherwise make any unfavourable statements or comments regarding us, our Personnel, our clients, either directly or by implication, verbally or in writing.

13.3 We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to this Agreement constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this Agreement.

13.4 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.

13.5 This clause 13 will survive the termination or expiry of this Agreement.

14. General

Amendment: This Agreement may only be amended by written instrument executed by the Parties.
Assignment: A Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.
Disputes: If a dispute arises, the Parties will agree to meet in good faith to seek to resolve the issue, before proceeding to any dispute resolution process. This won’t prevent a Party from seeking urgent equitable relief. Each Party agrees that the laws of New South Wales will apply to this Agreement and that they submit to the courts of that jurisdiction in the event of a dispute.
Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
Entire agreement: This Agreement contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
Further assurance: You agree to promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and your obligations under it.
Force Majeure: We will not be liable for any delay or failure to perform our obligations under this Agreement if such delay is due to any circumstance beyond our reasonable control.
Governing law: This Agreement is governed by the laws of Queensland. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
GST: If and when applicable, GST payable on the Price will be set out in our invoice. You agree to pay the GST amount at the same time as you pay the Price.
Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email, (or, where the time of transmission is not on a Business Day, 9am on the next Business Day).
Online execution: This Agreement may be executed by means of such third party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.
Publicity: You agree that we may advertise or publicise the broad nature of our provision of the Services to you, including by using any photographs taken at your Event and/or of you using the Services and placing them on our website or in our promotional material, with your written consent.
Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.

15. Definitions

In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:

ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

Agreement means these terms and conditions any documents attached to, or referred to in, each of them.

Agreement Terms

Business Day means a day on which banks are open for general banking business in Queensland, excluding Saturdays, Sundays, and public holidays.

Commencement Date means the date this Agreement is accepted in accordance with its terms.

Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

GST means has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party (or any of their respective Personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the Term.

Intellectual Property means any domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third-party rights including any Intellectual Property Rights of third parties).

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with this Agreement or the provision of the Services.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

Moral Rights has the meaning given in the Copyright Act 1968 (Cth).

New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with this Agreement or the provision of the Services, whether before or after the date of this Agreement.

Photos means the photos taken by guests or individuals at your Event, using our Equipment.

Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation, and services that we may provide to you under this Agreement, and which may contain material which is owned by or licensed to us, and is protected by Australian and international laws.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.

Price means the price set out in the Schedule and includes all Expenses and the Initial Booking Fee, if any.

Schedule means the schedule to this Agreement.

Services means the services that we agree to perform under this Agreement as further particularised in the Schedule.

Statutory Rights has the meaning given in clause 9.1.

Term has the meaning set out in clause 1.2.

Third Party Inputs means third parties or any goods and services provided by third parties, including guests, customers, end users, hosts, venues, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.

Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of you or your Personnel before the Commencement Date and/or developed by or on behalf of you or your Personnel independently of this Agreement.