- The parties to this Agreement are Real Deal Entertainment Pty Ltd (RDE) and the client listed in the Address section (Client), both named in the above quote (Quote).
- The Client wishes to engage RDE to provide the services listed in the Quote (Services) and RDE has agreed to provide those Services to the Client in accordance with the terms of this Agreement. This Agreement exclusively governs the provision of the Services.
2. QUOTE AND BOOKING EMAIL
- The Quote outlines the key details of the Services to be provided (for example, name of event (Event), type of performance, performance date, performance time, location, supplied equipment and fees). Once the Quote is approved by the Client, the parties agree to finalise the finer details of the Services in an email (Booking Email) (for example, venue address and setting, contact person, parking and loading instructions, dressing rooms, creative brief, number of patrons). The Quote and the Booking Email are binding on the parties an incorporated into the Terms of Service (together the Agreement). The Quote and Booking Email prevails over the Terms of Service in the event of any inconsistency.
- Once the Quote is approved by the Client, the Agreement is binding on the parties (Commencement Date).
- The Agreement cannot be amended unless both parties agree in writing. RDE is not required to agree to any request by the Client to amend the Agreement.
The term of this Agreement commences on the Commencement Date and continues until the parties have completed their obligations under this Agreement (Term).
4. SERVICES AND DELIVERABLES
- RDE will perform the Services and supply the Client with the Deliverables set out in the Quote and Booking Email.
- RDE may engage third party employees or sub-contractors (Personnel) to perform all or any part of its obligations under this Agreement in its sole discretion and without the Client’s consent.
5. FEES AND EXPENSES
- In consideration for RDE providing the Services, the Client must pay the Fees listed in the Quote (Total Costs), including paying any required deposit (Deposit). Unless stated, the Total Costs are inclusive of GST which may be payable.
- RDE will issue a tax invoice for all payments due to it under this Agreement (each an Invoice) and payment due dates and methods shall be stated on the Invoice. The Client agrees that ‘time is of the essence’ when making payments under this Agreement.
- If the Client fails to pay the Total Costs in accordance with the terms of this Agreement, RDE may cancel the Services with immediate effect by the provision of written notice to the Client.
6. CLIENT’S OBLIGATIONS
- The Client agrees that it will observe and comply with all of its obligations it has under this Agreement, including in the Booking Email.
- Further, the Client agrees that it will in a timely and co-operative manner, provide all necessary, complete and accurate information, contact details, instructions, location directions, delivery directions, documentation, performance schedules, feedback, approvals, facilities and assistance that RDErequires from time to time to provide the Services.
- The Client agrees that it will use best efforts to ensure that the Event is a safe working environment for RDE and any Personnel.
- The Client agrees and warrants to comply with all rules, regulations and other laws relating to the Event during the COVID-19 pandemic (as amended from time to time) including strict adherence to state and federal government health and safety advice and the COVID-19 measures contained in this Agreement.
7. INTELLECTUAL PROPERTY
- RDE retains exclusive worldwide ownership of all intellectual property rights in any videos or photographs (Content) it creates in the course of
providing the Services.
- The Client can reproduce or use the Content for the Approved Uses only. Any reproduction or use other than for the Approved Uses must be approved by RDE, and in some circumstances may be subject to payment of an additional fee.
- The Client agrees that RDE is, in its full discretion and in full compliance with Child Safe Standards, permitted to use the Content for self-promotional purposes including as part of RDE’s portfolio, social media platforms or website.
8. STANDARD OF SERVICE AND EXCLUSIONS
- RDE warrants that it will provide the Services with due care and skill and in accordance with any applicable Consumer Guarantees, if the Client acquires the Services as a Consumer.
- Subject to clause 8(a) and to extent permitted by law, RDE excludes any warranty or condition in relation to those Services which could be implied into this Agreement.
9. LIABILITY AND INDEMNITY
- Nothing in this Agreement is intended to limit or exclude any Consumer Guarantees or other rights the Client may have at law.
- To the extent permitted by law, RDE’s liability to the Client for any Loss or Claim suffered by the Client in respect of the Services, including in respect of a failure to comply with any applicable Consumer Guarantees, is limited to, RDE’s election, either supplying the Services again; or paying the cost of having the Services supplied again.
- RDE and the Client (the Indemnifying Party) shall each indemnify the other (the Indemnified Party) from and against all Loss and Claims which may be made or brought against or suffered or incurred by the Indemnified Party as a result of a material breach of this Agreement. To the extent permitted by law, RDE’s maximum aggregate liability under the Agreement (including under this clause 9(c)) is limited to an amount equal to the Total Costs.
- Notwithstanding anything in this Agreement, neither party is liable to the other party for any kind of Consequential Loss arising out of or in connection with this Agreement.
10. FORCE MAJEURE
- The Services may be cancelled by a party prior to or during the Event, if in that party’s reasonable opinion, a Force Majeure Event will prohibit or materially change RDE’s ability to perform the Services at the Event in accordance with the terms of this Agreement. If the Services are cancelled under this clause, the parties shall refer to RDE’s COVID-19 Policy which is provided to the Client around the time of booking with regards to refunds and further administration charges that may apply.
- To the full extent permitted by law and subject always to clause 9(a), RDE is not liable to the Client for any Loss (including Consequential Loss) it may suffer in relation to the cancellation of the Services under clause 10(a) or where the Services have been impacted by a Force Majeure Event.
- Without limiting the Client’s right to terminate under clause 10(a), the Client may not cancel the Services for ‘change of mind’, unless RDE provides written consent whereby an administration fee may be charged.
- RDE can cancel the Services under clause 5(c) above.
- RDE may cancel the Services immediately by providing written notice to the Client if the client breaches clause 6(d). Subject to clause 9(a), the Client will not be entitled to a refund if RDE cancels the Agreement due to the Client’s breach of clause 6(d). Any unpaid amounts will remain payable to RDE.
- The Services may be cancelled by either party (Terminating Party) if the other party commits a material breach of this Agreement and the breach is not capable of remedy or if the breach is capable of remedy, the other party does not remedy that breach within 7 days after receipt of notice of the breach or any further time allowed by the Terminating Party.
- Subject to clause 9(a) and except otherwise required by law or as expressly stated in this Agreement, all monies paid by the Client under this Agreement are strictly non-refundable. Each party also retains its rights against the other party in respect of any past breach, in addition to any other rights, powers or remedies provided by law.
12. COVID 19 MEASURES
RDE will take every measure necessary to adhere to instructions and advice from State and Federal governments as well as additional requirements as directed by you/our clients for the health and safety our all parties during or in the wake of the COVID-19 pandemic. These may include the following:
- Can socially distance (if required);
- Limited or no hugs or sitting on knee; and
- Can wear:
(i) A white mask under synthetic beard; or
(ii) Christmas themed mask over top of beard.Elves
- Can socially distance (if required);
- Can wear Christmas themed mask; and
- Can offer hand sanitiser to guests and sanitise surfaces.,Face-painters
- Require children to sanitise their hands and wash or wipe their face before being painted;
- Can wear Christmas themed masks and thin rubber gloves;
- Paint brushes can be sanitised in alcohol solution and an alcohol wipe for surfaces must be used after painting each face; and
- Can avoid mouth and nose areas of face when painting.Photographers
- Will have Christmas-themed masks on hand; and
- Can socially distance.
13. COVIDSAFE PLAN
It is your responsibility, as the event organiser, to develop and implement a COVIDSafe Plan and provide it to us to follow, as well as enforce it during the event.
14. COVID 19 RELATED CANCELLATION OR POSTPONEMENT
- If your event needs to be cancelled due to legal/lock-down restrictions or for health and safety concerns (at your discretion), you will have the option to replace the booking with one of our Virtual Santa experiences (The Real Virtual Santa Option) or to cancel or postpone the event (Covid19 Cancellation / Postponement Options) in accordance with the terms set out in the Definitions section and the Schedule to this Agreement, respectively (found below).
- Credit can be used for The Real Virtual Santa Option in 2021 or for your booking in 2022 (or portions thereof). You will have the option of keeping part of your booking (eg. Props/ Virtual Santa) and rolling over the balance of your invoice if you choose.
- Capitalised words may be defined in the Schedule, the Definitions section or the body of this Agreement.
- The rights and obligations under this Agreement, which by their nature would reasonably continue beyond the Term, will survive. Without limiting the foregoing, clauses 7 and 9 survive termination.
- A notice provided by a party in connection with this Agreement must be in writing (email to suffice).
- This Agreement constitutes the entire agreement between the parties and cannot be altered except as permitted under this Agreement or by written agreement between the parties.
- This Agreement does not create any employment, partnership, agency or joint venture relationship between the parties.
- This Agreement will be governed by and construed in accordance with the laws of Victoria, Australia. The parties submit to the exclusive jurisdiction of the courts of Victoria, Australia.
16. DEFINITIONS AND INTERPRETATION
In this Agreement the following definitions apply:
Approved Uses means:
- private use;
- use to promote or commemorate the Event; and
- use to promote a future event where the Client has engaged RDE to provide services.
Australian Consumer Law means the Competition and Consumer Act 2010 (Cth) Schedule 2.
Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature, whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.
Consequential Loss means special, incidental, indirect or consequential damages, loss of revenue, anticipated savings, profits, goodwill, reputation, interest or business.
Consumer has the same definition as in the Australian Consumer Law.
Consumer Guarantees means the consumer guarantees specified in the Australian Consumer Law.
Covid 19 Cancellation / Postponement Options means the cancellation and postponement options listed in the Schedule.
GST has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Force Majeure Event means an act of god, strike, war, bad weather, natural disaster, pandemic, health emergencies, flight or other travel cancellations, government shutdowns, unavailability or delay in availability of equipment, inability or delay in obtaining consents or licences, faulty material, equipment failure, damaged and exposed film, loss or damage to Raw Files and any other cause not reasonably within the control of the party affected but excludes for weddings, where the Event is cancelled due to a bride or groom ‘pulling out’.
Loss means loss, damage, liability, charge, expense, outgoing, payment or cost of any nature or kind, including all legal and other professional costs.
The Real Virtual Santa Options means an option for services that may include the following services:
- Pre-recorded, customised videos created by us and sent to clients. This could be one video addressed to the group/s or multiple short videos personalised to individuals;
- Live online video chats with Santa. This could be with groups or individuals (single screen); or
- Virtual Santa Parties (online video conference) for up to 100 guests/locations at once. This could be a group address with activities and stories and/or could break off into individual chats.
For more information see our Virtual Santa page.
In the construction of this Agreement, unless the contrary intention appears a reference to:
- a word importing the singular includes the plural and vice versa;
- a word importing a gender include other genders;
- $, is a reference to Australian dollars unless otherwise expressly stated;
- a party to this Agreement includes its agents, personal representatives, successors and permitted assigns;
- a person, includes a natural person, partnership, joint venture, corporation, trust, governmental agency, association or other body corporate; and the words ‘such as’, ‘including’, ‘particularly’ and similar expressions are not used as, nor are they intended to be interpreted as, words of limitation.
SCHEDULE – COVID 19 CANCELLATION / POSTPONEMENT OPTIONS
|Cancellation prior to booking date||2021 Refund||Credit for 2022|
|Within 48 hours||0%||OR||75%|
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