Terms & Conditions
*Please ensure that you have read & understood all conditions prior to signing
Function Release and Waiver of Liability – The Creek Whitsundays
BACKGROUND
A. The Creek Whitsundays owns the Property.
B. The Hirer wishes to hire the Function Area from The Creek Whitsundays to operate the Function.
C. This Agreement sets out the terms and conditions on which the Hirer shall hire the Function Area.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Unless the context requires otherwise, in this Deed the following terms have the following meaning:
Authority means any government or government department whether local, State, or Federal, and includes a person charged with the administration of a Law.
Barn means the barn located in the Function Area.
Claim means, in relation to a person, any claim, cause of action, proceeding, suit or demand made against the person concerned however it arises and whether it is present or future, fixed or unascertained, actual, or contingent.
ETA means the Electronic Transactions (Queensland) Act 2001.
Fee means the fee for the hire of the Function Area for the Function Period as agreed between the parties.
Function means the function to be held by the Hirer at The Creek Whitsundays during the Function Period.
Function Area means the area within which the Function is to be held, being part of the Property, as directed by The Creek Whitsundays.
Function Period means the period of time during which the Function shall take place, as agreed by the parties.
Law includes the common law, any legislation passed by any Authority, statutory instruments, and the requirements of any Authority.
Loss includes any loss, damage, liability, compensation, fine, penalty, charge, payment, cost or expense (including any legal cost and expense) however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
Property means 98 Valmadre Road, Kelsey Creek, QLD 4800.
Rules means the Rules set out in Schedule 1.
The Creek Whitsundays Biosecurity Farm Waiver means the waiver set out in Schedule 2.
1.2 INTERPRETATION
In the interpretation of this Agreement:
(a) references to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
(b) words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;
(c) grammatical forms of defined words or phrases have corresponding meanings;
(d) parties must perform their obligations on the dates and times fixed by reference to Australian Eastern Standard Time;
(e) reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
(f) if the date on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it has to be done, then it must be done on the next business day;
(g) references to a party bind their executors, administrators and permitted assigns and transferees; and
(h) obligations under this Agreement affecting more than one party bind them jointly and each of them severally.
2. VENUE HIRE
(a) The Creek Whitsundays agrees to hire the Function Area to the Hirer during the Function Period in consideration for the Hirer agreeing to pay the Fee.
(b) This Agreement is not intended to grant any exclusive rights in relation to the Function Area, and The Creek Whitsundays and its staff and contractors are entitled to full and unrestricted access to the Function Area throughout the Function Period.
(c) The Creek Whitsundays is a licensed venue and guests are prohibited from bringing any alcohol onto the Property.
3. HIRE FEE
(a) The Hirer must pay the Hire Fee to The Creek Whitsundays as directed by The Creek Whitsundays.
(b) The Hirer’s booking will be confirmed only upon receipt by The Creek Whitsunday’s of any deposit required by The Creek Whitsundays.
4. HIRER’S OBLIGATIONS
(a) The Hirer must not, and must take active steps to ensure that none of its staff, contractors, guests, or invitees do any of the following:
(i) damage or attempt to damage any part of the Function Area or its installations, fittings or fixtures;
(ii) damage, touch, lean against, sit on, move, cover, obscure or endanger any artworks, heritage items or displays in the Barn
(iii) attach any sign, decoration or other item to any part of the Function Area without The Creek Whitsunday’s consent;
(iv) interfere with or alter any of the electrical, security, lighting or sound systems in the Function Area;
(v) invite or permit into the Function Area more than the number of guests previously agreed between the parties, or as directed by The Creek Whistundays;
(vi) enter areas of the Property, except for the areas designated by the The Creek Whitsundays as the route for entry to and exit from the Function Area or for use of toilet facilities;
(vii) cause any nuisance to neighbours or other users of the Property;
(A) create excessive noise or vibration in any part of the Property;
(viii) bring into the Property any flammable materials, or light or maintain a naked flame except in a manner approved in writing by The Creek Whitsundays;
(ix) take or consume any food or drink outside the Function Area;
(x) smoke anywhere inside the Barn;
(xi) use the Function Area for any purpose except the purpose agreed between the parties, or as otherwise directed by The Creek Whitsundays;
(xii) do, say or display anything defamatory or offensive.
(xiii) climb on any timber structures, fences or gates.
(xiv bring onto the Property any illegal drugs and/or prohibited substances.
(xv) allow any criminal activity to be conducted on the Property
(b) The Hirer must:
(i) observe and follow the Rules
(ii) observe and follow any direction of The Creek Whitsundays
(iii) engage and have at the Function sufficient staff to manage guests and ensure that the Function Area fittings and fixtures are properly protected;
(iv) vacate the Function Area by the end of the Function Period;
(v) promptly remove any goods or materials brought into the Function Area by or on behalf of the Hirer; and
(vi) leave the Function Area in a thoroughly clean and tidy condition.
(vii) comply with all laws, regulations and by-laws and government or regulatory orders applying to the Function and the Function Area;
(viii) comply with any Occupation Health and Safety laws applying to its workers.
(b) All sound, electrical and lighting requirements, signs, banners, and decorations connected with the Function must be approved by The Creek Whitsunday’s before the Function and may be subject of a further charge.
(c) The Hirer must comply with all directions of The Creek Whitsundays management and staff whilst in the Function Area.
(d) All deliveries for the Function must be arranged with and approved by The Creek Whitsunday’s prior to delivery.
(e) The Creek Whitsundays reserves the right to refuse entry to the Barn to any of the Hirer’s guests.
(f) The Hirer may only permit its contractors (such as operators of electrical, lighting or sound systems and any providers of music or other entertainment) to provide services at the Function if they have first been approved in writing by The Creek Whitsunday’s.
5. RELEASE AND INDEMNITY
(a) The Hirer acknowledges and agrees that it and its employees, staff, contractors, agents, guests, and/or invitees use of the Function Area it at its own risk.
(b) The Hirer hereby indemnifies The Creek Whitsundays and The Creek Whitsunday’s employees, volunteers, contractors and agents against and releases them to the fullest extent permitted by law from any Loss or Claim due to or in connection with:
(i) any breach of this Agreement by the Hirer;
(ii) the hire and use of the Function Area or access to any part of the Property by the Hirer or its employees, staff, contractors, agents, guests and/or invitees; and
(iii) any actions of:
(A) the Hirer’s employees, staff, contractors, agents, guests, and/or invitees; and
(B) The Creek Whitsundays’ employees, volunteers, contractors and agents.
6. GENERAL
6.1. JURISDICTION
This Agreement is governed by the laws of Queensland and the parties submit to the non-exclusive jurisdiction of the courts of Queensland.
6.2. CONFIDENTIALITY
The parties must keep the terms of this Agreement confidential, save for any necessary disclosure to their respective legal and financial advisers.
6.3. ENTIRE AGREEMENT
This Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement, and supersedes any prior understanding, arrangement, representation, or agreement between the parties as to the subject matter contained in this Agreement.
6.4. AMENDMENT
An amendment or variation to this Agreement is not effective unless it is in writing and signed by all parties.
6.5. WAIVER
Any waiver by any party to a breach of this Agreement shall not be deemed to be a waiver of a subsequent breach of the same or of a different kind.
6.6. EVENTS BEYOND CONTROL
Neither party shall be liable to the other for any loss caused by any failure to observe the terms and conditions of this Agreement where that failure is occasioned by causes beyond its reasonable control including without limit fire, flood, riot, strike, war, restrictions and prohibitions or any other actions by any government or semi government authority.
6.7. SEVERANCE
If any part of this Agreement is to any extent invalid, illegal or unenforceable in a court of law, the remaining terms of this Agreement will not be affected and will remain in full force and effect.
6.8. NOTICES
A notice or other communication to a party must be in writing and delivered to that party or that party’s lawyer in one of the following ways:
(a) delivered personally;
(b) posted to their address when it will be treated as having been received on the 2nd business day after posting;
(c) faxed to their facsimile number when it will be treated as received when it is transmitted; or
(d) sent by email to their email address when it will be treated as received when it enters the recipient’s information system.
6.9. COUNTERPARTS
This Agreement may be:
(a) executed in any number of counterparts each of which will be an original but such counterparts together will constitute one and the same instrument and the date of this Agreement will be the date on which it is executed by the last party; and
(b) entered into by and becomes binding on the parties named in the Agreement upon one party signing the Agreement that has been signed by the other party (or photocopy of facsimile or electronic transmission of the same) and transmitting a facsimile or electronic transmission thereof to the other party or to the other parties agent or Solicitor.
6.10. COSTS
Each party will pay their own costs in relation to this Agreement.
6.11. CONTRA PROFERENTEM
The contra proferentem rule and other rules of construction will not apply to disadvantage a Party whether that Party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.
6.12. SURVIVAL
Any indemnity or obligation of confidence under this Agreement is independent and survives termination of this Agreement. Any other term by its nature intended to survive termination of this Agreement survives termination of this Agreement.
6.13. ELECTRONIC COMMUNICATION
The parties acknowledge that:
(a) their representatives may communicate utilising electronic communication;
(b) Chapter 2 Part 2 of the ETA applies; and
(c) the method of determining the time and place of dispatch and receipt will be determined under Chapter 2, Part 3 of the ETA.
FUNCTION RELEASE AND WAIVER OF LIABILITY – THE CREEK WHITUNDAYS
“You can solve all the world’s problems in a garden.”
Geoff Lawton