Moda Events Portside Terms & Conditions of Trade

1. Definitions

1.1 “Moda” means TSLB Pty Ltd T/A Moda Events, its successors and assigns or any person acting on behalf of and with the authority of TSLB Pty Ltd T/A Moda Events.

1.2 “Customer” means the person/s requesting Moda to provide the Services as specified in any invoice, document or order, and if there is more than one person requesting the Services is a reference to each person jointly and severally.

1.3 “Services” means all Services supplied by Moda to the Customer at the Customer’s request from time to time (and includes any goods or materials supplied, consumed, created or deposited incidentally by Moda in the course of it conducting, or supplying to the Customer, any Services).

1.4 “Price” means the price payable for the Services as agreed between Moda and the Customer in accordance with clause 9 of this contract.

2. Acceptance

2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for, or accepts Services provided by Moda.

2.2 These terms and conditions may only be amended with Moda’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Moda

3. Change in Control

3.1 The Customer shall give Moda not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by Moda as a result of the Customer’s failure to comply with this clause.

4. Bookings

4.1 To confirm the booking, the Customer shall be required to provide Moda with a completed Event Agreement and payment of the deposit within a period as indicated by the Event Sales Coordinator or Venue Manager. In the event the Event Agreement and deposit is not received by this period, the booking will be cancelled and the space released.

4.2  Bookings are calculated by the stipulated starting and closing times. Room hire charges shall apply where the event starts before the contracted starting time, or carries on beyond the contracted closing time. In the event these times are not stipulated, the following closing times shall be applicable:

(a) lunches – 4pm

(b) evening functions –midnight; all guests must depart by 12:30am.

5. Postponement

5.1 Subject to clause 19.2 and Moda’s written approval, postponement of the event and the re-allocation of the deposit (and any other monies paid by the Customer) may be accepted one time only where the event is rescheduled with a new confirmed date. If the event needs to be postponed more than once, a new deposit invoice will be issued.

6. Minimum Spend

6.1 The Customer acknowledges that Moda may (at their sole discretion) impose a Minimum Spend in food and beverage, which shall be determined by your event coordinator upon booking and varies between peak and off-peak periods. The amount of the Minimum Spend in food and beverage shall be disclosed to the Customer by Moda as part of the booking process. In the event that the Customer’s estimated guest numbers are lower than expected, Moda will assist the Customer in upgrading menu choices in order to reach the Minimum Spend amount.

7. Guest Numbers

7.1 The Customer is required to notify Moda of the guaranteed minimum Guest Numbers attending the event within ten (10) days prior thereto. Decreases within ten (10) days of the event will be accommodated for catering purposes, but the Price will not be adjusted pro rata after this time. Increases must be submitted by 10:00am within three (3) working days prior to the event; any increases within this period will incur an additional fee of two hundred dollars ($200.00).

8. Menu and Beverages

8.1 The Customer acknowledges that:

(a) menu tastings are not available, and menus are subject to change due to seasonal produce available;

(b) beverages are served, and charged to the Customer, on either a cash, consumption or package basis;

(c) Dietary requirements need to be advised to Moda prior to your event to ensure our ability to cater suitably and in a timely manner. Moda will use all reasonable endeavours to accommodate such requirements and, where this is not possible, inform the Customer of the same;

(d) some foods may cause an allergic reaction in certain people due to intolerance of some ingredients. If any guests have known allergies, or is intolerant of any food, it is the Customer’s responsibility to report this to Moda prior to the event, and certainly before the consumption of any food provided by Moda. Moda shall not be liable where the Customer has failed to notify Moda of an allergy or food intolerance and a guest becomes ill as a result of eating foods which they are allergic or intolerant to. Furthermore, and irrespective of any notification provided to Moda of any food allergies or intolerances, it remains the Customer’s, and/or the guest’s, decision as to whether or not to consume any particular food items, and do so at their own risk;

(e) by law, no food is permitted to be brought into the venue for consumption, or removed from the venue (e.g. “doggy bags”, etc.). However, Moda does permit the Customer to supply celebration cakes sourced from a professional supplier.

8.2 In accordance with the Liquor Act 1992 and responsible services of alcohol, it is against the law to supply liquor to a person who is either a minor, unduly intoxicated or disorderly. The Customer acknowledges that Moda (in accordance with their liquor license) is unable to serve alcohol after midnight, and reserves the right to refuse alcohol service and/or remove any guests that do not behave appropriately or ignore notice to cease consumption of alcohol as per the Liquor Act 1992.

9. Price and Payment

9.1 At Moda’s sole discretion the Price shall be either:

(a) as indicated on any invoice provided by Moda to the Customer; or

(b) Moda’s quoted price (subject to clause 9.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

9.2 The Customer acknowledges that:

(a) surcharges may be applied at the time of booking for public holidays and/or any other recognised celebratory days (e.g. Public holidays, Christmas Eve, New Years Eve, Melbourne Cup)

(b) Moda reserves the right to change the Price if:

(i) additional requirements over and above Moda’s standard allocation for pre-delivered resources, staffing and room access is requested/required, including where security guards are required; It is at Moda’s sole discretion whether security guards are necessary at your Event. Guards are allocated at a 1:100 guest ratio chargeable to the Customer.

(i) additional/excessive cleaning is required, which shall be charged at the relevant staff hourly rate and/or discard rates.

9.3 At Moda’s sole discretion, a deposit may be required.

9.4 Time for payment for the Services being of the essence, the Price will be payable by the Customer on the date/s determined by Moda, which may be:

(a) by way of instalments in accordance with Moda’s payment schedule:

(i) a progress payment of fifty percent (50%) of the Price shall be required thirty (30) days prior to the event; and

(ii) the final invoice issued upon receipt of final numbers which are due ten (10) days before your event. The balance shall be payable prior to the event.

(b) the date specified on any invoice or other form as being the date for payment; or

(c) failing any notice to the contrary, the date which is ten (10) days following the date of any invoice given to the Customer by Moda.

9.5 Payment may be made by cash, bank cheque, electronic/on-line banking, Mastercard and Visa do not incur a surcharge whilst American Express and Diners cards incur a 3% surcharge. This surcharge is not payable on deposit amounts.

9.6 Unless otherwise stated the Price DOES include GST. In addition to the Price the Customer must pay to Moda an amount equal to any GST Moda must pay for any provision of Services by Moda under this or any other agreement. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

9.7 The Customer acknowledges and agrees that the Customer’s obligations to Moda for the provision of the Services shall not cease until:

(i) the Customer has paid Moda all amounts owing for the particular Services three (3) days prior to the event with the only exclusion being that a bank remittance is provided prior to the event as proof of owing payment and;

(ii) the Customer has met all other obligations due by the Customer to Moda in respect of all contracts between Moda and the Customer.

9.8 Receipt by Moda of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Moda’s ownership or rights in respect of the Services shall continue.

10. Delivery, access and parking

10.1 Any time specified by Moda for delivery of the Services is an estimate only and Moda will not be liable for any loss or damage incurred by the Customer as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that Moda is unable to provide the Services as agreed solely due to any action or inaction of the Customer then Moda shall be entitled to charge a reasonable fee for re-providing the Services at a later time and date.

10.2 Moda can provide any additional equipment and/or professional services that may be required for the event when given notice before the event (including, but not limited to, microphone, data projector, on-site technician, special lighting, etc.). Where the Customer is making their own arrangements, they must ensure that the hire company and/or service provider contact Moda directly to ensure the level of service provided matches the rank of distinction offered by the venue, and to arrange access to the venue for bump in and bump-out.

10.3 The Customer acknowledges that:

(a) any contractors appointed by the Customer, or Moda on behalf of the Customer, must liaise with Moda in all matters of deliveries, bump in or bump out procedures and instructions. All outside contractors shall be required to maintain their own public liability insurance within a minimum cover of ten million dollars ($10,000,00.00) and must be able to provide proof of this upon request. Moda accepts no liability for the damage of the Customer’s goods, assets or equipment as a result of contractor negligence. Any damage incurred to the venue at the fault of contractors shall be the responsibility of the party who contracted the contractor (i.e. the person/company liable to pay the contractor’s invoice);

(b) three hundred and fifty (350) undercover car spaces are available at the venue; please note that these spaces are available to all patrons of Portside Wharf and not exclusive to event guests; Additional street parking is available together with overflow parking at the Cruise Terminal.

(c) Moda Events Portside is not responsible for parking breaches or tickets issued within the precinct or its surrounds

(d) standard access to the venue for suppliers shall be three (3) hours prior to the start of the event. Additional charges will be applicable for access prior to 6:00am, after midnight and day-holds. Please speak to your event coordinator about pricing for this in advance

(e) unless by prior arrangement with Moda, all supplier deliveries must be made to level 2 and not the ground level;

(f) Moda does not have the machinery (e.g. forklift, etc.) required to accept pallet deliveries;

(g) due to limited storage facilities, Moda is unable to store items overnight unless by prior arrangement and it is required that all items be removed at the close of the event. Where temporary storage has been arranged with Moda, all care will be extended, however Moda shall accept no responsibility for the theft or damage of these items and it shall be the responsibility of the Customer to insure the items adequately;

11. Venue Restrictions

11.1 furniture brought into the venue must have felt stoppers underneath or smooth surface to ensure they do not damage the polished timber floors. Moda reserves the right to charge the Customer for any damage to the venue as a result of the Customer failing to adhere to this clause;

11.2 as the venue is close to residential apartments and other businesses, noise restrictions are applicable (as specified in Moda’s liquor license). Entertainment must be approved by Moda in advance and a band waiver may be required to ensure noise restrictions are adhered to. Moda reserves the right to refuse or cease any entertainment if it fails to comply with these restrictions;

11.3 due to the venue’s position in front of the Brisbane Cruise Terminal, cruise ships dock in front of the venue’s veranda. Moda can provide the Customer with dates when cruise ships will be at wharf, but will assume no responsibility for cruise ships docked on unscheduled days or times

11.4 all guests are required to use the private balcony respectfully. In the event guests are found to be throwing anything over the balcony (including, but not limited to cigarette butts, etc.), the guest will be requested to leave the venue and charged for any resultant damages. Police may be called if necessary;

11.5 the use of helium balloons, bubbles, confetti and rose petals for throwing are not permitted in and around the venue (and complex) without prior arrangement, (cleaning fees may be applicable)

11.6 DRY FIREWORKS ON THE BALCONY: Due to limitations put in place by Portside Wharf Centre Management, Moda cannot allow suppliers other than Fireworx: Masters Of Artistry www.fireworx.com.au to conduct fireworks at the venue.

11.7 DRY FIREWORKS NOTICE PERIOD: Due to permission from Centre Management required in advance for dry fireworks, Moda requires 10 days notice in order to seek appropriate permits

12. Limitation of Liability

12.1 The Customer will indemnify, and keep the indemnified, Moda, its staff, contractors or agents, against all damages, action, suits, claims, costs and demands, which may be made or recovered against Moda, its staff, contractors or agents by the Customer (and/or their staff, guests, contractors or agents) or any third party, whatsoever in respect of any loss, injury (including death) or damage sustained whilst in or upon the venue, except to the extent that such loss, injury or damage is caused by the negligence or misconduct of Moda, its staff, contractors or agents. Moda provides public liability insurance up to twenty million dollars ($20,000,000.00).

13. Loss of or Damage to Property

13.1 Whilst Moda will ensure that every care is taken when looking after items of the Customer and/or guests, no responsibility will taken for any loss or damage to those items either before or after the event. Unless prior arrangements have been made, Moda reserves the right to discard any items left at the venue after twenty-four (24) hours of the close of the event.

14. Risk

14.1 Irrespective of whether Moda retains ownership of any goods supplied, all risk for such goods shall pass to the Customer as soon as the event commences and shall remain with the Customer until such time as the event is concluded.

14.2 Moda reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the goods as a result of the Customer’s (or any of their guest’s) negligence.

15. Personal Property Securities Act 2009 (“PPSA”)

15.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

15.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all collateral (account), being a monetary obligation of the Customer for the Services that have previously been provided, and that will be provided in the future, by Moda for the Customer.

15.3 The Customer undertakes to:

(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Moda may reasonably require to;

(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

(ii) register any other document required to be registered by the PPSA; or

(iii) correct a defect in a statement referred to in clause 15.3(a)(i) or 15.23(a)(ii);

(b) indemnify, and upon demand reimburse, Moda for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of Moda;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Services in favour of a third party without the prior written consent of Moda.

(i) Moda and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

(ii) The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

(iii) The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

(iv) Unless otherwise agreed to in writing by Moda, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.

(v) The Customer must unconditionally ratify any actions taken by Moda under clauses 15.2 to 15.5.

(vi) Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

16. Security and Charge

16.1 In consideration of Moda agreeing to provide Services, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

16.2 The Customer indemnifies Moda from and against all Moda’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Moda’s rights under this clause.

16.3 The Customer irrevocably appoints Moda and each director of Moda as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Customer’s behalf.

17. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)

17.1 The Customer must inspect Moda’s Services on completion of the Services and must within seven (7) days notify Moda in writing of any evident defect in the Services provided, or of any other failure by Moda to comply with the description of, or quote for, the Services which Moda was to provide. The Customer must notify any other alleged defect in Moda’s Services as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow Moda to review the Services that were provided.

17.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied gua rantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).

17.3 Moda acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

17.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Moda makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. Moda’s liability in respect of these warranties is limited to the fullest extent permitted by law.

17.5 If the Customer is a consumer within the meaning of the CCA, Moda’s liability is limited to the extent permitted by section 64A of Schedule 2.

17.6 If Moda is required to rectify, re-provide, or pay the cost of re-providing the Services under this clause or the CCA, but is unable to do so, then Moda may refund any money the Customer has paid for the Services but only to the extent that such refund shall take into account the value of Services which have been provided to the Customer which were not defective.

17.7 If the Customer is not a consumer within the meaning of the CCA, Moda’s liability for any defective Services is:

(a) limited to the value of any express warranty or warranty card provided to the Customer by Moda at Moda’s sole discretion;

(b) otherwise negated absolutely.

18. Default and Consequences of Default

18.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Moda’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

18.2 If the Customer owes Moda any money the Customer shall indemnify Moda from and against all costs and disbursements incurred by Moda in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Moda’s collection agency costs, and bank dishonour fees).

18.3 Without prejudice to any other remedies Moda may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Moda may suspend or terminate the provision of Services to the Customer. Moda will not be liable to the Customer for any loss or damage the Customer suffers because Moda has exercised its rights under this clause.

18.4 Without prejudice to Moda’s other remedies at law Moda shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Moda shall, whether or not due for payment, become immediately payable if:

(i) any money payable to Moda becomes overdue, or in Moda’s opinion the Customer will be unable to make a payment when it falls due;

(ii) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(iii) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

19. Cancellation

19.1 Moda may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Customer. On giving such notice Moda shall repay to the Customer any money paid by the Customer for the Services. Moda shall not be liable for any loss or damage whatsoever arising from such cancellation.

19.2 In the event that the Customer cancels delivery of the Services the Customer shall be required to provide Moda with written confirmation of such, and shall be liable for the following cancellation fees:

Notice of Cancellation

Amount of Cancellation Fee

More than 180 days prior to your event

Fully refundable if space is rebooked

40 to 180 days prior to your event

50% of the deposit is refundable if space is rebooked

30 to 40 days prior to your event

Deposit is forfeit and 20% of estimated catering and beverage costs is payable

15 to 30 days prior to your event

Deposit is forfeit and 35% of estimated catering and beverage costs is payable

7 to 15 days prior to your event

Deposit is forfeit and 50% of estimated catering and beverage costs is payable

Within 7 days prior to your event

Deposit is forfeit and 100% of estimated catering and beverage costs is payable

20. Privacy Act 1988

20.1 The Customer agrees for Moda to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by Moda.

20.2 The Customer agrees that Moda may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:

(a) to assess an application by the Customer; and/or

(b) to notify other credit providers of a default by the Customer; and/or

(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or

(d) to assess the creditworthiness of the Customer. The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.

20.3 The Customer consents to Moda being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

20.4 The Customer agrees that personal credit information provided may be used and retained by Moda for the following purposes (and for other purposes as shall be agreed between the Customer and Moda or required by law from time to time):

(a) the provision of Services; and/or

(b) the marketing of Services by Moda, its agents or distributors; and/or

(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Services; and/or

(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or

(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Services.

20.5 Moda may give information about the Customer to a credit reporting agency for the following purposes:

(a) to obtain a consumer credit report about the Customer;

(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

20.6 The information given to the credit reporting agency may include:

(a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);

(b) details concerning the Customer’s application for credit or commercial credit and the amount requested;

(c) advice that Moda is a current credit provider to the Customer;

(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;

(e) that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;

(f) information that, in the opinion of Moda, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);

(g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;

(h) that credit provided to the Customer by Moda has been paid or otherwise discharged.

21. General

21.1 The failure by Moda to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Moda’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which Moda has its principal place of business, and are subject to the jurisdiction of the Brisbane Courts in that state.

21.3 Subject to clause 17, Moda shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Moda of these terms and conditions (alternatively Moda’s liability shall be limited to damages which under no circumstances shall exceed the Price).

21.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Moda nor to withhold payment of any invoice because part of that invoice is in dispute.

21.5 Moda may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

21.6 The Customer agrees that Moda may amend these terms and conditions at any time. If Moda makes a change to these terms and conditions, then that change will take effect from the date on which Moda notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for Moda to provide Services to the Customer.

21.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

21.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.