TERMS AND CONDITIONS FOR 2nd SUB-CONTACTOR IF CHOSEN.
Terms and Conditions
1 Your obligations1.1 You agree to provide to each Passenger a copy of these Terms and Conditions and notify them that, by entering the Vehicle for the Event, they agree to be bound by these Terms and Conditions.
1.2 You agree to notify us if You have failed to provide a copy of these Terms and Conditions to any Passenger and otherwise complied with clause 1.1 no later than two (2) clear Business Days prior to the commencement of the Event.1.3 Subject to clause 1.2, You warrant that all Passengers have received a copy of these Terms and Conditions and been notified that, on entering the Vehicle for the Event, they will agree to be bound by those Terms and Conditions.
2 The Event
2.1 Nightcruiser’s chosen Sub-Contractor agrees to operate the Event in accordance with the Booking Form and these Terms and Conditions.
2.2 You acknowledge that the Vehicle may leave for the Event at any time from the time appointed for departure in the Booking Form, whether or not all Passengers have arrived for the Event or have entered or boarded the Vehicle.
2.3 Nightcruiser’s chosen Sub-Contractor will use its reasonable endeavours to commence the Event and conclude the Event at the times indicated in the Booking Form.
2.4 You acknowledge that the Event may be delayed in commencing or concluding for various reasons and You waive any rights You have or may have against Nightcruiser’s chosen Sub-Contractor in respect of any Losses incurred or likely to be incurred as a result of or otherwise connected with the Event commencing at a time or the Event concluding at a time other than the respective times indicated in the Booking Form.
2.5 You accept responsibility for ensuring that all Passengers at the Event have boarded the Vehicle:
(a) prior to the commencement of the Event; and
(b) prior to the resumption of travel from any destination or other stop during the Event, and You waive all rights You have or may have against Nightcruiser’s chosen Sub-Contractor for any Losses incurred or likely to be incurred as a result of or otherwise connected with a Passenger failing to board the Vehicle 3 Event Variation
3.1 Nightcruiser’s chosen Sub-Contractor may vary any aspect of the Event at any time, including at any time after You book the Event and after the Event commences.
3.2 Without limiting the generality of clause 3.1, the Event may be varied in any of the following aspects: (c) the date of departure or operation; (d) the route of the Event; (e) the cities, towns, ports or other destinations at which the Vehicle stops or visits during the Event; and (f) the duration of the Event.
3.3 Nightcruiser’s chosen Sub-Contractor is not obliged to notify You of any variation to the Event. Notwithstanding the foregoing, Nightcruiser’s chosen Sub-Contractor will use its reasonable endeavours to notify You prior to the Event commencing of any variation to the Event.
3.4 You waive Your rights against Nightcruiser’s chosen Sub-Contractor in respect of any Loss You incur or are likely to incur as a result of or otherwise connected with any variation to the Event under this clause 3. 4 Event Viability
4.1 Nightcruiser’s chosen Sub-Contractor acknowledges that the number of Passengers may be less than the Estimated Passenger Numbers for various reasons.
4.2 If the number of Passengers is at or below Event Viability, Nightcruiser’s chosen Sub-Contractor may, in its absolute discretion, do the following:
(a) combine the Event with another similar or otherwise compatible Event; or
(b) cancel the Event by notice in writing to You.
4.3 If Nightcruiser’s chosen Sub-Contractor cancels the Event pursuant to clause 3.4(b), You agree to pay a Cancellation Charge.
4.4 You acknowledge that, if Nightcruiser’s chosen Sub-Contractor combines Events pursuant to clause 3.4(a), people unconnected with Your group of Passengers will be attending the Event.
5 Luggage
5.1 No Passenger is permitted more than one piece of luggage.
5.2 No piece of luggage may weigh in excess of ten (10) kilograms or such other weight that Nightcruiser’s chosen Sub-Contractor determines in its absolute discretion and of which Nightcruiser’s chosen Sub-Contractor notifies You no later than one (1) Business Day prior to the Event commencing.
5.3 No Passenger may bring onto the Vehicle or permit the bringing onto the Vehicle of any of the following:
(a) any hazardous or dangerous substance ;
(b) any drug of dependence or other illegal substance; or
(c) any glass receptacle capable of containing a beverage.
5.4 Nightcruiser’s chosen Sub-Contractor may exclude any Passenger from the Event if the Passenger breaches this clause 5.
5.5 Without limiting the generality of clause 5.4, a Passenger may be excluded from the Event at any time after the Event commences if, in Nightcruiser’s chosen Sub-Contractor reasonable opinion, the Passenger breaches clause 5.3.
6 Passenger conduct during the Event
6.1 At all times during the Event, each Passenger must conduct himself or herself in a reasonable and courteous manner and otherwise in accordance with all legal requirements.
6.2 Nightcruiser’s chosen Sub-Contractor may provide any reasonable directions to Passengers for the purposes of the Event and each Passenger agrees to comply with each direction.
6.3 Without limiting clause 6.1, each Passenger must do the following:
(a) comply with all road safety laws, including all such laws affecting the behaviour of pedestrians;
(b) not cause or permit any part of his or her body or any other object to protrude from the Vehicle at all times that the Vehicle is in motion; and
(c) remain seated in the seats provided at all times that the Vehicle is in motion.
7 Additional passengers
7.1 You acknowledge that the Event is subject to a maximum number of Passengers, which Nightcruiser’s chosen Sub-Contractor may determine in its discretion.
7.2 Nightcruiser’s chosen Sub-Contractor may determine in its absolute discretion whether an Additional Passenger may attend the Event.
7.3 Without limiting the discretion in clause 7.2, Nightcruiser’s chosen Sub-Contractor may exclude any Additional Passenger from the Event if the Price applicable to that person is not paid in accordance with clause 10.9.
8 Passenger exclusion
8.1 Any Passenger who arrives for the Event, later than the scheduled time for departure specified in the Booking Form may be excluded from the Event.
8.2 Any Passenger may be excluded from the Event if the behaviour of that Passenger is, in Dreamscape Tours’ reasonable opinion, unacceptable, which includes :
(a) behaviour that could endanger other Passengers;
(b) behaviour in breach of these Terms and Conditions;
(c) the Passenger is or appears intoxicated;
(d) the Passenger smokes any tobacco product on the Vehicle (whether the Vehicle is in motion or not); (e) the Passenger is or appears to be affected by any drug of dependence or other illegal substance;
(f) the Passenger is offensive to another Passenger or any other person, including a member of the public;
(g) the Passenger engages in a fight (whether or not the fight is initiated by that Passenger);
(h) the Passenger is aggressive or intimidatory towards another Passenger or any other person, including a member of the public;
(i) behaviour that risks damage to the Vehicle or any other property; or
(j) behaviour that could damage the reputation of Nightcruiser’s chosen Sub-Contractor.
8.3 Nightcruiser’s chosen Sub-Contractor may cancel the Event at any time during the Event if:
(a) the behaviour of five (5) or more Passengers (Infringing Passengers) would permit Nightcruiser’s chosen Sub-Contractor to exclude those Infringing Passengers from the Event pursuant to clause 8.2; or (b) the circumstances otherwise reasonably justify cancellation.
8.4 The Price payable in respect of any Passenger excluded from the Event pursuant to clause 8.2 (Sum Forfeited on Exclusion) is forfeited. If any part of the Sum Forfeited on Exclusion has not been paid as at the date of exclusion, You agree to pay that amount to Dreamscape Tours on demand.
8.5 If Nightcruiser’s chosen Sub-Contractor cancels the Event pursuant to clause 8.3, the Price payable for each Passenger at the Event is forfeited (Sum Forfeited on Cancellation). If any part of the Sum Forfeited on Cancellation has not been paid as at the date of cancellation, You agree to pay that amount to Nightcruiser’s chosen Sub-Contractor on demand.
8.6 The Customer acknowledges that Nightcruiser’s chosen Sub-Contractor is not a common carrier and that the responsibilities and liabilities of a common carrier do not apply to Nightcruiser’s chosen Sub-Contractor or otherwise in respect of the Event. Without limiting the generality of the foregoing:
(a) at its discretion (but subject to these Terms and Conditions), Nightcruiser’s chosen Sub-Contractor may refuse any person entry to the Event; and
(b) all services are performed subject only to these Terms and Conditions.
9 Alcohol consumption
9.1 This clause 9 applies to the consumption of alcoholic beverages at any time during the Consumption Period.9.2 Subject to this clause 9, Passengers over the age of 18 are permitted to possess and consume alcoholic beverages on board the Vehicle.9.3 No Passenger is permitted to possess or consume during the Consumption Period more than the maximum quantity of alcoholic beverage specified by Nightcruiser’s chosen Sub-Contractor from time to time or, where no quantity is specified, no more than the equivalent of two (2) standard drinks an hour.9.4 The burden is on the Passenger to demonstrate to Nightcruiser’s chosen Sub-Contractor reasonable satisfaction that he or she is not in breach of clause 9.3.9.5 Passengers must not consume any alcoholic beverage after the Event commences and before the Event concludes, other than on the Vehicle.9.6 All consumption of alcoholic beverages must be in accordance with , and each Passenger otherwise must comply with, the Liquor Licensing Code of Conduct, a copy of which is available from our web site or please call our office for a copy.9.7 Passengers must not remove from the Vehicle any open bottle or other receptacle containing an alcoholic beverage.9.8 Passengers must not bring on to the Vehicle or cause to be brought onto the Vehicle an esky or other insulated or refrigerated receptacle capable of containing multiple alcoholic beverages (whether or not it contains alcoholic beverages).
10 Price and payment
10.1 You agree to pay the Amount Due for the Event according to this clause 10.10.2 You acknowledge that the Amount Due for the Event is calculated by multiplying the Estimated Passenger Numbers by the Price or as otherwise stated on the Booking Form.10.3 20% of the Amount Due for the Event must be be paid by way of a deposit (Deposit) and must be received by Show World Corporation Pty. Ltd trading as Nightcruiser Party Bus Tours in cleared funds no later than fourteen (14) days after booking the Event.10.4 If You book the Event within fourteen (14) days of the Event commencing, subject to any direction to the contrary, no Deposit is payable and You must pay the Amount Due for the Event immediately.10.5 The Deposit is non-refundable.10.6 The Balance must be paid in cleared funds (without deduction) no later than seven ( 7) Business Day prior to the commencement of the Event or as otherwise directed.10.7 Nightcruiser’s chosen Sub-Contractor may cancel the Event if You fail to satisfy either clauses 10.3 or 10.6 and, for the avoidance of doubt, Nightcruiser’s chosen Sub-Contractor may retain the Deposit if it cancels the Event pursuant to this clause 10.7.10.8 You forfeit the Price payable for each No-show. You and each No-show waives your respective rights against Nightcruiser’s chosen Sub-Contractor connected with the said amount and otherwise in respect of the Event insofar as it relates to the No-show. If any part of the said Price has not been paid, You agree to pay that amount to Show World Corporation Pty. Ltd trading as Nightcruiser Party Bus Tours.10.9 You agree to pay to Show World Corporation Pty. Ltd trading as Nightcruiser Party Bus Tours the Price for any Additional Passenger prior to the Event commencing.10.10 You agree to pay interest at a rate of 2% greater than the prevailing Commonwealth Bank overdraft rate on all amounts outstanding, payable from the date on which the amount is payable and concluding on the date the amount is received by Show World Corporation Pty. Ltd trading as Nightcruiser Party Bus Tours in cleared funds (without deduction or set off).
11 Bond and damage 11.1 At Show World Corporation Pty. Ltd trading as Nightcruiser Party Bus Tours’ option, You agree to pay a bond of an amount determined by Nightcruiser (Bond).11.2 Subject to any direction to the contrary, the Bond must be paid in cleared funds (without deduction) when paying the Balance.11.3 If Show World Corporation Pty. Ltd trading as Nightcruiser Party Bus Tour does not receive payment of the Bond in accordance with clause 11.2, the Event is cancelled and, for the avoidance of doubt, Show World Corporation Pty. Ltd trading as Nightcruiser Party Bus Tour will retain the Deposit.11.4 Nightcruiser’s chosen Sub-Contractor agrees to repay the Bond to You within five (5) Business Days of the conclusion of the Event, less any amount that Nightcruiser’s chosen Sub-Contractor reasonably considers necessary to:
(a) pay the costs of repairing any damage to the Vehicle (the repairs being effected in accordance with clause 11.6) or any other property damage caused (whether directly or indirectly) by a Passenger (Vehicle Damage); and
(b) to otherwise compensate Nightcruiser’s chosen Sub-Contractor for the following:
(i) any Losses incurred or that may be incurred in respect of that Vehicle Damage; or
(ii) any other act or omission of that or any other Passenger, including any Losses incurred or likely to be incurred as a result of the behaviour of the Passenger on the reputation of Nightcruiser’s chosen Sub-Contractor or any relationship Nightcruiser’s chosen Sub-Contractor has or may have with any other person (including any public house, bar, club or any other facility) .11.5 If the Bond is insufficient to pay the Reparation Costs, You agree to pay to Nightcruiser’s chosen Sub-Contractor the difference between Reparation Costs and the Bond. This amount must be paid within five (5) Business Days of the date of any demand in writing.11.6 Vehicle Damage must be repaired or rectified to Nightcruiser’s chosen Sub-Contractor’s reasonable satisfaction. 12 Event cancellation Cancellation by Dreamscape Tours
12.1 Nightcruiser’s chosen Sub-Contractor may cancel the Event at any time.
12.2 Without limiting the generality of clause 12.1, the Event may be cancelled after the Event commences for any reason whatsoever.
12.3 If Nightcruiser’s chosen Sub-Contractor cancels the Event pursuant to clause 12.1, it agrees to repay to You the Amount You Paid.
12.4 If the Event is cancelled (whether in whole or part) due to the cancellation or postponement of, or change in, an Independent Component of the Event, Nightcruiser’s chosen Sub-Contractor agrees to repay to You the Amount You Paid, less a sum equivalent to the Losses Nightcruiser’s chosen Sub-Contractor incurs or is likely to incur as a result of the cancellation or postponement of, or change in, the Independent Component of the Event.
12.5 Save for Your rights under clauses 12.3 and 12.4, You waive Your rights against Nightcruiser’s chosen Sub-Contractor in respect of any Loss You incur or are likely to incur as a result of or otherwise connected with the cancellation of the Event. Cancellation by You
12.6 You may cancel the Event at any time by notice in writing to Show World Corporation Pty. Ltd trading as Nightcruiser Party Bus Tours. .
12.7 You forfeit the Deposit if You cancel the Event.
12.8 Without prejudice to Nightcruiser’s chosen Sub-Contractor’s rights under clause 12.7, You agree to pay to Show World Corporation Pty. Ltd trading as Nightcruiser Party Bus Tours an amount equivalent to the Losses incurred or likely to be incurred by Nightcruiser’s chosen Sub-Contractor as a result of or otherwise connected with the cancellation of the Event, including fees charged by the supplier of any Independent Component of the Event (Cancellation Costs).
12.9 Nightcruiser’s chosen Sub-Contractor agrees to use its reasonable endeavours to minimise the Cancellation Costs.
12.10 If You cancel the Event on the day on which the Event is scheduled to take place, You agree to pay a Cancellation Charge.
12.11 If the Cancellation Charge payable under clause 12.10 or under any other provision in these Terms and Conditions is less than the Cancellation Costs, You agree to pay to Show World Corporation Pty. Ltd trading as Nightcruiser Party Bus Tours on demand an amount equivalent to the difference between Cancellation Costs and the Cancellation Charge (Make Up Payment).
12.12 Any Cancellation Charge or Make Up Payment may be set off against the Amount You Paid on or before the date of cancellation. If the Amount You Paid on or before the date of cancellation is less than the Cancellation Charge or Make Up Payment (as the case may be), You agree to pay the difference to Show World Corporation Pty. Ltd trading as Nightcruiser Party Bus Tours on cancellation.
13 Warranty and indemnity
13.1 Nothing in these Terms and Conditions purports to exclude, restrict or modify, or have the effect of excluding, restricting or modifying, any condition or warranty implied by or otherwise having effect pursuant to legislation (including the Trade Practices Act and any State or Territory legislation concerning consumer protection, fair trading or the sale of goods or services) (Implied Term), where to do so would have the effect of rendering the relevant provision in these Terms and Conditions void or otherwise unenforceable.
13.2 Subject to clause 13.1: (a) all Implied Terms and any other conditions or warranties otherwise implied by law are excluded from these Terms and Conditions; and (b) Dreamscape Tours’ liability for a breach of any Implied Term is limited to the full extent permitted by law.
13.3 You acknowledge that it is fair and reasonable for Nightcruiser’s chosen Sub-Contractor to rely on the limitation of liability afforded to it by clause 13.2.
13.4 You warrant that each Passenger is in reasonably good health and otherwise fit to participate in the Event.
13.5 You indemnify Nightcruiser’s chosen Sub-Contractor and agree to hold Nightcruiser’s chosen Sub-Contractor harmless in respect of any Losses it incurs or may incur as a result of or otherwise connected with a breach of the warranty in clause 13.4.
14 Limitation of liability
14.1 Each party’s liability under these Terms and Conditions in respect of Losses incurred by any other party (including any Passenger) excludes and is limited to the extent that person contributes in whole or in part to the Loss.
14.2 You agree that, save to the extent provided to the contrary in these Terms and Conditions, Nightcruiser’s chosen Sub-Contractor has no liability to You in respect of any Claim for or involving a Loss incurred or likely to be incurred by You as a result (whether directly or indirectly and whether in whole or in part) of or otherwise connected with the Event. This includes any Claim concerning the loss of any personal property of any Passenger.
14.3 Without prejudice to clause 14.2 and as a separate and independent provision, You agree that, save to the extent provided to the contrary in these Terms and Conditions, Nightcruiser’s chosen Sub-Contractor has no liability to You in respect of any Claim for or involving a Loss incurred or likely to be incurred by You as a result (whether directly or indirectly and whether in whole or in part) of or otherwise connected with the negligence of Nightcruiser’s chosen Sub-Contractor.
14.4 To the extent necessary to give effect to clause 14.2 and 14.3, You waive any right You have or may have to make or pursue any Claim against Nightcruiser’s chosen Sub-Contractor and otherwise You release Nightcruiser’s chosen Sub-Contractor in respect of that Loss and/or Claim.
14.5 The limitation of liability in this clause 14 does not apply to any Losses incurred directly as a result of:
(a) Nightcruiser’s chosen Sub-Contractor wilful misconduct or gross negligence;
(b) the death of any person; or
(c) a breach of these Terms and Conditions by Nightcruiser’s chosen Sub-Contractor, limited to the Price payable by the affected Passenger.
14.6 Notwithstanding anything to the contrary in these Terms and Conditions, You acknowledge that Nightcruiser’s chosen Sub-Contractor is not responsible for any Independent Component of the Event and is not liable for any Losses You incur or may incur in respect of an Independent Component of the Event, and You waive any rights You have or may have against Nightcruiser’s chosen Sub-Contractor in respect thereof.
14.7 Where one Passenger engages in any conduct against or in respect of any other Passenger (Affected Passenger), including any sexual harassment or other misconduct, You and the Affected Passenger waive any rights against Dreamscape Tours for any Claim concerning or involving the said conduct.
14.8 If any Passenger is excluded from the Event or if the Event is cancelled, each affected Passenger waives his or her rights against Nightcruiser’s chosen Sub-Contractor connected with the exclusion from the Event or the cancellation of the Event (as the case may be), including the loss of enjoyment of the Event and the loss of any sum as a result of the exclusion or cancellation.
15 Miscellaneous Notice
15.1 Any notice provided under these Terms and Conditions must be sent or delivered to the receiving party at the address set out in the Booking Form.
15.2 All notices referred to in these Terms and Conditions are deemed to have been duly given or made: (a) two (2) Business Days after being deposited in the mail with postage pre -paid; (not possible) (b) if delivered by facsimile, when the activity report confirms successful transmission; and (not possible) (c) if delivered by email, at the time the email is sent, provided the party providing the notice receives on its computer a receipt of the email having been received by the recipient. (not possible) Severance
15.3 If any provision of these Terms and Conditions is to any extent invalid, illegal or unenforceable, that portion of the provision causing the provision to be invalid, illegal or unenforceable is severed and the validity, legality, and enforceability of the remaining provision (and any application of the said provisions) will not in any way be affected or impaired. Waiver
15.4 No failure or delay on the part of any of the parties relating to the exercise of a right, power, privilege or remedy provided under these Terms and Conditions operates as a waiver of that right, power, privilege or remedy or as a waiver of any preceding or succeeding breach by the other party (for this purpose only, all Passengers are characterised as a single party).
15.5 No single or partial exercise of any right, power, privilege or remedy preclude s any other or further exercise of that or any other right, power, privilege or remedy provided in these Terms and Conditions, all of which are several and cumulative and are not exclusive of each other or of any other rights or remedies otherwise available to a party, at law or in equity. Governing law
15.6 This Deed is governed by the laws of the State of Victoria, Australia. Jurisdiction
15.7 Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of the Victoria, Australia for all matters, issues or disputes arising out of or otherwise connected with these Terms and Conditions or the Event.
16 Definitions & Interpretation Definitions
16.1 In these Terms and Conditions, unless the context requires another meaning:
Additional Passenger means any person seeking to attend the Event in addition to the Estimated Passenger Numbers, which, for the avoidance of doubt, does not include a person who was not expected by You to attend the Event on the date on which You booked the Event, where the number of Passengers attending the Event is less than the Estimated Passenger Numbers;
Affected Obligation has the meaning ascribed to that term in clause Error! Reference source not found.;
Amount Due for the Event means the Price multiplied by the Estimated Passenger Numbers;
Amount You Paid means the amount You had paid in respect of the Event up to and including the date of cancellation;
Balance means Amount Due for the Event less the Deposit (if any);
Booking Form means the form used to book the Event and any brochure, website or other information memorandum that contains information of the Event as at the date the Event is booked;
Business Day means any day that is not a Saturday, Sunday or a public holiday or bank holiday in the capital city of the State in which the Event takes place or predominantly takes place;
Cancellation Charge means 75% of the Amount Due for the Event;
Cancellation Costs has the meaning ascribed to that term in clause 12.8;
Claim means any claim, allegation, suit, action, demand, cause of action or proceeding (including any prosecution by any statutory authority, in which the authority seeks a pecuniary penalty), irrespective of: (i) when it arises;
(ii) whether or not it is actual or contingent; or
(iii) whether or not it is at law (including under contract or tort, which includes negligence), in equity or under statute;
Consumption Period means the period beginning five (5) hours prior to the commencement of the Event and ending on the conclusion of the Event;
Deposit has the meaning ascribed to that term in clause 10.3;
Nightcruiser’s chosen Sub-Contractor means Show World Corporation Pty. Ltd trading as Nightcruiser Party Bus Tours ABN 121 836 066;
Estimated Passenger Numbers means the number of Passengers You estimate will attend the Event at the date You book the Event;
Event means the tour, charter or activity offered by Nightcruiser’s chosen Sub-Contractor , as described in the Booking Form;
Event Viability means the number of Passengers under which an Event is not commercially viable for Nightcruiser’s chosen Sub-Contractor, that number being 35 or such other number of Passengers, either noted on the Booking Form or otherwise notified to You;
Independent Component of the Event means a component, leg or element of an Event operated by a third party or any other service that forms part of or is otherwise delivered in connection with an Event that is provided by a third party;
Lossmeans any damage, debt, loss, foregone profit, penalty, fine, expense, liability or costs (whether incurred or contingent);
No-show means each Passenger fewer than the Estimated Passenger Numbers;
Passenger means each person who attends the Event (including each Additional Passenger), which will include You, if You attend the Event;
Price means the price for a Passenger to attend the Event, as set out in the Booking Form;
Reparation Costs means the costs referred to in clause 11.4;
Terms and Conditions means this document;
Vehicle means the coach, boat or other conveyance used to provide transport for, or otherwise in connection with, the Event; and You means the person who books the Event, being the person who completes the Booking Form or the person who otherwise accepts responsibility for paying the Price, and each Passenger, where that is consistent with the context.
16.2 In these Terms and Conditions, unless the context requires another meaning, a reference:
(a) to the singular includes the plural, and vice versa;
(b) to a gender includes all genders;
(c) to a document (including these Terms and Conditions) is a reference to that document (including any Schedules and Annexure), as amended, consolidated, supplemented, novated or replaced;
(d) to an agreement includes any undertaking, representation, deed, agreement or legally enforceable arrangement or understanding, whether written, oral or implied;
(e) to a party means a party to these Terms and Conditions;
(f) to a person (including a party) includes:
(i) an individual, company, other body corporate, association, partnership, firm, joint venture, trust or Government agency; and
(ii) the person’s successors, permitted assigns, substitutes, executors and administrators;
(g) a group of persons or things (including a reference to the “Passengers”) is a reference to any two or more of them jointly and to each of them individually ;
(h) to a clause is to a clause of these Terms and Conditions;
(i) to a notice means a notice, approval, demand, request, nomination or other communication given by one party to another, under or in connection with these Terms and Conditions;
(j) to a law includes any legislation, judgment, rule of common law or equity, and is a reference to that law as amended, consolidated, supplemented or replaced, and includes a reference to any regulation, by-law or other subordinate legislation;
(k) to time, is to the time in Melbourne, Victoria; and
(l) to the words “including” or “includes” means “including, but not limited to”, or “includes, without limitation” respectively.
16.3 Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.
16.4 Headings are for convenience only and do not affect the interpretation of these Terms and Conditions.
16.5 If a period occurs from, after or before a day or the day of an act or event, it excludes that day.
16.6 If a period commences or ends on a day that is not a Business Day, the period will commence or end (as the case may be) on the next Business Day.
16.7 Unless indicated to the contrary, if the doing of any act, matter or thing under these Terms and Conditions is dependent on the provision of Nightcruiser’s chosen Sub-Contractor consent or approval or is within Nightcruiser’s chosen Sub-Contractor’s discretion, the consent or approval must be given or the discretion must be exercised on reasonable grounds.
16.8 A warranty, representation, covenant or obligation given or entered into: (a) by more than one person (which includes the Passengers by operation of clause 17.3 or 17.4) binds them jointly and severally; or (b) in favour of more than one person (which includes the Passengers by operation of clause 17.3 or 17.4) is for the benefit of them jointly and severally.
16.9 For the purposes of these Terms and Conditions, a Event commences when the first Passenger enters or boards the Vehicle and concludes when the Vehicle arrives at the destination specified in the Booking Form as the end of the Event.
16.10 A reference to “during the Event” is to any time during the period referred to in clause 16.9.
17 Application of these Terms and Conditions
17.1 By booking the Event, You agree to be bound by these Terms and Conditions.
17.2 For the purposes of clause 17.1, You are consider to book an Event by completing the Booking Form.
17.3 You execute these Terms and Conditions on Your own behalf and as agent for each Passenger and You warrant to Nightcruiser’s chosen Sub-Contractor that You have all necessary authority for the purposes of this clause 17.3.
17.4 Without prejudice to clause 17.3, each Passenger agrees to be bound by these Terms and Conditions by entering or boarding the Vehicle for the Event.
TERMS AND CONDITIONS FOR 3rd SUB-CONTACTOR IF CHOSEN.
Terms and conditions.
By you [placing a booking with the Sub-Contractor [Supplier] the Customer [Buyer] acknowledges that they have read, understood and agree to accept the Terms and Conditions as detailed below.
Where the Customer is an individual, no part of these Terms and Conditions affects your rights as a consumer. These Terms and Conditions are in addition to your rights as a consumer.
In the following terms and conditions, ‘the Company’ refers to the Sub-Contractor, its subsidiaries, brands or identities under which the company may trade, ‘the Customer’ and/or ‘the Agent/Hirer’ refers to the person and/or organisation making the booking and ‘the Driver’ refers to the driver or drivers of the coach, the coach operator or supplier of the vehicle.
The Company provides a transport booking and management service, working closely with travel & booking agents. The Company manages the booking process, allocation of bookings to service operators, and the overall quality of the service provided to agents and customers.
1.Application
These Standard Terms and Conditions shall apply whether the agreement is verbal or written and shall enter into force immediately upon the Company accepting a booking via the Company’s booking system. The Agent/Hirer shall at all times remain solely responsible for the acts and/or omissions of the passengers permitted to travel by Agent/Hirer (whether directly or indirectly) and therefore any additional costs incurred by the Company during the performance of the contract shall be borne by the Hirer irrespective of whether the Agent/Hirer travels.
2.Quotations
All prices are valid as long as the Agent/Hirer accepts the quotations. Price changes may occur due to reasons outside our control that increase the cost of the product or service. Where an obvious error has occurred with the quoted/accepted price, we reserve the right to advise the customer of the error and provide an amended price for the journey and void the quote or confirmed booking.
3.Payment
A 20% deposit is required immediately upon the Agent/Hirer accepts the quotation to secure the booking.
All monies must be paid in full before the performance of the booking unless expressly agreed by the Company in writing. If any outstanding monies are due, the Company reserves the right to collect the monies due from the original credit/debit card used by or for the hirer at any time.
If any payment is not made by the due date, the Company reserves the right to cancel the booking and any monies paid will be forfeited. In addition, the Company can no longer guarantee the quoted price.
All bookings made using credit or debit cards will incur a processing fee.
4.Booking Confirmations and Amendments
It is the responsibility of the Customer [Buyer] to check the Booking Confirmation for its accuracy and completeness, any discrepancies found in the Booking Confirmation should be communicated to the Company as a matter of urgency. It is the customer’s responsibility to ensure the accuracy of their booking details. The Company should not accept responsibility for any errors relating to this.
If a Customer requires an amendment to their Booking, the amendment will only be considered as implemented when the Customer has it confirmed in writing and the Company has acknowledged said amendment with a new Booking Confirmation.
If an updated Booking Confirmation has not been received by the Customer with the updated details the Customer will be subject to the terms of the original Booking Confirmation.
It is the Customer’s responsibility to ensure that all trip details are complete and correct and at no time should verbal amendments be considered as confirmation of a change to an existing booking. Depending on the nature of the booking amendment, additional charges may be required.
No amendment can be agreed with the Driver and the Driver does not have the authority to bind the Company in any manner whatsoever.
5.Customers Service
The Company operates a customer service improvement programme to make sure that any service issues are dealt with promptly and trigger an improvement to the procedures used.
Any complaints must be made in writing in a speedy and timely manner, the Company will be unable to accept any complaints or apply compensation for complaints received more than 14 days after the date of travel. Any remedies or compensatory measures offered (if any) by the Company are at the strict discretion of the management of the Company. The Hirer also agrees that in the event of a dispute arising from a booking, a chargeback request will not be raised through the card issuer or bank.
Any complaints regarding the condition of the vehicle supplied or its facilities should be supported by photographic evidence.
6.Additional Charges and Surcharges
Unless it has been agreed otherwise, the price will not include tickets, admission charges, ferries, road tolls, entry fees or parking. However, the Company may make these arrangements, on request, on the Customer’s behalf and would do so acting as an agent for the Customer. This means that any terms and conditions applicable to that transaction by that supplier (i.e. those relating to payment, cancellation, refunds etc.) would be as binding on the Customer as if they had made these arrangements directly. The Company will not enter into any arrangement on the Customer’s behalf until payment from the Customer to the Company has been made.
Should the customer instruct the Driver to, or otherwise make changes to the booking and these changes incur additional costs and charges, either before or during the booking, the Customer accepts full liability for said charges.
Should the Customer be late for any pickup as set out in the Booking Confirmation the Hirer will be liable for any additional costs incurred by the Company in providing the Service including, without limitation, the costs of obtaining a replacement vehicle or service if the original becomes unavailable, and obtaining additional Drivers.
Any departures that take place 15 minutes or later than the scheduled/confirmed pickup time overtime charges may be levied (from the scheduled/confirmed pickup time) at the rate of $20 inc GST per 15 mins( $80 inc GST per hour
7. Bonds:
The Company may charge a refundable bond for hires it deems to be at risk of additional charges and or damages. Examples: Weddings, Winery tours, Late night and/or party related hires, etc. . The bond can vary between $100 and $300 and is dependant on the nature of the trip and the number of passengers. This can be requested at any point from the date of booking up until the day of travel and is generally paid to the driver on the day. Providing there are no issues, the bond will be returned upon completion of the journey.
8.Use of the Vehicle
The Agent/Hirer cannot assume the use of the vehicle between outward and return journeys nor will the vehicle remain at the destination for the Hirer’s sole use unless this has been expressly agreed in writing by the Company. The Company reserves the right to levy additional charges for timings or mileage over and above the original agreement on a pro-rata basis as confirmed to the Hirer at the time of booking.
The Company reserves the right to subcontract to another operator to perform the hire or to supply replacement vehicles with the same number of seats. If a vehicle of the differing specification is supplied, the Company’s liability will be limited to the amount specified in our standard table of compensation set out in Appendix. If for operational reasons the Company is compelled to supply a larger coach than required this will be at no extra charge (unless the number of passengers is increased from the original booking).
9.Breakdown or Delay
The Company may give advice on journey times in good faith, but cannot guarantee that the journey is completed by a specific time and cannot accept any responsibility or liability whatsoever for traffic congestion, road accidents, adverse weather conditions, compliance with requests of the police, customs or other government officials and security services or other matters outside its reasonable control and will not be liable for any inconvenience or loss incurred caused by a breakdown or unforeseen delay be that en-route to pick up the Hirer or en-route to the booking destination as a result.
It is strongly recommended that the Hirer should consider insuring against this risk if journey times are particularly crucial, for example for the commencement of an event.
10.Route
Unless the agent/hirer has advised of a particular route and specified it at the time of booking, the route taken will be entirely at the discretion of the Company or Driver according to road, traffic and weather conditions at the time of travel. The vehicle will depart at the times agreed by the Hirer at the time of the Booking Confirmation; no price discount shall be given if the route chosen is not actually the shortest.
All pick-up and drop-off locations and routes of travel must be legal points for embarkation and disembarkation and suitable for the vehicle utilised. Where that is not the case, the driver will advise the client of the nearest pick-up or drop-off location that meets this requirement, or take the route of travel required to meet this requirement.
Stops will be made at suitable points to satisfy legal requirements regarding breaks and rest for Drivers. It is the Hirers’ responsibility to account for all passengers at those times. The Company cannot accept liability for any losses incurred by passengers who fail to adhere to the Hirers’ instructions.
Any changes requested to the route by the Customer shall be at the Driver’s sole discretion and the Driver may charge an additional fee if additional drop-off points are requested and agreed by the Driver.
11.Passenger Numbers
The vehicle supplied by the Company will take into account the number of passengers specified at the booking time. The Customer must ensure they specify the correct information at the time of the booking and inform the Company as soon as possible if there are any changes.
12.Property
The vehicles are subject to statutory safety restrictions on the carriage of luggage and the Driver has sole authority to decide whether the property is suitable to be carried on that vehicle.
Whilst The Company will take all reasonable care with passenger’s property it cannot accept liability for any damage to, or loss of that property being carried on the vehicle and the Company strongly recommends that no valuables should be left on the vehicle at any time, even if that vehicle is locked.
Nor can the Company accept responsibility for any loss of or damage to property left on the vehicle after hire. Property found on the vehicle after hire will be held at the vehicle operating base for a maximum period of 30 days. It is the Agent/Hirers’ or the passenger’s responsibility to collect the property and any costs incurred to collect the property are to be borne by the Hirer or passenger. Property is to be collected at a time agreed by the Company and the Hirer or passenger.
13.Cancellation by Hirer
All requests for cancellations must be made in writing. Should the Hirer wish to cancel a booking the following terms and charges shall apply.
- in the event of cancellation by the Hirer, all deposits are non-refundable.
- 48 hours or more before the initial date of travel – no cancellation fee will be charged except the deposit
- Between 48 hours and 24 hours before the initial date of travel – a charge equivalent to 50% of the total order value shall be applied.
- Less than 24 hours before the initial date of travel – 100% of the total booking amount will be charged
14.Cancellation by the Company
In the event that the Company is unable to provide a vehicle or vehicles to meet all or part of the Customer’s booked requirements due to reasons of emergency, vehicle unavailability, or other reason, the Company will take all reasonable measures to provide a replacement or alternative solution.
If this is not possible, the Company retains the right to return all monies paid and, without liability, cancel the booking providing the Customer with as much notice as possible.
In such circumstances, the Company shall have no liability for any inconvenience or loss incurred and will not be liable for any direct or consequential costs howsoever arising. It is strongly recommended that the Customer should consider insuring against this risk.
15.Vehicle Photographs
On request, the Company can provide an indicative photograph of the type of vehicle being supplied. The photograph supplied is illustrative only and maybe a different make/model with a different livery and appearance to that supplied to the booking.
16.Purpose of Journey
The Company must be notified of the purpose of your journey, including but not limited to bookings for sporting events, music festivals or political demonstrations and rallies at the time of booking. There may be specific legal or other requirements that could affect the booking.
Failure to notify the Company correctly of the nature of the journey will be construed as a breach of contract and at the Company’s absolute discretion may lead to termination of the booking without compensation or refund.
17.Force Majeure
Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its reasonable control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections, strikes, pandemics, including, without limitation, failure of suppliers, subcontractors, and carriers, bad weather, and/or any other cause beyond the reasonable control of the party whose performance is affected to substantially meet its performance obligations under this Agreement.
18.Driver’s Hours
Driver’s Hours (Fatigue Management) and rest periods are strictly regulated by Australian state and federal government law and the Agent/Hirer accepts responsibility for timings agreed at confirmation of booking. The Agent/Hirer accepts that neither they nor their passengers shall delay or interrupt the journey in such a way as to cause the Driver to breach Drivers Hours regulations and must adhere strictly to all collection times contained in the Booking Confirmation. If any breach is likely to occur the hirer agrees to pay any additional costs incurred.
If delays occur for whatever reason, the Company may take whatever action is deemed necessary for the Vehicle in order to comply with the law. Where delays do occur the Company cannot be held responsible for any losses arising as a result of those delays or non-performance of the services unless they are due solely to the negligence of the Company.
19.Passenger Conduct
It is incumbent upon the Agent/Hirer and the Agent/Hirer’s party to behave in a proper manner for the duration of their journey. The Driver is responsible for the safety of the vehicle and as such may refuse to allow a passenger or passengers to board the vehicle or eject them from the vehicle if, in the Driver’s sole discretion, the passenger is considered unfit to travel for whatever reason (for example, being intoxicated, aggressive or abusive). The Driver may refuse to continue a journey if, in the Driver’s sole discretion, considers any passenger to be behaving in such a way that may compromise the safety of other persons, the contents of the vehicle or the vehicle itself.
In such event, at the Driver’s sole discretion, the journey may continue once the passenger or passengers have been removed from the vehicle, but should passenger conduct result in summary termination of the journey, the company reserves the right to cancel any other parts of a booking, and in such circumstances the forfeiture of any monies paid, and no claims for compensation or refund in either whole or part shall be considered.
Any damage caused to the vehicle by the Hirer or any of the passengers shall be the responsibility of the Hirer and the Hirer shall be liable for all costs related.
20.Alcohol, Tobacco or Drug Consumption
No open alcohol or glass products are allowed in the vehicle at any time.
All vehicles are strictly non-smoking by law.
Non-compliance with a Driver’s request for passengers to refrain from drinking alcohol, the smoking of tobacco or consumption of illegal narcotics may result in summary termination of the journey, cancellation of any other parts of a booking and, in such circumstances, the Hirer shall remain liable for any sums due under this Agreement and the Company shall have no liability to the Hirer and no refunds shall be provided.
21.Animals
With the specific exception of recognised assistance dogs, (which includes guide dogs), no animals are permitted to be carried on any vehicle booked under the terms of this agreement, unless specific permission has been obtained in writing from the Company prior to the commencement of any journey.
The inclusion of this clause should not be taken to imply that permission will be given for the carriage of animals other than recognised assistance dogs, and specific requirements may be given with regards to restraint of aforesaid animals to ensure safe transit of any animals for which permission is given. Failure to comply with any reasonable requirements may result in summary termination of the journey, removal of the animal from the vehicle and additional charges for any damages or mess left in the vehicle.
22.Limitation of liability
Subject to the remaining provisions of this clause, the Company’s liability to the Agent/Hirer under or in connection with this Agreement for all and any direct loss or damage arising from any one incident or series of connected incidents is limited to the booking value.
Neither the Company nor the Agent/Hirer excludes or restricts in any way its liability under or in connection with this Agreement for death or personal injury caused by its negligence or to any extent not permitted by law.
The Company shall not be liable to the Agent/Hirer (whether in contract, tort, under the statute, for misrepresentation or otherwise including in each case negligence) and whether or not the Hirer was advised in advance of the possibility of such loss or damage, for:
- any of the following types of loss or damage whether direct, indirect or consequential howsoever arising under or in connection with this Agreement or any part of it: loss of profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of business, wasted expenditure, loss from business interruption, loss or destruction of data, loss of contracts, loss from the expenditure of time by managers and employees, liability to third parties, pecuniary losses arising from goodwill, or loss of or damage to goodwill; or
- any indirect or consequential losses whatsoever.
Nothing in this clause or this Agreement excludes or limits the Customer’s liability to pay (without set-off) the charges or any Additional Charges.
23.Enforceability
If any provision or term of these Terms and Conditions shall become or be declared illegal, invalid or unenforceable for any reason whatsoever, such term or provision shall be deleted but all other terms will remain valid.
24.Governing Law
These terms and Conditions together with any Booking Confirmation shall be subject to and construed in accordance with the laws of Australia. The parties hereby agree to submit to the exclusive jurisdiction of the courts of Victoria.
25.Covid-19
It is the responsibility of the Agent/Hirer to ensure all government laws, signage displayed, requests by the Driver or Company and all procedures related to Covid-19 are adhered to. The Driver and Company reserve the right to refuse entry or terminate a charter if any passengers are exhibiting symptoms associated with COVID-19 and will not be liable for any costs associated with this.
|
©