Terms & Conditions

1. BACKGROUND

(a) These Commercial Use Terms and Conditions comprise the terms of a legal agreement between (The South Coast Sandcastles we or us) and you (Terms).

(b) These terms are to be read in conjunction with the Booking Terms and Conditions.

2. USE OF THE RETREAT

(a) The South Coast Sandcastles, permits you to use the Retreat for Commercial Purposes in accordance with these Terms.

(b) The South Coast Sandcastles may exercise any of its rights as owner or occupant of the Retreat at any time.

(c) Prior to the commencement of your use of, or stay at, the Retreat, you must notify The South Coast Sandcastles of:

(i) your intended use of the Retreat;

(ii) number of Personnel;

(iii) occupants of the Retreat rooms; and

(iv) any Additional Services required.

3. ADDITIONAL SERVICES

In addition to the fee payable in connection with your use of the Retreat, if you request The South Coast Sandcastles to provide any Additional Services, you must pay The South Coast Sandcastles any additional fees for such Additional Services as agreed between the parties.

4. SECURITY

If additional security is required, as deemed reasonably necessary by The South Coast Sandcastles at any time, including for reasons relating to crowd control and supervisions, health and safety, emergency or compliance with Applicable Laws:

(a) The South Coast Sandcastles may arrange for additional security; and

(b) you must promptly pay or reimburse The South Coast Sandcastles for the costs relating to such additional security.

5. YOUR OBLIGATIONS

5.1 General

You must, and must ensure all Personnel:

(a) at all times remain mindful and respectful of other guests, staff and occupants at the Retreat or neighbouring properties;

(b) at all times, remain within allocated areas as indicated or otherwise identified by The South Coast Sandcastles as working areas, unless supervised by The South Coast Sandcastles;

(c) at the conclusion of your use of, or stay at, the Retreat, remove all of your property and equipment from the Retreat;

(d) not make any alterations or additions to the Retreat without The South Coast Sandcastles prior approval;

(e) not capture, publish or otherwise use imagery of the Retreat where the Retreat can be identifiable;

(f) not, in The South Coast Sandcastles opinion, harass guests, staff and occupants of the Retreat or neighbouring properties, or cause a nuisance; and

(g) not do anything that, in Hillcrest’s opinion, may adversely affect The South Coast Sandcastles or its business, reputation or goodwill.

The South Coast Sandcastles may refuse admission to or remove from the Retreat any person whose behaviour is unsatisfactory or may be contrary to these Terms or Applicable Laws.

5.2 PHOTOGRAPHY AND VIDEOGRAPHY

If your use of the Retreat includes photography or videography to be incorporated into Materials, you must:

(a) at least 3 Business Days prior to the commencement of your use of, or stay at, the Retreat, provide The South Coast Sandcastles with:

(i) the shoot list schedule;

(ii) proposed shooting location(s);

(iii) proposed Usage Rights of Materials (eg editorial, social media, website etc);

(iv) equipment list; and

(v) number of attendees at the shoot.

(b) promptly after your use of, or stay at, the Retreat, provide all Materials to The South Coast Sandcastles for approval prior to use by you or anyone else.

6. NO WARRANTIES

(a) Other than as specified in these Terms, The South Coast Sandcastles excludes all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise) in connection with your use of the Retreat, the provision or use of any Additional Services, or these Terms, to the fullest extent permitted by law.

(b) Nothing contained in these Terms excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under any national, state or territory legislation where to do so is unlawful.

(c) No warranty is given and The South Coast Sandcastles will not be liable for:

(i) acts and omissions of any person who stays, visits, occupies, or who is otherwise present on or near, the Retreat;

(ii) the availability, continuity, reliability, security or accuracy of the accommodation or facilities of the Retreat and of the Additional Services;

(iii) the suitability of the Retreat or the Additional Services for any particular purpose, or use under any specific conditions;

(iv) any loss of monies, valuables, goods or other property (whether tangible or not) that belong to you or any third person, that are brought into, onto or near the Retreat. You (and not The South Coast Sandcastles) are responsible at all times for such monies, valuables, goods or other property; and

(v) any Loss or delay caused, or contributed to, by a Force Majeure Event.

(d) You are responsible for all acts or omissions of any attendees staying on, visiting or occupying the Retreat.

7. INSURANCE

(a) You must take out a public liability insurance and any other insurance policies, deemed reasonably necessary by The South Coast Sandcastles.

(b) You must produce to The South Coast Sandcastles on request all policies of insurance referred to in clause 7(a) and receipts for premiums paid to establish that the policies are current and apply for the duration of your use of, or stay at, the Retreat.

8. LIABILITY

(a) You are liable for all Losses incurred by The South Coast Sandcastles in connection with recovering amounts owing to Hillcrest by you.

(b) The South Coast Sandcastles maximum aggregate liability for any Loss or Claim incurred or suffered by you under these Terms, however arising, is limited to the fee paid for use of the Retreat by you, in accordance with the Booking Terms and Conditions.

(c) Notwithstanding anything else, The South Coast Sandcastles is not liable to you for any Consequential Loss arising in connection with these Terms, however arising and even if The South Coast Sandcastles was advised of the possibility of such Consequential Loss.

9. INDEMNITY

You indemnify and hold harmless The South Coast Sandcastles and its Personnel (together, Indemnified Parties) against all Claims (including the cost of defending or settling any Claim) and Losses that the Indemnified Parties sustain or incur, directly or indirectly, as a result of or in connection with:

(a) any damage to the Retreat or its facilities;

(b) the stay on or the use of, the Retreat and its facilities by you or any third party;

(c) the use of, and access to, the Additional Services by you or any third party;

(d) a breach of these Terms by you;

(e) negligence or wilful default by you or your guests, invitees or attendees; and

(f) any act or omission by you or your guests, invitees or attendees.

10. INTELLECTUAL PROPERTY

(a) The ownership of The South Coast Sandcastles Intellectual Property Rights (whether existing now or at any time in the future), remains vested in The South Coast Sandcastles (or its licensors).

(b) You will not make any claim in relation to The South Coast Sandcastles Intellectual Property Rights, nor will you commit an act or omission that has the effect of infringing, or otherwise damaging the goodwill of, The South Coast Sandcastles Intellectual Property Rights.

(c) All Intellectual Property Rights subsisting in the Materials created by you, or your attendees, is owned by you on creation subject to payment by you of all charges pursuant to these Terms and the Booking Terms and Conditions, except for any Intellectual Property Rights subject to clause 10(a).

(d) In accordance with clause 5.2(b), Materials are subject to The South Coast Sandcastles approval prior to use. The South Coast Sandcastles may approve or disapprove use of any Materials at its discretion.

(e) You may only use the Materials strictly in accordance with the Usage Rights, agreed by the parties.

(f) You grant The South Coast Sandcastles a non-exclusive, worldwide, irrevocable, non-transferable, licence to use the Materials, including for promotional purposes.

11. TERMINATION

A party may terminate these Terms in accordance with the Booking Terms and Conditions.

12. CONSEQUENCES OF TERMINATION

On termination of these Terms:

(a) all amounts owing to The South Coast Sandcastles by you become due and payable to The South Coast Sandcastles; and

(b) you must vacate the Retreat and return all property of The South Coast Sandcastles in your possession or control.

13. NOTICES AND ELECTRONIC COMMUNICATIONS

13.1 Notices

A notice, consent, agreement, approval, confirmation, waiver, direction or similar given or required under these Terms:

(a) must be in writing, in English and signed by, or sent by email from, a person authorised by the sender;

(b) must be delivered to the recipient in person or by email or registered post to the email or address in the Parties section of these Terms, or as otherwise notified by the receiving party; and

(c) is deemed to be given by the sender, and received by the recipient:

(i) if delivered in person, on delivery;

(ii) if sent by email, at the date and time the email was sent, as recorded by the sender’s email server, unless the sender receives an automated delivery failure notice, in which case notice is deemed not to be given or received; or

(iii) if sent by registered post, 5 Business Days (or 10 Business Days, if posted outside Australia) after the date it was posted.

13.2 ELECTRONIC COMMUNICATION

The parties consent to giving and receiving notices electronically.

14. GENERAL

14.1 Costs

Each party must pay its own costs for the negotiation, preparation, execution and performance of these Terms.

14.2 Entire agreement

These Terms (and the Booking Terms and Conditions) constitute the entire agreement between the parties in relation to, and supersedes any prior conduct, arrangement, agreement or understanding of, its subject matter.

14.3 Prevailing terms

In the event of inconsistency between the Booking Terms and Conditions and these Terms, these Terms shall prevail.

14.4 Relationship of parties

(a) Unless otherwise provided in these Terms, no party is authorised to bind another party.

(b) Nothing in these Terms create an employment, agency, trust, partnership, fiduciary or joint venture relationship between any of the parties.

14.5 Severability

If any part of these Terms are or become invalid or unenforceable under any Applicable Law, it is severed in the relevant jurisdiction but only to the extent it is invalid or unenforceable.

14.6 Approvals and consent

Except as set out in these Terms, a party may:

(a) give or withhold approval or consent at that party’s discretion; and

(b) give approval or consent subject to conditions.

14.7 Assignment

You may not assign, novate, transfer or otherwise deal with any right or obligation under these Terms without the prior consent of Hillcrest. Hillcrest may assign, novate, transfer or otherwise deal with any right or obligation under these Terms without your prior consent.

14.8 Variations

These Terms may only be amended or replaced by a written agreement, signed by all parties.

14.9 Waivers

A waiver of a right, power or remedy must be signed by the party giving it and cannot be implied by conduct, delay or failure to act.

14.10 Survival

Each obligation and warranty capable of future operation will continue in force after these Terms are fully performed or has otherwise ended.

14.11 Governing law and jurisdiction

(a) These Terms are governed by the laws in force in New South Wales, Australia.

(b) Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in New South Wales, Australia and waives any right to claim that those courts are an inconvenient forum.

15. DEFINITIONS AND INTERPRETATION

15.1 Definitions

Additional Services means services other than providing access to use the Retreat.

Applicable Law means any law, regulation, mandatory guideline or standard, ordinance, court ruling or requirement or direction of a Government Agency, or similar, in any jurisdiction in which any part of these Terms are performed, or governing the Retreat or a party, at any time (including flag state laws, as the context permits).

Booking Terms and Conditions means the The South Coast Sandcastles Booking Terms and Conditions located at INSERT LINK

Business Day means a day that is not a Saturday, Sunday or public holiday in New South Wales, Australia.

Claim means any claim, demand, remedy, suit, action, proceeding, right of action, however arising.

Commercial Purposes means the use of the Retreat in connection with any business, commercial activity or other undertaking intended for profit, provided the scope of such activities are agreed between the parties.

Consequential Loss means any of the following:

(a) incidental, special, remote or unforeseeable loss or damage;

(b) loss of revenue, profit, income, bargain, opportunity, use, production, business, contract, goodwill, or anticipated savings, loss or corruption of data, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, but excluding loss of any amounts that, other than for the act or omission of a party, would have been payable under these Terms;

(c) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or

(d) loss or damage set out above in paragraphs (a) to (c) that is incurred or suffered by or to a third party.

Force Majeure Event means an event or circumstance:

(a) that is beyond the reasonable control of a party;

(b) which that party is not reasonably able to prevent or overcome; and

(c) which prevents that party from performing a material obligation under these Terms,

including, subject to satisfaction of the foregoing:

(a) extreme weather events, stormy waters, freak waves, fire, flood, explosion or natural disaster;

(b) acts of war, riots, strikes or terrorism;

(c) pandemic, epidemic, quarantine or other widespread threat to human health (including an outbreak or recurrence)

(d) government imposed shutdown or closure; or

(e) a change in Applicable Law.

Government Agency means any governmental, judicial or statutory body with authority or jurisdiction over these Terms or a party, and any relevant Stock Exchange.

Intellectual Property Rights means designs, copyright, trade marks, patents, operations, software or systems, trade names and domain names, rights in goodwill, rights in confidential information, databases or other intellectual property rights, whether under statute, common law, equity, custom or usage, and whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar rights which subsist or will subsist now or in the future in any part of the world.

Loss means any liability, loss, injury, illness, death, damage, cost or expense (including legal costs on a full indemnity basis), including Consequential Loss.

Materials mean all materials, works or subject matter produced for, in connection with, or otherwise arising from, the use of the Retreat, including:

(a) video and/or sound recordings, including B-Roll, behind the scenes footage, bloopers and outtakes, interviews, television commercials and voice-over recordings and other video content for social media use, including multiple edits and cut downs of such materials which may feature different or no order lines;

(b) images and artistic works, including banners, billboards, photographic stills, social media posts and stickers;

(c) material, including blog posts, PR releases, endorsements, social media posts, quotes relating to Hillcrest or the Retreat and testimonials;

(d) concepts and treatments; and

(e) other footage and stills from agreed shoots, filming, recordings, personal appearances and other activities.

Personnel means in relation to a party, any director, officer, employee, agent, contractor, sub-contractor, consultant or volunteer of that party.

Retreat means The South Coast Sandcastles retreat situated at 32 Duncan St, Huskisson NSW 2540, Australia and the accommodation and associated amenities (and if applicable, car park at that site).

Usage Rights means rights to create, edit, adapt, use, publish, communicate to the public, broadcast and otherwise deal with the Materials via any medium or channel.

15.2 INTERPRETATION

In the interpretation of these Terms, unless stated otherwise:

(a) a reference to AUD, $A, dollar or $ is to Australian currency;

(b) a reference to a party is to a party to these Terms and includes the party’s successors and permitted transferees and assigns, and if a party is an individual, includes executors and personal legal representatives;

(c) a reference to a person includes a natural person or legal entity;

(d) a reference to time is a reference to time in Sydney, New South Wales;

(e) if an obligation must be performed or an event must occur on a day that is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;

(f) any capitalised term not defined will have the meaning given in the Booking Terms and Conditions;

(g) words such as ‘including’ do not limit the preceding words;

(h) all grammatical forms of defined terms have a corresponding meaning;

(i) singular includes the plural and vice versa;

(j) a provision of these Terms must not be construed against a party on the basis that party was responsible for preparing it; and

(k) headings are for ease of reference only and do not affect interpretation.

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