OMG XP Pty. Ltd.
Terms of Service Agreement
Definitions and Terms:
Company: OMG XP Pty. Ltd.; A.C.N. 632 731 705 (‘OMG XP’ or ‘Company’)
Provider/Supplier: Any third party agencies, which have been instructed or booked by the Company on behalf of the Client, the Participant or the Recipient
Travel Experience: Any experience including international or domestic travel
General Experience: Any experience not considered a travel experience, including, but not limited to digital experiences, executive lifestyle management, events and client relations services
Gift: Any goods including, but not limited to, bespoke gifts, merchandise or hampers
Creative: Graphic design, photo production, video production, audio visual, digital content (including, but not limited to, newsletters, social posts, website content, online streaming and podcasts), print assets (including, but not limited to, marketing collateral and event signage)
Client: The client is the company or individual contracting with OMG XP Pty. Ltd. and on behalf of the Participant or Recipient
Participant: The individual partaking in the travel experience, general experience or service
Recipient: Gift recipient or end user
EXPERIENCES
The Company will rely on the authority of the Client to act on behalf of the Participant and the Recipient, and the Client will bind themselves, the Participant and the Recipient to the terms and conditions as set out below.
1. Passports & Visas:
All Participants of a travel experience must be in possession of a valid passport (machine-readable, where applicable) for international travel with most countries requiring at least six (6) months validity from the date of return. When assisting with an international travel booking, the Company will assume all Participants possess a valid Australian passport or a permissible passport for the travel experience destination. If this is not the case, the Company must be informed as a priority. Visas will not be supplied as part of the travel experience inclusions and Participants will be required to pay for and arrange any relevant documentation to gain entry into a country. It is important all travellers hold valid passports, visas and re-entry permits, which meet the requirements of immigration and other government authorities. Any fines, penalties, payments or expenditures incurred as a result of such documents being arranged or in the event they do not meet the requirements of those authorities, will be the sole responsibility of the Participant. It is also the responsibility of the Participant to supply the Company with accurate information.
2. Travel Insurance:
While basic travel insurance is obtained on behalf of the Participant for travel experiences, Participants are strongly advised to purchase additional cover per their personal requirements. Should Participants require a copy of the travel experience’s included insurance policy, the Company will provide this within a reasonable timeframe of the initial request. Travel insurance policy details will be provided to all Participants as part of trip briefing material up to 72 hours before departure. Some of the proposed and/or booked activities or services may not be covered under the travel experience’s included basic travel insurance policy. Additional Participant insurance protection should be obtained by the Participant and include cover for cancellation, medical and repatriation expenses, personal injury, accident and death, loss of personal effects, luggage and money, adventure activities (including, but not-limited to self-drive experiences, water activities and aviation activities), and personal liability insurance. All luggage and personal effects are at all times and in all circumstances at the risk of the Participant. It is the responsibility of the Client to approve the itinerary with this knowledge and the responsibility of the Participant to advise the Company’s trip host within 72 hours of the activity should they not wish to participate. Partaking in any planned or unplanned activity, experience or service is entirely at the risk of each Participant, including in the event the Company assists in organising activities or services, which are deemed optional or unplanned. The Company will not be held liable in any way.
3. Health:
Participants must ensure they are aware of any health requirements and recommended precautions relevant to their travel experience or general experience and ensure they carry all necessary vaccination documentation. In some cases, failure to present required vaccination documentation (e.g. proof of Yellow Fever vaccination) may deny one’s entry into a country. The Company recommends Participants consult with their local doctor, travel medical service or specialist vaccination clinic before commencing a travel experience or general experience. The Company takes no responsibility for individuals who are unable to attend their travel experience on account of their failure to meet any particular country’s health requirements. It is the responsibility of the Participant to disclose to the Company any allergies, medical conditions or disabilities, which may affect their ability to participate in elements of an experience in advance of commencing the experience. Where possible, the Company, with the approval of the Client, will attempt to adjust the experience or entire itinerary to accommodate such conditions. It is the responsibility of the Participant to ensure they have arranged, at their own expense, appropriate medicine, support and adequate insurance cover for any conditions not included in the basic travel insurance provided.
4. Adverse weather
In the event of adverse weather conditions, some experiences may be cancelled. The Company will attempt to arrange a similar experience and new charges may be applicable. However, in some instances, providers may still charge up to 100 per cent of the activity fee, even if inclement weather caused the cancellation. These costs will be the responsibility of the Client.
5. Booking and Itinerary Variations
The Company strives to ensure all travel experience and general experience bookings maintain an acceptable level of comfort and safety for Participants. In some instances, factors outside of its control may warrant the Company the need to change the itinerary or proposal including, but not limited to, flights, accommodation, transfers, activities, venues and other services to successfully operate the travel experience or general experience. The Company reserves the right to make any necessary changes and substitutions in events such as, but not limited to, adverse weather, affects to safety, supplier operation failure and lack of service availability.
6. Injury or illness
All cancellations may incur a cancellation fee of up to 100 per cent for the activity, which the Participant is unable to attend due to injury or illness. In the case of injury or illness, evidence of relevant injury or illness must be provided to the Company. While the Company will endeavour to seek supplier refunds for the Participant who did not attend an activity, the Client may be charged in full for the activity.
7. Assumption of risk
The Client acknowledges an assumption of risk when supplying a travel experience or general experience to Participants. Risks may arise including, but not limited to dangerous transportation or conditions, dangerous animal interactions, viruses and unsanitary conditions, political unrest, forces of nature, cultural considerations, food and water contamination, plant, insect and fauna threats, unsanitary medical facilities, human criminal activity and other hazardous encounters. The Client approves the travel experience or general experience with the acceptance of these risks and agrees to accept any and all risks. By agreeing to these terms, the Client agrees to not make a claim against the Company and its related bodies corporate for death, injury, emotional trauma, property loss or damage, or other loss as a result of participation in the travel experience or general experience.
8. Behaviour:
Alcoholic beverages may be supplied as part of some meals and activities. It is the responsibility of the Participant to exercise responsible service and consumption of alcohol. The Participant also acknowledges they are of legal drinking age in the country they are visiting. The Participant is to behave at all times in such a manner, which does not bring disrepute to the Company, or breach any applicable laws. Unacceptable behaviour will not be tolerated, and should the Company be advised of, or witness, any such behaviour including, but not limited to, drug-use, binge drinking, violence, property damage, verbal abuse, aggressive behaviour, sexual harassment, or cause disruption, danger or distress to other Participants, suppliers or surrounding patrons, etc., the Company reserves the right to terminate the agreement early, and the Participant and Client will forfeit any costs already paid. The Company will not be held responsible for any form of unacceptable behaviour or consequences ensued by the Participant. The Company will have no obligation to meet any costs or expenses the Participant may incur as a result of the termination of the agreement including, but not limited to, the cost of any repair to property damage and legal fees relating to criminal proceedings.
9. Liability Waiver:
The Client acknowledges each Participant will be required to execute a Liability Waiver prior to undertaking any travel experience (or general experience, where necessary). In the event the Participant is unwilling or unable to execute the Liability Waiver, the Participant will forfeit the experience and the Company may cancel the travel experience or general experience, and the cancellation policy set out in clause 5 will apply.
GIFTS
10. Product substitutions
The Client acknowledges that from time to time, advertised or agreed products may not be available. In this case, a suitable substitute of equivalent value will be included in its place. While the Company will attempt to notify the Client of the substitution, forces out of its control, for example, delivery deadlines or alternative product availability, may require the Company to proceed with a substitute order without the approval of the Client. Full payment will still be required.
11. Liquor Inclusions
Under the NSW Liquor Act 2007, gifts including alcohol may be purchased with the following conditions:
- By purchasing gifts with alcohol, The Client or its representative acknowledges they are 18 years or over and accepts it is a serious offence to purchase or supply alcohol on behalf of minors under 18 years of age. It is the responsibility of the Client’s representative to confirm all liquor Recipients are of legal age. All liability will be attributed to the Client
- Liquor is limited to a maximum of two litres per gift and must include other items, namely food or flowers, as part of the gift to comply with NSW liquor laws, i.e. alcohol cannot be sold individually or without food
- The items must be presented in such a way as to be considered a gift
- Liquor must be purchased from a retail outlet
- Gifts must be delivered between 0700 and 1900
- No authority to leave is available for gifts including liquor. Gifts must be delivered to the recipient with a signature required
12. Packaging
The Client acknowledges that packaging substitutes may be required due to stock levels, discontinued lines or unforeseen circumstances. In this case, packaging will be replaced with a suitable alternative. While the Company will attempt to notify the Client of the substitution, forces out of its control, for example, delivery deadlines or alternative product availability, may require the Company to proceed with a substitute order without the approval of the Client. Full payment will still be required.
13. Creative
The Client acknowledges all creative assets created for merchandise, packaging or other collateral will require approval in writing prior to production to avoid any errors. It is the responsibility of the Client or its representative to ensure all internal approvals have been obtained before approving assets with the Company. Any changes to packaging, which involves customisation will need to be redesigned or reproduced and may incur additional fees.
14. Payments and pricing
The Client acknowledges that no items will be shipped until full payment is made. Accepted payment methods include bank transfer (via invoice) and credit card payments. The Company uses third parties such as, but not limited to, Shopify Pay and PayPal to process credit card payments. By using credit cards, you are bound by these third party security features, terms and policies. The Client also acknowledges the Company may purchase excess order quantities of items to allow for damaged goods and may retain samples of the bulk order for cataloguing reference and that these items may not be returned or refunded to the Client.
15. Gift returns and cancellations
The Client acknowledges that once an order commences, it is considered final sale and cannot be cancelled. Full payment is required, regardless of whether the project proceeds as suppliers would have commenced production. In the event product refunds can be secured, cancelled orders may still incur an agency fee for completed hours, such as, but not limited to, proposals, order preparation, creative services, packaging preparation, product purchasing and kitting preparation. Regarding damaged deliveries, all care is taken to ensure goods are packed securely. In the event the Company is found to be at fault for items arriving faulty or damaged (with supplied photographic evidence), the Company will replace these items with the same or a similar item (pending availability), exchange the item or refund the item dependent on the circumstances. The Company will refund or exchange the damaged or faulty item to equal value (less any logistical and administration fees required to process the exchange). Any return requests must be made in writing to the Company within seven (7) days of receipt. The Client acknowledges that once goods are passed to the logistics providers for delivery, it is no longer liable for any damage caused in transit. The purchase of additional insurance and damage cover is recommended.
16. Deliveries
The Client acknowledges that all supplied address details for Recipients are current and correct. In the case they are incorrect, redelivery fees will apply and will be sent to the Client for payment before redelivery occurs. All deliveries require a street address and no PO Boxes will be accepted. All packages require a Recipient’s signature unless otherwise confirmed by the Client (excluding gifts with liquor, which require a signature). If the Client approves an ‘Authority to Leave’ for its Recipients, the Company and its logistics providers are not liable for any misplaced packages. Once an order is dispatched with a logistics provider, no re-directions are available during transit. The Company uses various shipping partners and third party providers. The Company will use the lowest cost service unless otherwise specified. The Client acknowledges that once the courier has picked up the order, it is no longer the responsibility of the Company. Tracking details will be supplied for the Client or Recipients to follow up with the logistics provider direct. Where issues persist, the Company will do its utmost to assist with any logistics queries where possible. Any undeliverable items that may be returned to the Company will require an additional re-delivery fee and this will be sent to the Client for payment. Recipients may experience logistical delays during peak times or for circumstances out of the Company’s control. Deliveries will not take place on NSW public holidays and may be delayed further if there is a public holiday in the Recipient’s destination state. The Client acknowledges that the quality and condition of perishable goods in transit cannot be guaranteed and the Company will not be held liable in any way.
CREATIVE
17. Rights and guarantees
The Client unconditionally guarantees it possesses all rights, permissions and consent to any supplied assets it shares with the Company and that the provision of Creative Services will not infringe any trademark, copyright, or other right of any other party. The Client also agrees information supplied to the Company is accurate. The Client acknowledges the Company is an external supplier of creative services to the Client, not a partner or joint venture participant. The Company retains its rights to use its own agents, assistants and sub-contractors to complete projects as required.
18. Briefing
The Client is responsible for supplying a detailed written brief for all creative service requests. The Client will supply brand guidelines and the Company will design, create or produce projects to brief. The Client acknowledges and accepts the importance of its involvement in the process of creative services; availability to attend meetings, feedback and approve work in a timely manner is critical to the outcome.
19. Approval
It is the responsibility of the Client to carefully review final assets before despatch. Once approved and issued, the Company has completed the project and any further amends will likely incur additional fees. Once approved and despatched, all creative becomes the responsibility of the client and the Company will not be held liable in any way.
20. Delivery
Both parties shall agree to delivery timelines in advance of the project. The Client acknowledges any delay to timelines may result in reduced capacity to resume work at a later date.
GENERAL; APPLICABLE TO ALL SERVICES
21. Deposit and Final Payment
The Client will be required to pay a deposit or deposits of approximately 50 per cent of the total quoted cost at the time of engaging the Company’s services. Unless otherwise stated in writing by the Company, a further 30 per cent sum will be due and payable within one (1) month of the contract date, with the remaining 20 per cent sum due and payable within the subsequent one (1) month of the second payment period. Once approved, all deposits are non-refundable for changes of mind or cancellations by the Client (subject to your rights under the Australian Consumer Law). Some airfares, services or product purchases must be paid in full at the time of booking or to commence the fulfilment process with some suppliers requiring earlier payment than the aforementioned fee schedule. The Company will notify the Client as it is made aware. Immediate payment is required to reserve any bookings or products (i.e. for gifts) as advised by suppliers and in these instances, the Company will not make any purchases on behalf of the Client without full payment, which could result in no booking or product reservation. Failure to pay the full project amount in advance of the scheduled execution date (i.e. departure date for travel, gift delivery date, or event date) will cease the service provided by the Company and the previously agreed scope of work may not proceed.
22. Prices:
All prices are subject to availability and can be withdrawn or varied without notice, with prices quoted subject to change. Price changes may occur when the agreed scope of work is adjusted and by reason of matters outside the Company’s control, which increase the cost of the product or service. Such factors include adverse currency fluctuations, fuel surcharges, taxes, transportation increases and other service provider increases. Pricing is developed based on the initial scope of work as outlined by the Client. Travel and general experience, gift and creative services inclusions will be clearly outlined in the Company’s supplied quote to the Client. Any requests by the Client to increase the offering once the Company’s service commences and original pricing is agreed, will likely result in a fee increase. In the case of travel, the Client acknowledges group travel prices are often greater than the Recommended Retail Price (RRP) for individuals and comparative retail quotes are not indicative of actual charges incurred by the Company. In addition to agency service fees, Company overheads related to carrying out the service including, but not limited to, specialised Company insurance, member body fees and technical platforms, will be included in the charge as part of the Company’s price. Any supplier commissions, rebates or mark-ups to account for the cost of doing business will also be included in the Company’s price. By agreeing to the quotation, the Client agrees to pay the amount in full, with no refunds owed following the end date of the travel experience, general experience, gift service or creative service. Pricing for creative, gifting, executive lifestyle management, event management, client relations services or services outside of travel experiences or general experiences, will be customised and potentially determined against the Company’s rate card based on scope of work.
23. Amendment and Cancellation Fees:
Subject to the Client’s refund and remedy rights under the Australian Consumer Law, the following change and cancellation fees apply to all travel and general experiences, gifts and creative services. Cancelled projects, orders, bookings or absence may incur supplier fees, which can be up to 100 per cent of the cost of the booking or order, irrespective of whether the activity itself has commenced. Regarding travel experiences, supplier fees may also apply where a booking is changed and when tickets or documents are re-issued. Where the Company incurs any liability for a supplier cancellation fee for any booking or order, which the Client amends or cancels, the Client agrees to indemnify the Company for the amount of that fee. Where the Client seeks a refund for a cancelled booking for which payment has been made to the supplier, the Company will not provide a refund to the Client until the Company receives the funds from the supplier. The Company will endeavour to secure the maximum possible refund from the supplier on behalf of the Client. The Client acknowledges the Company may cancel a travel experience, general experience, gift order or creative service at any time prior to departure or commencement if, due to a pandemic, biosecurity concerns, terrorism, natural disasters, political instability or other external events makes it unviable to operate the planned activity. If activity is cancelled, the Company will attempt to reschedule the travel experience, general experience, gift activity or creative service and refund or repurpose any returned supplier costs as directed by the Contracted Company. The Company will not be responsible for any incidental expenses incurred by the Client, Participants or Recipients as a result of the cancelled activity.
24. Agency:
The Company acts as an agent for, and sells various travel experience, general experience, gifts and creative services related products on behalf of numerous transport, accommodation, activity, and other service providers, creative producers and product suppliers. These service providers include vehicle, rail, aviation, marine operators, food and beverage manufacturers, product manufacturers, designers, illustrators, as well as all of the Company’s wholesalers and suppliers. These operators, suppliers, wholesalers and manufacturers are not agents, employees or servants of the Company. Any services the Company provides to the Client, Participants and Recipients are collateral to that agency relationship. Our obligation to the Client is to (and the Client expressly authorises the Company to) make travel and experience bookings, purchase and package gifts and produce creative assets on the Client’s behalf and to arrange relevant contracts between the Client and travel/experience service providers, gift providers and creative services providers. The Company exercises care in the selection of reputable service and product providers, but the Company is not itself a provider of travel and activity services or a product manufacturer and has no control over, or liability for, the products and services provided by third parties. All bookings and purchases are made on the Client’s behalf subject to the terms and conditions of the country in which they operate, including conditions of carriage and limitations of liability, imposed by these service providers. The Company can provide the Client with copies of the relevant service provider terms and conditions on request. The Client’s legal rights in connection with the provision of travel and experience services, gift inclusions (products) and creative services are against the specific provider and, except to the extent a problem is caused by fault on the Company’s part, are not against the Company. Specifically, if for any reason (excluding fault on the Company’s part) any travel and experience, gift or creative service provider is unable to provide the services for which the Client has contracted, the Client’s rights are against that provider and not against the Company. The Company is not responsible for any conduct by third parties, whether intentional, criminal, grossly negligent or otherwise. Any complaints relating to a service provider should be raised to the Company within seven (7) days of the incident. The Company will connect the Client with the service provider to proceed further. The Client also acknowledges and accepts, they will not request the Company to purchase gifts, produce creative or arrange any experience, service or transportation to or a venue for an experience or service which, may be deemed inappropriate.
25. Compliance
It is the responsibility of the Client’s representatives to ensure internal compliance at all times. The Company will follow the instruction of the Client’s representative, but is not responsible for any partnerships, collaborations, negligence, criminal activity, fringe benefits tax considerations, etc. and, should they require it, the Client must seek their own independent legal advice in this regard.
26. Liability:
To the extent permitted by law, neither the Company nor any of its related bodies corporate, directors, employees or agents accept any liability in contract, tort or otherwise for any injury, death, damage, loss (including consequential and financial loss), delay, additional expense or inconvenience caused directly or indirectly by the acts, omissions or default, whether negligent or otherwise, of third party providers over whom we have no direct control, force majeure or any other event, which is beyond our control or which is not preventable by reasonable diligence on our part. Under circumstances where our liability cannot be excluded and where liability may be lawfully limited, such liability is limited to the remedies required of us under applicable law (including the Australian Consumer Law). This liability clause is subject to your rights under the Australian Consumer Law and nothing in these terms and conditions is intended to limit any rights you may have under the Competition and Consumer Act 2010 (Cth).
27. Privacy Policy:
The Company is committed to protecting the Client, Participant’s and Recipient’s personal information and agrees to handle personal information in accordance with the Company’s Privacy Policy. The Client agrees that in certain circumstances (such as, where delivering gifts to Recipients and requesting to book international travel for the Client and Participants), the Company is permitted to disclose personal information, such as name, address, contact number/email and detailed passport information (where applicable), to local and international third parties required to execute the activity. Such third parties may include the international travel service and experience providers (e.g. airlines, accommodation, transport, logistics or service providers) with whom the Client makes a booking, requests an order or engages services. These travel and general service providers will in most cases receive personal information in the country in which they will provide the services to the Client or in which their business is based. The Company may also disclose personal information to its international or local related entities and to service providers who perform services for the Company within and outside of Australia. Generally, the Company will only disclose personal information to these persons in connection with facilitation of the Client and Participant’s travel or general experience, Recipient’s gift purchase or creative service and/or to enable the performance of administrative and technical services by them on the Company’s behalf. Where the Company discloses personal information to any person (including any international recipients), the Client and Participant agrees that it will not be required to ensure that person’s compliance with Australian privacy laws or otherwise be accountable for how they handle personal information. When used above, “disclose” includes to transfer, share, send, or otherwise make available or accessible to another person or entity. The Company may also disclose personal information to other trip Participants, print hard copies for reference and store personal details on its computers, servers and in the cloud via third party software providers, and the Client, Participant and Recipient acknowledge that while all care will be taken to prevent misuse of data, security may be compromised. The Company may also use supplied contact details of the Client, Participant or Recipient for communication regarding a project, its products or services. The Client acknowledges the Company’s website may also use cookies, which the Client, Participant and Recipient can disable via their personal internet preferences. Any featured external links do not constitute the Company’s endorsement of these websites or companies and the Client, Participants and Recipients accept they will be subject to the external websites’ policies and practices, and the Company accepts no liability for any misuse of personal information or data.
28. Advice
Any and all advice provided to the Client by the Company is general only. The Client’s representatives agree to undertake the appropriate research, seek the relevant internal approvals and seek legal advice before publishing work or proceeding with activity the agency has helped to facilitate or produce. The agency will not be held responsible or liable in any way. In the case of travel and general experiences, all briefing documents supplied to Participants are for general advice purposes only. It is the responsibility of the Participant to ensure they familiarise themselves with, but not limited to, any flight carrier requirements, relevant travel warnings, consular details, emergency contacts and procedures, authority requirements, safety considerations, etc.
29. Use of Brands, Image and Other Material for Marketing purposes:
The Client grants to the Company a transferrable, royalty-free right to use its brand, logo, name, image, likeness, quotes, sounds, biographical information, program results, Company’s content capture and any user-generated content (produced or supplied by Client employees, Participants or Recipients) in perpetuity and in any medium for the purpose of promoting the travel experience, general experience, gift service or creative service, publishing results and promoting the Company’s and suppliers’ businesses and their products or services.
30. Copyright
The Client acknowledges and accepts, the Company owns all intellectual property relating to the travel experience, general experience, gift service and creative service including, but not limited to, proposals and pitches, sample or actual itineraries, concepts, destination ideas, experience ideas, gift ideas, creative assets, website and social content in all mediums (image, video, audio, etc.). Should the Client to not proceed with the Company following a verbal discussion or review of a written proposal, the Client is not permitted to use the Company’s intellectual property to continue activity using internal resources or share the Company’s intellectual property with other travel or general experience providers, gift providers, creative providers, agencies or other companies for the purposes of obtaining quotes, sharing competitor data or use the intellectual property to continue the activity at the initial time of engagement or in the future. Should the Company’s intellectual property be used by the Client, the Client will be in breach of its agreement to engage with the Company. Should competitive prices be obtained for the exact same service by a similar, local agency, the Company reserves the right to re-quote and submit a revised proposal to the Client for consideration, once proof of the quotation is provided in writing.
31. Confidentiality
The Client acknowledges and accepts all matters relating to any activity produced by or discussed with the Company must remain completely confidential between the Client and the Company. This includes, but is not limited to, concepts, proposals, documents and pricing. Any change to the agreement must be agreed by both parties in writing.
32. Governing Law:
If any dispute arises between the Client and the Company, the laws of Australia will apply. The Client irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Australia and waives any right it may have to object to an action being brought in those courts.
33. Acknowledgement:
The Client acknowledges that the Client’s representative is 18 years of age or older and the representative understands and agrees with the above Booking Terms and Conditions and the Company’s Privacy Policy.