1 Definitions and Interpretation
1.1 In this Permit unless the context requires otherwise:
“Claim” means any claim, notice, demand, action, proceeding, litigation, investigation or judgment, whether based in contract, tort, statute or otherwise.
“Fee” means the amount of Australian dollars stated in the Particulars excluding GST;
“GST” means the goods and services tax as provided for by the GST Law.
“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“GST Law” means the GST Act and any associated legislation including without limitation delegated legislation. Any expression used that is defined in the GST Law has that defined meaning where the context permits.
“Market” means the Queen Victoria Market being the land bounded by Elizabeth, Victoria, Peel, Franklin, Queen and Therry Streets, Melbourne.
“Permit” means the Particulars, the Conditions and any schedules or annexures thereto;
“Permit Holder” means the person described in the Particulars and includes all employees, contractors, agents, representatives, associates and invitees of the Permit Holder;
“Permit Holder’s Account” means the account so described in the Particulars;
“Permit Holder’s Nominated Contact” means the person so described in the Particulars or such other person as is nominated in writing by the Permit Holder;
“Permit Holder Property” means all equipment, advertising material, props, chattels and other property brought onto the Site by the Permit Holder or the Permit Holder’s employees, contractors or agents.
“Permit Period” means the dates and times stated in the Particulars;
“QVM’s Nominated Contact” means the person described in the Particulars or the person or persons from time to time holding the office or position described in the Particulars;
“QVM Property” means all equipment, furniture, chattels and other property on the Site belonging to QVM and the lessees and licensees of QVM.
“Rules” means the rules and regulations prescribed from time to time by QVM acting reasonably and as notified in writing to the Permit Holder in relation to the use and occupation of the Site;
“Security Deposit” means the amount of Australian dollars stated in the Particulars excluding GST;
“Site” means the site described in the Particulars.
1.2 If the Permit Holder includes two or more persons each of them is liable for the obligations individually with each other Permit Holder.
1.3 This Permit is personal to the Permit Holder and may not be assigned.
2 Limits of Permit
2.1 The purpose of the permit is for those activities and location described in the particulars and no other.
2.2 Should the Permit Holder, with or without consent of QVM, continue in occupation of any part of the Site, after the termination of this Permit, these conditions will continue to apply.
3 FEES AND SECURITY DEPOSIT
3.1 This Permit is subject to and conditional upon the Permit Holder paying QVM the Fee and the Security Deposit prior to the commencement of the Permit Period by way of direct debit from the Permit Holder’s Account or as otherwise agreed.
3.2 Security Deposit
3.2.1 QVM may use the Security Deposit to make good the cost of remedying breaches of the Permit Holder’s obligations under this Permit.
3.2.2 After this Permit has terminated, QVM must refund the unused part of the Security Deposit within 14 days of the Permit Holder’s written demand.
3.3 Bank Guarantee
3.3.1 If QVM agrees, the Permit Holder must give QVM an unconditional and irrevocable guarantee in place of the Security Deposit. The guarantee must be issued by an authorised deposit taking institution as defined by the Banking Act 1959 (Cth), and must be on such terms as QVM may require.
3.3.2 QVM may call upon the bank guarantee to make good the cost of remedying breaches of the Permit Holder’s obligations under this Permit.
3.3.3 After this Permit is terminated, and if the bank guarantee has not been called upon, QVM must return the bank guarantee within 14 days of the Permit Holder’s written demand.
4 Obligations of Permit Holder
4.1 The Permit Holder must at its own expense comply with all laws, regulations, rules and by-laws relating to the Location, all Rules and reasonable directions given by or on behalf of QVM in relation to the Permit Holder’s use of the Site. The Permit Holder must also at its own expense obtain all other permits, consents or authorities required by law for the activities authorised by this Permit.
4.2 The Permit Holder must not:
4.2.1 do anything at the Site or the Market that is or may be dangerous, annoying or offensive or that may interfere with or cause injury to other persons; or
4.2.2 do or permit anything to be done which is or may be a nuisance or annoyance to QVM, QVM’s invitees and lessees of the Market or parts of the Site, or the public;
4.2.3 do anything or permit anything to be done which in the opinion of QVM may harm or may tend to harm the business or reputation of QVM or the Site or reflect unfavourably on QVM, the Site or other lessees or occupants of the Site;
4.2.4 damage, alter or remove from the Site any QVM Property;
4.2.5 use any firearm, pyrotechnic or loud sound effects or use any sound amplifying system on the Site likely to cause annoyance or nuisance without the prior written consent of QVM;
4.2.6 interfere with or obstruct the common areas of the Market;
4.2.7 erect signs or advertising material in the Site without the prior written consent of QVM; or
4.2.8 use any electricity, except electricity separately metered and paid for by the Permit Holder, without the prior written consent of QVM.
4.3 At the termination of this Permit, the Permit Holder must:
4.3.1 promptly repair any damage to the Site or the Market caused or contributed to by the Permit Holder; and
4.3.2 remove all Permit Holder Property from the Site, including any signs, notices or advertisements placed in or near the Site.
4.4 Any Permit Holder Property left on the Site seven (7) days after the termination this Permit may be dealt with or disposed of by QVM as QVM deems appropriate. Any costs QVM incurs in removing any of the Permit Holder’s must be reimbursed by the Permit Holder to the QVM on demand.
4.5 Unless expressly authorised by QVM, the Permit Holder must not do anything or permit anything to be done which in the opinion of QVM may harm or may tend to harm the business or reputation of QVM or reflect unfavourably on QVM, the Market or other lessees or occupants of the Market.
5 RELEASE AND INDEMNITY
5.1 The Permit Holder agrees that it:
5.1.1 occupies and uses the Site at its own risk; and
5.1.2 has inspected the Site and is of the opinion that the Site is safe and suitable for the activities of the Permit Holder.
5.2 The Permit Holder releases QVM from:
5.2.1 all claims and demands resulting from any accident, damage, death or injury occurring at the Site or any other area used by the Permit Holder in connection with this Permit; and
5.2.2 all loss, cost, damage, liability or other detriment (whether direct or consequential) suffered or incurred by the Permit Holder;
as a direct or indirect result of the Permit Holder’s occupation and use of the Site.
5.3 The Permit Holder indemnifies and agrees to keep indemnified QVM against all actions, claims, demands, losses, damages, costs and expenses (whether direct or consequential) for which any of QVM is or may be or become liable concerning:
5.3.1 the default of the Permit Holder under this Permit;
5.3.2 the Permit Holder’s use of the Site or any other area used by the Permit Holder in connection with this Permit; or
5.3.3 loss, damage or injury to QVM Property or persons caused or contributed by the Permit Holder’s act, omission, default or negligence.
5.4 References in this clause to the Permit Holder and QVM include their respective officers, employees, agents, contractors, sub-contractors and invitees.
6.1 Permit Holder must not do anything in the Site or otherwise which:
6.1.1 may cause any insurance policy (taken out under this Permit or otherwise) to become void or voidable; or
6.1.2 may cause any claim on any insurance policy (taken out under this Permit or otherwise) being rejected or a premium to be increased.
6.2 If the Permit Holder causes an increase in any premium payable by QVM for any insurance effected by QVM for the Land or the fixtures or improvements on the Land (whether taken out under this Permit or otherwise), the Permit Holder must pay QVM, on request, the increase in the premium.
6.3 The Permit Holder must comply with the requirements of any insurer under any insurance policy for the Site or the fixtures or improvements on the Site (whether taken out under this Permit or otherwise).
6.4 The Permit Holder must take out and maintain insurance for:
6.4.1 public liability naming QVM and its employees, agents and contractors as an indemnified party for the amount set out in the Particulars in respect of any single occurrence. This policy must indemnify QVM against all Claims arising from any act, omission or neglect by the Permit Holder or any of the Permit Holder Representatives;
6.4.2 an employers’ liability and workers’ compensation policy which covers any damage, loss or liability suffered or incurred by any person engaged by the Permit Holder arising:
(a) by virtue of any statute relating to workers’ or accident compensation or employers’ liability; or
(b) at common law;
6.4.3 the Permit Holder Property against loss, damage or destruction by any cause,
6.4.4 and the Permit Holder must produce to QVM copies of all these insurance policies and evidence that they are in force, within 2 days of QVM requesting copies to be produced.
6.5 In the event QVM holds a policy for group public liability insurance and the Permit Holder’s acts or omissions increase the premium payable by QVM, the Permit Holder shall reimburse QVM on demand for any such increase in premium.
6.6 All insurance policies must:
6.6.1 be taken out with an insurer approved by QVM (which approval may not be unreasonably withheld); and
6.6.2 have noted on them the respective interests of QVM and the Permit Holder, and if required by QVM, any mortgagee.
7 Termination of Permit
QVM, through QVM’s Nominated Contact, may terminate this Permit without notice if the Permit Holder:
7.1 commits a breach which in the reasonable opinion of QVM or its authorised staff is deliberate, fraudulent, grossly negligent, or amounts to serious misconduct or may create (or has created) serious risk to any person or property; or
7.2 commits any other breach and fails to remedy that breach within a reasonable time after having received notice from QVM requiring it to do so.
8.1 Any consideration specified as payable by one party to the other party under this Permit is expressed as a GST exclusive amount.
8.2 In addition to any consideration payable by one party to the other party under this Permit, the party liable to pay the consideration must pay to the other party a sum equivalent to the GST payable, if any, by the party liable to remit GST in respect of that consideration, at the same time and in the same manner as the consideration is payable.
8.3 A party’s right to payment under this clause is subject to a tax invoice being delivered to the party liable to pay for the supply.
9.1 QVM may serve a notice on the Permit Holder by giving it to the Permit Holder personally; or leaving it at or posting it to, or faxing it to the Permit Holder’s registered office or the Permit Holder’s business address as last known to QVM.
9.2 The Permit Holder may serve a notice on QVM by leaving it at, or posting it to, or faxing it to QVM’s office at 513 Elizabeth Street, Melbourne (Fax: 9328 2710); or any other address that QVM nominates.