Recitals
A. The Client is a body corporate or company or business or individual or any prescribed entity under written law that is desirous of procuring the services of the Service Provider subject to the terms herein and with the particulars of the Services to be rendered by the Service Provider upon the terms of payment prescribed in the Quotation.
B. The Service Provider is a company that is in the business of providing and specialising in services pertaining to public performances styled and theatrical representative of, but not limited to the unique use of fire works, light works, object manipulation works, bubble art works, acrobatic works, BMX works and cyrwheel works, and further, to assist the Client in facilitating the procurement of third parties services, such as aerial works (if any) [collectively, “the Services” and subject to articulation in the Quotation]. At all material times, the Service Provider warrants they are lawfully operating with current and up-to-date licenses and permits from statutory bodies, and both, state and federal governments (as applicable).
C. The Client wishes to engage the Service Provider to assist the Client with the objective of providing the Services in aid of the stated purpose in the Quotation [“the Performance”]. The scope and particulars of the services for the Performance are set out in Part 1 of the Quotation.
D. With the execution of this Agreement by the Client, the Client confirms undertakes to pay the Service Provider in accordance with the payment terms and schedules, as set out in Part 2 or Part 3 of the Quotation overleaf (as may be applicable), in furtherance of the Performance.
Based on and subject to the above matters in the Recitals, the Service Provider and the Client [collectively known as the “Parties”] agree to bind each other with the terms and conditions of this Agreement. This Agreement contains the Operative Provisions listed and set out below for compliance between the Parties herein, as follows:-
DEFINITIONS
In addition to matters with specific definitions in this Agreement, the following are additional definitions of words that will have the following specific meanings in this Agreement.
‘Commencement Date’ mean the date of the Quotation.
‘Conditions’ mean the provisions contained herein and in Part 1, Part 2 and Part 3 of the Quotation shall be read together in their entirety.
‘comply with’ means the observation of and performance of any or all Clauses in this Agreement or further terms and conditions in the Quotation by the Parties.
‘Parties’ mean the Service Provider, the Client and where the context permits include their successors in title and permitted assigns, and ‘party’ means either or any one of them.
‘Quotation’ means the quotation appearing on the overleaf of this Agreement (if physically delivered to the Client) or page(s) preceding this Agreement (if delivered by electronic means) and consists of all pages of the Quotation read together and with this Agreement.
‘Services’ means all matters considered the services to be rendered at the request and for the benefit of the Client by the Service Provider are such services set out in Part 1 of the Quotation.
‘Term’ means the duration of the work related to and towards the Performance, as set out in Part 1 of the Quotation from the Commencement Date and subsequently unless and until this Agreement is terminated by either party in accordance with Clause 9 of this Agreement.
‘Variation’ means the alteration or modification of the design, quality or quantity of the Services set out in Part 1 of the Quotation and subject to Clause 7 of this Agreement.
OPERATIVE PROVISIONS
In consideration of the mutual covenants herein contained and the Parties agreeing to perform and observe the several undertakings, covenants, warranties and representations hereinafter contained IT IS HEREBY AGREED as follows:-
1. Appointment
1.1 The Client engages the Service Provider subject to Recital C and Recital D above subject to the terms and conditions of this Agreement.
2. Conditions
2.1 The Client’s obligations:-
2.1.1 The Client shall pay to the Service Provider the agreed fee quote as set out in Part 2 or Part 3 of the Quotation subject to invoicing. More importantly, the Client shall abide by all terms in Part 1 of the Quotation, in particular, such terms pertaining to the safety aspects of the Services to be provided to the Client.
2.1.2 The Client shall further reimburse the Service Provider for all Out-of-Pocket Expenses, as set out in Part 2 or Part 3 of the Quotation, incurred on the Client’s behalf for the full extent and duration of the Quotation and this Agreement.
2.1.3 Unless otherwise agreed by the parties in writing, the Client shall at its own expense supply the Service Provider with all necessary documents or other materials, and all necessary data or other information relating to the required services or as reasonably required by the Client, within sufficient time to enable the Service Provider to properly execute their duties in accordance with the Conditions.
2.1.4 The Client shall provide proper and clear instructions to the Service Provider in respect of its requirements in relation to the provision of the consultancy services or in connection with this Agreement.
2.1.5 The Client shall afford the Service Provider such reasonably required access to the Client’s premises, information or records and other materials relevant to the Service Provider’s discharge of their obligations under this Agreement.
2.1.6 In the event the Client is unable to comply with Clause 2.1.4 and Clause 2.1.5 of this Agreement within the time frame specified in the Service Provider’s request in writing, the Service Provider will give notice in writing that it will proceed on the earlier instructions given or the matters as they stand, as requested in the said clauses respectively.
2.1.7 The Client bears the responsibility to ensure the presence of a licensed, fire and safety marshal, first aid personnel and ambulance services for the duration of the performance of the Services. In the event the Client is unable to provide as such, the Service Provider is at liberty to engage such a person and the Client shall be liable for the fees and expenses of the said engagement.
2.1.8 The Client is deemed to have full knowledge of the hazardous circumstances of the Performance Space and its ancillary areas and shall notify such danger to the Service Provider. The Performance Space and its ancillary areas shall be free from flammable and combustible materials or material susceptible to flammability or combustion. The Client also bears the responsibility to place the employees and associates of the Service Provider at a safe distance away from the telephone and electrical wiring systems native and inherent to the works, Performance Space and ancillary areas for the delivery and performance of the Services.
2.1.9 Any injury and damage arising from the non-compliance of the Client shall be invoiced to the Client accordingly. The Client agrees and consents to hold harmless and indemnify the Service Provider from all acts that may give rise to damage, injury or loss of life, and that the Service Provider (with consent of the Third Party provider) is authorised to collect the Third Part provider’s fees for payment to the said Third Party. Such an arrangement will not restrain the Third Party from claiming for its fees directly from the Client, in the event of non-payment.
2.2 The Service Provider’s obligations:-
2.2.1 During the Term the Service Provider shall unless prevented by ill-health of the designated individual in the Service Provider devote such of its time attention and abilities to the Performance, as is necessary for the proper exercise of its duties for the duration of the Performance, as set out Part 1 and Part 2 of the Quotation.
2.2.2 The Service Provider shall advise and assist the Client as required of all branches of its business including in particular but without prejudice to the above and subject to the extent of the Performance.
2.2.3 The Service Provider shall afford to the Client all reasonable cooperation in all matters relating to the performance of the Service Provider’s obligations under this Agreement. In particular, and without limitation to the foregoing, the Service Provider shall (i) promptly and fully respond to all communications of the Client’s relating to the provision of the services by the Service Provider and to liaise with the representatives of the Client on matters relevant to this Agreement, and (ii) conduct their affairs at all times in a proper and reputable manner observing all legal requirements in relation to his business.
2.2.4 The Service Provider shall during the Term, (i) discharge their duties and provide the consultancy services under this Agreement with due care, skill and ability, (ii) use all reasonable endeavours to be available at all times for meetings and consultations on reasonable notice as required by the Client in connection with this Agreement, and (iii) not have any authority or hold themselves as having any authority to bind the Client or to incur any expenditure for and on behalf of the Client in relation to non-parties to this Agreement.
3. Status of the Service Provider
3.1 During the Term of this Agreement, the Service Provider shall be an independent contractor and not the servant of the Client.
3.2 In such capacity the Service Provider shall bear exclusive responsibility for the payment of its obligations towards any lawful deductions and shall not bear or undertake any such responsibility on behalf of the Client, in relation to discharge of obligations to pay any levy or tax imposed under any law or jurisdiction, arising out of remuneration for work performed under this Agreement.
3.3 The Service Provider shall not be subject to directions from the Client as to the manner in which they shall perform their work, save and except to any peculiar or special facts known only to the Client, and not considered to be directions based on information made available in the public domain or within the commonly accepted conventions of the public relations industry.
3.3.1 In the event, of the disclosure by the Client of any such peculiar or special facts in advance by the Client or upon any anticipatory request by the Service Provider, the Client will, to the best of the knowledge and belief, provide such information to the Service Provider to allow the Service Provider to carry out its duties and assignments within the Term of the Performance.
3.3.2 In the event, of a non-disclosure by the Client of any such peculiar or special facts in advance by the Client or upon any anticipatory request by the Service Provider, and such non-disclosure causes disruption to the duties and assignments of the Service Provider within the Term of the Performance, the Client will allow for remedial action to be taken, to the best of the knowledge and belief, by the Service Provider. Upon and in the event, such remedial action is to be taken by the Service Provider, the Service Provider may in its discretion reserve the right to enforce the Clause 7.2 of this Agreement.
4. Payment
4.1 The Service Provider shall submit an invoice following the terms in Part 2 or Part 3 of the Quotation upon the completion of the Services rendered. The said invoice(s) shall set out the complete details and particulars for the perusal of the Client and shall be due and payable upon issuance to the Client.
4.2 Any failure by the Service Provider to submit an invoice to the Client in accordance with the timelines in Part 2 of the Quotation, shall not be deemed to be a waiver of its contractual entitlement for payment under this Agreement.
4.3 Additional invoices beyond those set out in the Quotation shall be issued as and when further amounts are ascertained by the Service Provider to be payable by the Client pursuant to Clause 7.2 of this Agreement and Part 3 of the Quotation.
4.4 The amount stated as due in the invoices shall, subject to any Agreement between the parties as to Part 2 or Part 3 of the Quotation, be the total value of the work properly executed by the Service Provider.
4.5 Save for clerical, computational or typographical error or errors of a similar nature, the Client shall not be entitled to revise or correct any invoices issued by the Service Provider under this Agreement.
4.6 Without prejudice to the Service Provider’s right to determine its own employment, if the Client fails or neglects to pay the Service Provider the amount due as shown in the invoices, and continue such default 14 days from the receipt of a written notice delivered by hand or registered post from the Service Provider stating that if payment is not made within the said 14 days, the Service Provider may by a further written notice delivered on the 15th day by hand or by registered post, forthwith suspend the execution of the services until such time payment is made, provided always that such notice shall not be given unreasonably or vexatiously.
4.7 If the Client informs the Service Provider in writing, by way of notice delivered by hand or registered post, that they intend to suspend the execution of the Performance for whatever reasons, the Service Provider shall forthwith suspend the execution of the services and continue such suspension until the resumption of the said supervision. The effect of this clause does not terminate the Service Provider’s absolute right to continue or resume services for the remainder of the Term under this Agreement. In the event, of such a resumption of service by the Service Provider, Clause 7.2 of this Agreement will apply.
4.8 If the Client fails to pay the Service Provider the amount due on any invoice by the Payment Date set out in Part 2 of the Quotation, a late payment charge of 24 per cent per annum shall be payable by the Client on such outstanding amount until the date of full payment is made.
5. Goods and Services Tax [“GST”]
5.1 All sums payable under this Agreement unless otherwise stated are exclusive of GST and other duties or taxes. Any GST or other duties or taxes payable in respect of each sums shall be payable in addition to them by the Client and these sums shall be reflected over and above the amounts set out in Part 2 or Part 3 of the Quotation.
6. Confidential Information
6.1 In this clause ‘Confidential Information’ means all confidential information relating to the organisation, finances, processes, specifications, methods, designs, formulae, technology and business activities, of and concerning the Parties and their business and suppliers.
6.2 All records in any medium (whether written, computer readable or otherwise) including accounts, documents, drawings and other private notes about the parties and all copies and extracts of them made or acquired by the parties in the course of the consultancy shall be (i) the property of the respective parties, (ii) used for the purposes set out or in relation to the Scope of Services only, (iii) returned to the respective parties on demand at any time, and (iv) returned to the respective parties without demand on the termination of the consultancy.
6.3 The Parties may during but not after the Term divulge or allow to be divulged to any person any Confidential Information to any persons who needs that information for any purpose of the Client and has signed a secrecy undertaking in the form approved by the Service Provider, save in accordance with law.
6.4 Save and except for the employees of the Service Provider shall not permit any non-party to this Agreement to assist them in the provision of the services under this Agreement unless that non-party has signed a secrecy undertaking in the form approved by the Client.
7. Variation
7.1 The Client may issue an order to vary or sanction any variation made by the Service Provider. No variation ordered by the Client or subsequently sanctioned by the Client shall vitiate the Agreement. Pending the valuation of the variation, the Service Provider shall carry out with due diligence and expedition all variation(s) so instructed.
7.2 Where a variation has caused or is likely to cause the Service Provider to incur additional expenses for which it would not be paid under any provisions in this Agreement, the Service Provider may make a claim for such additional expenses provided always that the Service Provider shall give written notice to the Client of its intention to claim for such additional expenses together with an initial estimate of its claim duly supported with all necessary calculations. This clause shall be read with Part 3 of the Quotation.
8. Rights and Liabilities of the Parties to Non-Parties, ie. ‘Vendor’
8.1 With regard to Out-Of-Pocket Expenses in Part 3 of the Quotation, the Client is liable for direct payments to the relevant Vendor if the value of the Vendor’s services exceeds RM1,000-00 on one (1) invoice or the cumulative value invoices issued by the relevant Vendor equals to or exceeds RM3,000-00.
8.2 In such an instance, the Client will issue a letter of authorisation to the Vendor undertaking payment, authorising the Service Provider to be a mere conduit, be fully and absolutely indemnified by the Client against the said Vendor and not be liable to pay for the services of the said Vendor on behalf of the Client.
9. Termination on Default
9.1 Material non-compliance occurs when the Client fails to comply in some or all material respects of this Agreement, such as but not limited to the non-execution of the Quotation. In such an instance, the Service Provider will be allowed to claim for damages on a quantum meruit basis, based upon the rates set out in Part 3 of the Quotation, as applicable.
9.2 The insolvency and/or liquidation of the Client, will terminate this Agreement and allow the Service Provider to claim for all monies due and payable up to the moment of liquidation.
9.3 Loss of qualification occurs when the Client ceases to hold the licence or professional qualification or has its name removed from any register which is or which the Service Provider considers necessary or desirable for the performance of its duties under this Agreement. In such an instance, the Service Provider will be allowed to claim for damages on a quantum meruit basis, based upon the rates set out in Part 3 of the Quotation, as applicable.
9.4 Upon any failure or cessation of the Client to perform, or to comply with, to satisfaction its duties and obligations to the reasonable satisfaction of the Service Provider, the Service Provider may pursue legal action in accordance with law.
10. Miscellaneous Terms
10.1 Delivery up of documents on termination The Client shall upon the termination of his engagement immediately deliver up to the Service Provider all correspondence documents specification papers and property belonging to the Service Provider which are in its possession or under its control.
10.2 Rights Cumulative The effect of all obligations affecting the Client under this Agreement is cumulative and no obligation shall be limited or modified by any other of those obligations unless there is in this Agreement an express limitation or modification.
10.3 Severability If at any time any provision, condition or term stipulated in this Agreement is or becomes illegal, void, invalid, prohibited or unenforceable in any respect, the same shall be ineffective to the extent of such illegality, invalidity, prohibition or unenforceability without invalidating in any manner the remaining provisions thereof.
10.4 Survival of Clauses No Clause shall survive expiry or termination of this Agreement unless expressly provided. Further, this clause shall not be read to terminate any right of the Parties to dispute or submit to adjudication through legal process.
10.5 Binding Effect This Agreement shall be binding on the respective Party’s permitted assigns, successor-in-title and nominees and shall supersede all previous negotiations, representations made by both parties whether orally or in written form.
10.6 Entire Agreement This Agreement incorporated herein constitutes and represents the entire understanding and Agreement between the parties hereto and supersedes any and all prior agreements, whether written or oral, that may exist between the parties regarding the same.
10.7 Time Time whenever mentioned shall be deemed to be treated as the essence of this Agreement.
10.8 Waiver The Service Provider may release or compromise the liability of any of the Client under this Agreement or grant to the Client time or other indulgence without affecting the Client’s liability.
10.9 Costs Each party is to pay its own costs with regard to the preparation of this Agreement. In the event this Agreement is disputed and adjudicated upon by legal process, costs shall be recoverable on a solicitor-client basis.
10.10 Third Party Rights The Parties intend that no term of this Agreement may be enforced by any person who is not a party to this Agreement.
10.11 Notices Any notice or other communication to be given by one party to the other, under or in respect of this Agreement shall be in writing and may be delivered, given or sent by (i) hand or courier, (ii) registered mail or (iii) facsimile transmission, and shall be deemed to have been sufficiently served (a) if it is sent by either party or by either party’s solicitors by registered post addressed to the receiving party or receiving party’s solicitors hereinbefore mentioned, it shall be deemed to have been received upon the expiry of three (3) days of posting of such registered letter provided that the said notice or communication is also sent by facsimile transmission, or (b) if it is delivered by hand, it shall be deemed to have been received at the time of receipt, or (c) if it is transmitted by way of facsimile transmission prior to 5.00 p.m. of a particular business day, it shall be deemed to have been received at the time of transmission; otherwise it shall be deemed received on the next business day. Any change of address by either party shall be communicated to the other in writing.
22. Interpretation
22.1 In this Agreement, unless the context otherwise requires (i) words denoting the singular number include the plural and vice-versa, (ii) words denoting a gender include every gender, (ii) words denoting natural persons include bodies corporate and unincorporated, (iv) reference to Clauses is to clauses to this Agreement and reference to Recitals is to recitals to this Agreement, (v) references to any legislation or to any provision of legislation shall include any modification or re-enactment of that legislation or any legislative provision substituted for, and all regulations and statutory instruments issued under such legislation or provision, (vi) headings to the clauses of this Agreement are inserted for convenience only and shall not affect the construction or interpretation of this Agreement, (vii) where a word or a phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings, (viii) references to any Party to this Agreement or any other Agreement or instrument shall include the Party’s permitted assigns, successor-in-title and nominees, (ix) neither of the Parties herein may assign its rights and obligations in whole nor in part hereunder without the prior written consent of the other Party, (x) references to any Agreement or instrument shall include references to such Agreement or instrument as amended, novated, supplemented, varied or replaced from time to time, (xi) any reference to “the best of the knowledge and belief” of any person or persons means “to the best of the knowledge and belief after due enquiry, where knowledge of a fact would prompt enquiry by a reasonable person” of such person or persons, (xii) the Client shall be responsible for and shall pay all stamp duty and registration fees payable on this Agreement, together with any penalty payable in connection thereto, (xiii) this Agreement sets out the entire Agreement of the Parties and supersedes all prior agreements and understandings relating to its subject matter, and (xiv) any term referred to herein, which is defined in the Companies Act 2016 shall have the meaning ascribed thereto in the said Act.
23. Malaysian Law and Jurisdiction
23.1 This Agreement shall be governed by Malaysian law from time to time in force and each of the Parties herein hereby submits to the jurisdiction of the courts in Malaysia.