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Terms and Conditions of Supply for Sydney Opera House Tourism Products

1.           Term and applicability

1.1.      These terms (Terms and Conditions) apply to the purchase of any Sydney Opera House (SOH) tourism products or services  referred to in the SOH Tourism Sales Manual or quoted to the customer (Customer) at the time of booking (Products).

1.2.      These Terms and Conditions apply to any order made after 10 July 2015 unless updated in accordance with clause 1.3.

1.3.      These Terms and Conditions may be updated by notice from SOH to the Customer from time to time.

2.           Sydney Opera House Obligations

2.1        Subject to availability, SOH will use its reasonable efforts to supply Products ordered by a Customer.

3.           Customer Obligations

3.1        By placing an order for a Product with SOH, the Customer agrees:

(a)         to comply with these Terms and Conditions;

(b)         to comply with any Special Conditions relating to the Product as advised to the Customer in writing at the time of booking;

(c)         where these Terms and Conditions conflict with the Customer’s own terms and conditions, these Terms and Conditions prevail to the extent of any inconsistency;

(d)         that Customer, or any person or entity related to it, will not use the SOH name, image (whether stylised or photographic, in whole or in part, or from any angle), logo, trademark or other intellectual property rights of SOH (SOH Brand) to:

i)       advertise their business;

ii)      distribute any goods or services which use any aspect of the SOH Brand;

iii)    publish or distribute any advertising or promotional material; or

iv)    engage in any activity that suggests a connection or association with SOH beyond the scope of this agreement,

without the prior written consent of SOH;

(e)         that all present and future intellectual property rights in Products and the SOH Tourism  Sales Manual, remain the exclusive property of SOH; and

(f)           to comply with all applicable standards, awards, laws and regulations, including the Sydney Opera House Trust Act 1961 (NSW) and the SOH By-Laws, which includes directions given by our authorised officers to you, your staff, contractors or clients while they are on our premises.

4.       Price

4.1        The rates for each Product (inclusive of GST where applicable) are set out in the SOH Price Lists or may be notified to the Customer by SOH from time to time. Any amended rates will apply to any order made after the date on which SOH sent the relevant notice.

4.2        SOH reserves the right to offer competitive rates through its own website and on-site conversion channels.

5.       Order

5.1        The Customer may order a Product from SOH as follows:

(a)         a “Booking Request” must be made in writing, by email to the contact details set out in the SOH Price Lists or through an online trade portal;

(b)         unless credit has been approved and a letter confirming credit arrangements has been sent to the Customer, the Customer must provide the account name, card number and expiry date details for a valid and up-to-date credit card with an available limit at least equal to the value of the order, which will be used by SOH to apply all fees and charges;

(c)         upon receipt of the Booking Request SOH will send to the Customer by email a “Booking Confirmation”.  The Booking Confirmation is acknowledgement that SOH has received the Customer’s Booking Request and entered it into SOH’s booking system.

6.       Finalisation/Cancellation of bookings

6.1        Any changes to the booking details set out in the Booking Confirmation, including final passenger numbers (pax), date and time, must be confirmed with SOH by the submission in writing of a “Booking Change Request”.  Booking Change Requests must be received by SOH by the relevant deadline set out below:

Product type

Pax number

Deadline for booking changes

Guided Tour Products (including Backstage Tours)

<47

24 hours before the date of delivery of the Product

47+

5 days before the date of delivery of the Product

Tour and Tasting Plate

<6

24 hours before the date of delivery of the Product

6-46

48 hours before the date of delivery of the Product

47+

5 days before the date of delivery of the Product

Package Products,

Ticket only and Taste of Opera

All

30 days before the date of delivery of the Product or immediately upon booking if that booking is made less than 30 days before the date of delivery

6.2        Once the deadlines set out in Clause 6.1 have passed the booking will be considered “Finalised”.  If no Booking Change Request has been received, SOH will assume that final booking details are unchanged from the original Booking Request and will charge the Customer based on those details, in accordance with Clause 7 (Payment).

6.3        SOH will have no obligation to supply Product to any more than the number of pax contained in the Finalised booking.  If, however, SOH does agree to supply a Product to extra pax, the Customer will pay for those extra pax in accordance with Clause 7 (Payment).

6.4        If the Customer cancels a Product in its entirety, the Customer shall be liable to pay the following proportion (if any) of the amount that would otherwise have been owing to SOH as per the Finalised Booking:

Product type

Notice period

Cancellation Charge

All Package Products

>30 days

nil

7-30 days

60%

<7 days

100%

Ticket only product

 

30 days

100%

>30

nil

All Taste of Opera

>60 days

nil

30-60 days

50%

<30 days

100%

Guided Tour Products including Backstage Tours

 

Pax >100

>30

nil

14-30 days

50%

<14 days

100%

Pax 47-100

5 days or more

nil

< 5 days

100%

Pax <47

24 hours or more

nil

< 24 hours

100%

Tour and Tasting Plates

Pax 47+

5 days or more

nil

< 5 days

100%

Pax 6-46

48 hours or more

nil

< 48 hours

100%

Pax <6

24 hours or more

nil

< 24 hours

100%

6.5        For Group Bookings, the total number of pax is the number of pax in a single booking, irrespective of whether the booking is for a single day or across multiple days.

6.6        If SOH has to cancel a Product because of an emergency, industrial action, direction from a governmental authority or any other reason beyond its control, SOH will do one of the following:

(a)   replace the Product with a suitable alternative product;

(b)   reschedule the supply of the Product at a mutually agreeable time; or

(c)   refund the Customer the amount paid by the Customer for the cancelled component of the Product.

6.7        SOH may determine which of the remedies in Clause 6.6 above that it offers to the Customer in its absolute discretion.

7.       Payment

7.1        Customers are responsible for paying any transaction fees applied to payments made to SOH by financial institutions and must gross-up the amounts invoiced to them by SOH to take into account the amount of the applicable transaction fee so that SOH receives the full invoiced Australian dollar amount.  In the event Customer has failed to gross-up or grossed-up by an insufficient amount, SOH will include the shortfall amount in the following invoice to Customer and that amount will remain a debt to SOH until paid by Customer. 

7.2        SOH will not be under any obligation to supply a Product until payment has been made in accordance with this Clause 7 (Payment).

(a)         Payment will be calculated according to the pax numbers detailed in the Finalised booking as per Clause 6 above, or the actual number supplied with a Product as per Clause 6.3, whichever is the greater.

(b)         Unless credit has been approved and Customer has received a letter from SOH confirming credit arrangements, Payment is due at the deadline for Finalisation as set out in Clause 6.1.

7.3        Where payment has not been received by the due date for payment, SOH reserves the right to charge the Customer’s credit card (details of which were provided with the order) with an amount equal to the cost of the order as at the time of finalisation under Clause 6  (Finalisation).

7.4        If credit has not been approved and SOH agrees to supply a Product to extra pax not included in a confirmed order, then either: the Customer will pay for those extra pax at the time of supply or SOH will charge the Customer’s credit card with the relevant amount owing.

7.5        SOH will provide the Customer with a tax invoice on request for the total cost of any Product supplied.

7.6        Disputed charges must be advised in writing within 14 days of the Product being supplied to be eligible for refund. When SOH receives notice of a disputed charge it will determine whether or not any refund is payable to the Customer and make any payment that it has determined is due to the Customer.

8.       Web-based Sales

8.1        Any Customer who are authorised (in writing) by SOH to sell certain Products online through websites  agree each time a sale of Product is generated:

(a)         to issue an online voucher, generate a booking number and communicate it to SOH via email along with the contact details of the client(s), and time and date of booking;

(b)         to issue a refund and notify SOH of details if the booking is cancelled within the parameters of SOH’s cancellation policy;

(c)         within 30 days of the end of each month, to reconcile all of the bookings that have been made for Product for that month and deposit the amount due to SOH, being the price for all Product sold less Customer’s commission (as set out in the SOH Inbound Price List), into SOH’s designated bank account.

8.2        Customer must obtain SOH’s prior written approval in order to authorise third party operators to sell Products and must notify SOH in writing of the identity of any such third party operators and/or “white labels”. 

8.3        Customer must ensure that all information which they (or their third party operators) display on their websites regarding Products, is accurate and is in no way misleading or deceptive.  Customer must promptly correct any information which SOH advises is inaccurate or misleading and must use best endeavours to ensure that their third party operators do the same.

8.4     If authorised in accordance with Clause 8.1, SOH grants Customer a non-exclusive, sub-licensable (subject to Clause 8.2), worldwide, royalty-free right to use and display, copy, reproduce and redistribute material bearing the SOH Brand solely in connection with distribution of the Products provided under this agreement, provided always that Customer seeks SOH’s prior written approval at least 5 working days prior to publication of any material which uses the SOH Brand and Customer is not authorised to use any aspect of the SOH Brand without SOH’s prior written approval.  This licence ends on expiry or termination of this agreement or as otherwise notified by SOH in writing.

9.       Dishonoured and late payments

9.1        If a payment by the Customer is dishonoured or late by more than 5 days, then SOH may do all or any of the following:

(a)       it may cancel the order (in which case Clause 6.2 would apply);

(b)       it may charge the Customer any dishonoured cheque fees;

(c)        it may charge the Customer interest on all unpaid amounts at a rate equal to 10% p.a, calculated on a daily basis;

(d)       it may cancel future bookings;

(e)       it may notify the Customer that any previously agreed commission has been withdrawn and that the Customer will be charged the gross rate for all bookings from the date of the notice; and/or

(f)         it may withdraw credit facilities and request pre-payment for all future bookings.

10.    Free Of Charge policy

10.1    If the Product is a Guided Tour, for every group of 46 or less paying pax SOH will allow up to one escort, or local guide provided by the Customer, to accompany the Guided Tour free of charge (FOC). Escorts and local guides must follow the instructions of the SOH guide.

10.2    If the product is a Package Product (subject to confirmation by our service providers):

(a)       for groups of between 24 and 46 pax, one escort or local guide, provided by the Customer, will be granted a FOC tour and dinner (but the escort’s performance component will be charged at the box office rate); and

(b)       for groups of over 46 pax, two escorts or local guides, provided by the Customer, will be granted a FOC tour and dinner (but the escorts’ performance components will be charged at the box office rate).

10.3    For the avoidance of doubt, the escort or local guide cannot be replaced with a customer.

11.    Customer warranties and indemnities

11.1    The Customer warrants:

(a)       it has all necessary licences and approvals to acquire a Product from SOH and must provide SOH, on request, with evidence of them; and

(b)       its promotional material:

i)     does not infringe the intellectual property rights, or breach the contractual rights, of any person; and

ii)   is not defamatory or in contravention of Commonwealth or State consumer protection legislation, including the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth); and

(c)        it will disclose to its Customers the nature of each Product, including any access and physical requirements relating to each Product and any other conditions relating to the SOH site as notified to Customer by SOH from time to time.

11.2    The Customer indemnifies SOH, its employees and contractors against all losses, damages, expenses and costs (on a full indemnity basis) that any of them may sustain or incur as a result, whether directly or indirectly, of:

(a)       a breach by the Customer, or by the Customer’s clients, of these Terms and Conditions;

(b)       damage, caused by the Customer (or the Customer’s clients), to any person or property of, or at SOH; or

(c)        the Customer’s negligence (including the negligence of the Customer’s clients).

12.    Confidentiality

12.1    Confidential information of a party means all information which a party would reasonably regard as confidential. In the case of SOH it includes the SOH Price Lists and published rates.

12.2    Each party:

(a)       may use confidential information of the other party solely for the purposes of this agreement; and

(b)       except as permitted under Clause 12.2 (c), must keep confidential all confidential information of the other party;

(c)        may disclose confidential information of the other party only:

i)     to persons who:

ii)   are aware and agree that the confidential information must be kept confidential; and

iii)  either have a need to know (and only to the extent that each has a need to know), and have been specifically approved by the other party; or

iv)  as required by law.

12.3    Even though information is confidential information, a party is not obliged to comply with Clauses 12.1 and 12.2 in relation to the confidential information if:

(a)       the confidential information becomes public knowledge during this agreement; or

(b)       a party becomes aware of that confidential information from a third person, in each case, in circumstances where there was no breach of any obligation of confidence.

13.    Limitation of liability

13.1    To the extent permitted by law, SOH will not be liable to the Customer for any indirect, special, incidental, consequential loss or any lost profits or revenue or other economic loss or damage suffered as a result of claims by a third person, even if SOH knew such damage was possible or otherwise foreseeable.

13.2    To the extent permitted by law, SOH’s liability to the Customer for a breach of any condition or warranty whether express or implied under the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) or any other applicable legislation, is limited to one or more of the following:

(a)       re-supplying, repairing or replacing; or

(b)       paying or refunding the cost of re-supplying, repairing or replacing, a product or service in respect of which the breach occurred.

13.3    SOH may determine which of the above remedies it offers to the Customer in its absolute discretion.

13.4    To the extent permitted by law SOH excludes:

(a)       from these Terms and Conditions all conditions, warranties and terms implied by statute, general law or custom;

(b)       all liability to Customer in tort (including negligence) or bailment for acts or omissions of SOH, its employees and contractors arising out of or in relation to products or any delay or other failures to supply any products; and

(c)        all liability to the Customer’s clients with respect to any loss, damage or injury arising from a pre-existing medical condition or due to failure of a person to comply with SOH’s instructions or conditions of use.

14.    Insurances

14.1    The Customer must hold policies of insurance covering:

(a)       Workers' Compensation; and

(b)       Public Liability to an amount of not less than $20,000,000 for any single occurrence;

14.2    The policy details in Clause 14.(b) above shall cover SOH, the Customer’s clients and

their respective employees and contractors. The Customer must, on request, promptly produce copies of the policies required under this clause.

15.    Termination

15.1    Either party may terminate the agreement immediately if the other party:

(a)       has not remedied a material breach within a reasonable time of being notified of the breach; or

(b)       becomes bankrupt or insolvent.

15.2    SOHT may terminate the agreement if the Customer is unable to perform its obligations and duties under this agreement.

15.3    Termination does not prejudice any other right of action or remedy which has accrued or might accrue to either party.

16.    Disputes

16.1    Any dispute arising out of the provisions of this agreement shall, in the first instance, be referred to the Chief Executive Officer of each party (or his or her delegate) for resolution. If no resolution is made within 30 days then the dispute may be referred to arbitration or mediation by either of the parties.

17.    General

17.1    No party may assign, sub-license or otherwise deal with all or any of its rights under this agreement or allow any interest in them to arise or be varied, except with the prior approval of the other party.

17.2    No party to this Agreement will be held liable (except as outlined in Clause 6.7 where a circumstance beyond its reasonable control occurs (including industrial action, directions of the NSW Government, construction and demolition works, an act of God, security and safety issues and crowd control measures) and results in that party being unable to carry out its obligations under this agreement.

17.3    This agreement:

(a)       does not create a relationship of employer and employee, principal and agent, or partnership between SOH and the Customer;

(b)       does not give the Customer or its employees authority to bind SOH;

(c)        is governed by the law applicable in the State of New South Wales and each party submits to the jurisdiction of the courts in that State;

(d)       supersedes all previous agreements, whether oral or written, in relation to its subject matter;

(e)       will not be altered by any Customer document (including a purchase order) or statement;

(f)         may not be varied by the parties other than in writing; and

(g)       may be executed in counterpart, all of which taken together is deemed to constitute one and the same document and the parties agree to be bound by this agreement executed in counterparts.