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BACKGROUND

A. NFF Limited is organising the Event

B. The Artist has agreed to present the Performance during the Event and at the Venue on the Date and Time, in accordance with the terms of this agreement.

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OPERATIVE PROVISIONS

1. Definitions and interpretation

1.1 Definitions

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In this Agreement:

• Agreement means this document, as varied or extended by the Parties from time to time in accordance with this Agreement, and includes any documents incorporated by reference.

• Artist Equipment means the equipment identified in section Artist Equipment of the Artist Agreement.

• Artist Fee means the fee identified in section Artist Fee of the Artist Agreement.

• Business Day means in relation to the doing of any action in place, any day other than a Saturday, Sunday or public holiday in that place.

• Commencement Date means the day identified in section Commencement Date of the Artist Agreement.

• Completion Date means the day identified in section Completion Date of the Artist Agreement.

• Co-Performers means the performers identified in section Co-Performers of the Artist Agreement.

• Date means the date identified in section Date and Time of the Artist Agreement.

• Event means the event identified in section Event of the Artist Agreement.

• GST has the meaning that it has in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

• Intellectual Property Rights means all intellectual property rights which may subsist in Australia or elsewhere, whether or not they are current or future or registered or capable of being registered, but excluding Moral Rights.

• Moral Rights means the rights in Part IX of the Copyright Act 1968 (Cth), including the right of attribution, the right of false attribution and the right of integrity.

• Performance means the performance identified in section Proposed Scheduled Performances of the Artist Agreement.

• Recordings means cinematographic films and sound recordings of any performance of the Artists in carrying out the Services.

• Services means any services that the Artist must provide under this Agreement.

• Technical Checks means the technical checks identified in section Technical Checks of the Artist Agreement.

• Term of this Agreement means the period referred to in clause 2(a).

• Time means the time identified in section Date and Time of the Artist Agreement.

• Venue means the Venue identified in the section Event of the Artist Agreement.

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1.2 Interpretation

In this Agreement

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(a) headings are for convenience only and do not affect interpretation;

and unless the context indicates a contrary intention:

(b) if more than one person is identified as the Artist, that expression refers to them, and the obligations of the Artist under this Agreement bind them, jointly and severally;

(c) “person” includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;

(d) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation;

(e) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;

(f) a reference to a statue includes its delegated legislation and a reference to a statute or delegated legislation or a provision of either includes consolidations, amendments, re-enactments and replacements;

(g) a word importing the singular includes the plural (and vice versa) and a word indicating a gender includes every other gender;

(h) a reference to a party, clause, schedule, exhibit, attachment or annexure is a reference to a party, clause, schedule, exhibit, attachment or annexure to or of this Agreement and a reference to this Agreement includes all schedules, exhibits, attachments and annexures to it;

(i) if a word or phrase is given a defined meaning, any other part of speech of grammatical form of that word or phrase has a corresponding meaning;

(j) “includes” in any form is not a word of limitation; and

(k) a reference to “$” or “dollar” is to Australian currency.

 

1.3 Precedence of documents forming this Agreement

(a) This Agreement is comprised of:

(i) clauses 1 to 14;

(ii) Performance details attached separately; and

(iii) any attachments

(b) If there is ambiguity or inconsistency between the documents comprising this Agreement, the document appearing higher in the list in clause 1.3(a) will have precedence.

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2. Term

(a) This Agreement commences on the Commencement Date and continues until the Completion Date, unless otherwise extended or terminated in accordance with this Agreement.

(b) The parties may agree to extend the Term of this Agreement at any time prior to the Completion Date.

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3. Services

The Artist must:

(a) present the Performance with the Co-Performers during the Event on the Date(s) and at the Time(s) and at the Venue, and in accordance with any requirements specified in Performance Details;
(b) provide all Artist Equipment for the purpose of the Performance;

(c) not do anything or enter into any contract or understanding that might be reasonably likely to cause the Artist to not be available as required under this Agreement;

(d) must participate in, and fully cooperate with any representative of NFF limited in relation to all Technical Checks and any other technical checks as directed by NFF Limited;

(e) conduct the Performance in such a manner so as not to breach any law or cause the Venue to breach any of the conditions of the permits or consents that the Venue or the Artist have obtained in relation to the Performance or the Event;

(f) comply with:

(i) all laws; and

(ii) any lawful direction from any authorised representative of NFF Limited, in relation to the Services; and

(g) ensure that all Services are provided to the best of the Artist’s ability and are of a high creative, professional and technical standard.

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4. Basis of engagement

4.1 Other Contractors and employees

• In addition to the Co-Performers, the Artist may engage such other persons as the Artist requires to assist the Artist to perform the Services, whether as employees, contractors, volunteers or otherwise, with the prior written consent of NFF Limited, which consent must not be unreasonably withheld.

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5. Fees

5.1 Payment

• Subject to this Agreement, NFF will pay the Artist the Artist Fee on the date specified in Performance Details.

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5.2 Pre-conditions for payment

(a) NFF Limited will only be liable to make payments under clause 5.1 if:

(i) the Artist has provided to NFF Limited a correctly rendered invoice for the amount properly due under clause 5.1 in accordance with the requirements of clause 5.3; and

(ii) the Artist provides the Services to NFF Limited’s complete satisfaction;

(b) Subject to this Agreement, NFF Limited will make each payment within 20 Business Days after receipt of the correctly rendered invoice referred to in clause 5.2(a)(i).

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5.3 Requirements for a correctly rendered invoice

• To be correctly rendered, invoices must include the following”

(a) the words “tax invoice” stated prominently;

(b) the Artist’s name;

(c) the Artist’s ABN;

(d) the date of issue of the tax invoice;

(e) the total amount payable (including GST, if applicable); and

(f) the GST amount shown separately (if applicable).

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5.4 No additional payments

• The Artist is not entitled to any payments under this Agreement in addition to those specified in clause 5.1.

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6. Taxes, duties and government charges

(a) Except as provided by this clause 6, the Artist agrees to pay all taxes, duties and government charges imposed or levied in Australia or overseas in connection with the performance of this Agreement.

(b) Unless otherwise indicated, the fees and all other considerations for any supply made under this Agreement is exclusive of any GST imposed on the supply.

(c) If one party (the supplier) makes a taxable supply to the other party (the recipient) under this Agreement, on receipt of a tax invoices from the supplier, the recipient will pay without the setoff an additional amount to the supplier equal to the GST imposed on the supply in question.

(d) No party may claim or retain from the other party any amount in relation to a supply made under this Agreement for which the first party can obtain an input tax credit or decreasing adjustment.

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7. Warranties and indemnities

7.1 Artist’s Warranties

• The Artist represents and warrants that:

(a) the Artist:

(i) is suitably qualified and capable of presenting the Performance and otherwise providing the Services in accordance with this Agreement;

(ii) is entitled to present the Performance in accordance with this Agreement, and in doing so will not infringe any Intellectual Property Rights or Moral Rights of any third party; and

(iii) is entitled to enter into this Agreement and to grant the rights granted to NFF Limited under this Agreement.

(b) there are no restrictions that prevent the Artist granting the rights to NFF Limited as required under this Agreement;

(c) NFF’s use and exploitation of the Recordings as contemplated by this Agreement (including clause 8) will not infringe any Intellectual Property Rights or Moral Rights of any third party;

(d) all individuals who may have Moral Rights in any Recordings have validly provided their written consent allowing the NFF Limited to deal with that Recorded Material (including by way of destruction or alteration) and without attribution of authorship in any such manner as NFF Limited may for its sole convenience and at its absolute discretion decide without being held to have infringed any Moral Right of the individual; and

(e) any performance or material created by the Artist as part of the Services is not and will not be defamatory.

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7.2 Indemnities

(a) The Artist must indemnify NFF Limited against:

(i) any:

A. liability, loss or damage (including legal expenses on a solicitor-client basis) incurred in respect of personal injury or death of any person; and

B. loss or damage to property

to the extent directly caused by any:

C. breach of this Agreement by the Artist; or

D. unlawful or negligent act or omission on the part of the Artist, a Co-Performer or any persons engaged by the Artist to assist the Artist to perform the Services, whether as employees, contractors, volunteers or otherwise; and

(ii) any liability, loss or damage arising in connection with any breach of the Artist’s warranties given in clause 7.1.

(b) The Artist is liable for all income tax, workers’ compensation, insurance payments, holiday pay, long service leave or other benefits payable to, or in relation to any employee of the Artist.

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8. Intellectual property rights

8.1 copyright

(a) The parties agree that the Artist owns the entire copyright throughout the world in any dramatic, literary, artistic, or musical works created by the Artist in carrying out the Services (Works) in the course of the Artist’s engagement under this Agreement.

(b) The Artist grants NFF Limited a non-exclusive licence:

(i) for the duration of the 2025 National Folk Festival Performance by the Artist; and

(ii) throughout Australia,

to reproduce, perform, publish and communicate the Works to the public.

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8.2 Performers’ rights

• The Artist authorises NFF Limited to make, or authorise the making, of Recordings and the parties agree that:

(a) NFF Limited owns all rights, including the copyright in such Recordings; and

(b) NFF Limited may exercise any of the rights as the owner of the copyright in the Recordings, including selling or renting copies of the Recordings to be seen in public and communicating the Recordings to the public:

(i) throughout the world;

(ii) in all media, and by all means now known or yet to be invented; and

(iii) for the term of copyright and any renewals, revivals and extensions.

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8.3 Credits and consent to publicity

(a) The Artist authorises NFF Limited:

(i) to use the Artist’s name, likeness and biography in any program or playbill that provides information about the case and production crew of any performance; and

(ii) to use the Artist’s name, likeness and biography and any performance of the Artist authorised under clause 8.2, in any media, and by all means, whether known now or invented in the future:

A. for the purpose of obtaining funding for any public performance to be given as part of the Services;

B. to publicise, promote and advertise any public performance to be given as part of the Services; and

C. to publicise, promote and advertise any ancillary products, including press kits, any “making of” programs of the Production, DVDs and any other copies of the Recordings that are commercially distributed by NFF Limited or communicated to the public. NFF Limited must use its best efforts to ensure that the Artist is given credit for their performance in any program or playbill that provides information about the cast and production crew of the Production.

(b) Any failure to give the Artist the credit under clause 8.3(a)(ii) is not a breach of this Agreement if the failure is not due to NFF Limited’s fault or negligence.

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9. Confidential Information

9.1 What is Confidential Information?

• In this Agreement, ‘Confidential Information’ means all trade secrets, ideas, know-how, concepts and any other information confidential to NFF Limited that is disclosed to the Artist or acquired by the Artist during the course of the Artist’s engagement under this Agreement, which relates to the financial affairs, businesses, projects, property, sales, marketing or promotional information of NFF Limited that are generally not available to the public. It also includes but is not limited to:

(a) any proposed or existing production;

(b) any arrangement with an external stakeholder, including a sponsor, financier or funding agency;

(d) any agreement or arrangement between NFF Limited or a related entity with another employee or contractor;

(d) any Confidential Information of any third party obtained by NFF limited on a confidential basis;

(e) information that is specifically designated as confidential by NFF Limited; or

(f) information that is by its nature may reasonably be understood to be confidential.

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9.2 Obligation of confidence

• The Artist must, both during and after the termination of its engagement keep confidential and not disclose or use any Confidential Information that may come to its knowledge during on or in the course of this Agreement, unless:

(a) disclosure is expressly authorised by NFF Limited;

(b) disclosure is required by law or court order;

(c) the information is in, or enters the public domain for reasons other than a breach of this agreement by the Artist;

(d) the information was in the possession of the Artist prior to disclosure to it by NFF Limited;

(e) the information was lawfully obtained by the Artist from another person without any restrictions as to its use; or

(f) the information is disclosed to professional advisors who have agreed to keep the information confidential.

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9.3 Survival of obligation of confidentiality

• The obligation under clause 9.2 will survive the termination of this Agreement.

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10. Insurance

(a) The Artist is responsible for taking out and maintaining the following insurance:

(i) public liability insurance;

(ii) a current workers’ compensation or similar insurance policy, and pay workers’ compensation insurance premiums, in respect of any of his/her/its employees; and

(iii) insurance covering loss, damage or destruction of the Artist’s property and equipment.

(b) The Artist will provide NFF Limited with written evidence of the currency and terms of such insurance policies upon request by NFF Limited.

(c) The Artist must do all things necessary to fulfil the terms of the insurance policies specified in clause 10(a). Where the Artist is aware of any damage, loss or injury occasioned by him/her, or any other member of the group, or any third party, or to equipment, property or materials of the foregoing, such damage, loss or injury must be reported by the Artist to NFF Limited within 24 hours of such event and an appropriate report filed.

(d) Without limiting NFF Limited’s rights at law, in equity, or otherwise under this Agreement, any failure by the Artist to comply with a provision of this clause 10 entitled NFF Limited to terminate this Agreement.

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11. Termination

11.1 Termination by NFF Limited for cause

• If at any time during this Agreement, the Artist:

(a) commits any act involving fraud, deceit, or dishonesty (whether in relation to NFF Limited or otherwise);

(b) becomes bankrupt or commits any act of bankruptcy;

(c) refuses or fails to comply with any lawful request made by any person authorised by NFF Limited;

(d) is unable to properly perform the essential elements of the Services whether as a result of illness, accident or otherwise; or

(e) is in breach of any of its obligations under this Agreement and fails to rectify that breach within 7 calendar days after being requested in writing to do so by NFF Limited,

• NFF Limited may terminate this Agreement immediately in writing, without prejudice to any other claim, right or remedy that NFF Limited may have against the Artist.

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11.2 Termination by NFF Limited for convenience

(a) NFF Limited may by notice, at any time and in its absolute discretion, terminate this Agreement, or reduce the scope of the Services, by giving 14 calendar days’ written notice to the Artist.

(b) The Artist must, on receipt of a notice under clause 11.2(a):

(i) stop or reduce work in relation to the performance of the Services as specified in the notice;

(ii) take all available steps to minimise loss resulting from the termination or reduction in the scope of the Services; and

(iii) continue work on any part of the Services in accordance with this Agreement not affected by the notice.

(c) NFF Limited’s liability to pay under clause 11.2 is subject to the Artist’s strict compliance with this clause 11.2 and will not exceed the amount of the Artist Fee.

(d) In the event of termination under this clause 11.2, NFF Limited will be liable only to:

(i) make any payments that are payable under this Agreement to the Artist before the effective date of termination; and

(ii) reimburse any expenses the Artist unavoidably incurs relating entirely to Services not covered under clause 11.2(d)(i), subject to the Artist’s full and proper substantiation of those expenses to NFF Limited’s complete satisfaction.

(e) In the event of a reduction of the scope of the Services under this clause 11.2, the NFF Limited’s liability to pay any payments under clause 5 will be, in NFF Limited’s absolute discretion, reduced to reflect the reduced costs incurrent by the Artist in providing the remaining Services.

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11.3 Termination due to COVID-19 Pandemic

(a) If NFF Limited is directed by law to take a particular action by a public health authority, and that action impacts the ability of the Event to proceed, NFF Limited may terminate this Agreement with immediate effect by providing notice to the Artist.

(b) In the event of termination under clause 11.3(a), NFF Limited will not be liable to make any payments to the Artist under this Agreement.

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11.4 Deliver up

• Immediately upon termination of this Agreement, the Artist must deliver to NFF Limited:

(a) all documents and other things which related to or otherwise record Confidential Information; and

(b) all things belonging to NFF Limited or in respect of which NFF Limited has rights of ownership.

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12. Disputes

(a) If a dispute or disagreement (Dispute) arises between the parties in connection with this Agreement:

(i) one party must notify the other party in writing about the Dispute (Notice of Dispute); and

(ii) neither party may start any litigation or arbitration in relation to the Dispute until the parties have complied with this clause 12.

(b) The parties must meet within 14 calendar days after receipt of the Notice of Dispute and hold good faith discussions to attempt to resolve the Dispute.

(c) The parties must continue to perform their respective obligations under this Agreement despite the existence of a Dispute.

(d) Nothing in this clause 12 will impact on either party’s rights to terminate under clause 11 of this Agreement.

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13. Working with vulnerable people

• If the Artist’s provision of the Services is likely to involve close proximity with people who are children, elderly, disabled or otherwise vulnerable, before providing the Services, the Artist must arrange and pay for all checks or similar, and comply with any other requirements, to ensure that the Artist’s provision of the Services or related activities does not breach any legislation relating to vulnerable people in the jurisdiction in which the Services are being delivered.

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14. General

14.1 Status

• The parties acknowledge that the Artist is an independent contractor and that nothing in this Agreement creates any relationship of partnership, principal and agent or employment between the parties.

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14.2 Assignment

• Neither party may assign its rights and benefits under this Agreement to any other person except with the prior written consent of the other party.

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14.3 Notices

(a) A notice must:

(i) be given to a party using:

A. one of the following methods (and no other method):

1) email;

2) pre-paid post; or

3) hand delivery; and

B. the email address, postal address or physical address of the party as set out in items 1 and 2 of Performance Details;

(ii) be in legible writing and in English;

(iii) clearly indicate that it relates to this Agreement;

(iv) in the case of email, state the name of the sending party; and

(v) in the case of communications other than email, be signed by the sending party of by an individual duly authorised by the sending party.

(b) A Notice given in accordance with clause 14.3(a) is taken to be received:

(i) if sent by email, upon actual receipt by the addressee;

(ii) if sent by pre-paid post, five Business Days after the date of posting, unless it has been received earlier; and

(iii) if hand delivered, on delivery.

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14.4 Entire agreement

• This Agreement is the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to this subject matter is replaced by this Agreement and has no further effect.

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14.5 Amendment

• This Agreement may only be changed in writing and signed by all parties.

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14.6 Cultural Rights

• Nothing in this Agreement transfers or excludes any applicable cultural rights in favour of Australian Indigenous people that may be implemented under Australian law.

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14.7 Severance

• If any clause or any part of any clause in this Agreement is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from this Agreement without affecting the enforceability, validity, or legality of the remaining clauses (or parts of those clauses), which will continue in full force and effect.

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14.8 Waiver

• If the Artist or NFF Limited delays in exercising any right, that does not constitute a waiver of that right, nor will any waiver (either wholly or in part) of any particular right operate as a waiver of the same or any other right.

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14.9 Governing law

• This Agreement is governed by the law in force in the Australian Capital Territory. The parties submit to the jurisdiction of the courts of that State or Territory and any court competent to hear appeals from those courts.

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14.10 Counterparts

• This Agreement may be executed in any number of counterparts and by the parties in separate counterparts. Each counterpart constitutes the agreement of each party who has executed and delivered that counterpart to the other party either physically or electronically. All such counterparts taken together will be deemed to constitute one and the same Agreement.