Performer Agreement (Signed)
Parties
Unplugged Entertainment Pty Ltd ACN 632 442 034
(Company)
and
Ben Downing
(Contractor)
Background
A. B. C. The Company contracts with Clients for artists to perform at Events. The Contractor wishes to be considered by the Company to Perform at Events.
Accordingly, the Contractor and the Company have agreed that the Contractor shall Perform at Events on the terms herein.
Operative part
1 Definitions
In this agreement:
Booking means an agreement between the Company and the Contractor that the Contractor shall Perform at a specific Event;
Calendar Invitation means an electronic invitation to present a Performance at an Event;
Client means the person(s) specified in the Booking Confirmation or otherwise responsible for the management of the Event;
Company Client means any musical artist that the Company has arranged to perform in the past.
Equipment means equipment to be used by the Contractor during the Event.
Event means any function or performance (or connected series of functions and performances) described in a Calendar Invitation;
Force Majeure Event means any extraordinary event or circumstance:
(a) not within the reasonable control of a party;
(b) directly or indirectly causes, or substantially contributes to, the failure of a party to perform on time any of its obligations in this agreement; and
(c) is not reasonably able to be prevented or circumvented by the party so affected after taking reasonable precautions or other steps;
GST means a tax payable under the A New Tax System (Goods and Services Tax) Act 1999;
Performance means the musical presentation of entertainment to an audience described in a Calendar Invitation;
Performance Fee means the fee payable to the Contractor for presenting the Performance, specified on a Calendar Invitation;
SGL means a contribution payable under the Superannuation Guarantee (Administration) Act 1992;
Venue means the location of the Event, specified in a Calendar Invitation.
2 Interpretation
In this agreement, unless context indicates a contrary intention:
(a) (internal references) references to this agreement or to clauses, paragraphs, schedules and other parts are references to this document;
(b) (headings) clause headings and the table of contents are inserted for convenience only and do not affect interpretation;
(c) (party) a reference to a party to a document includes that party's agents, employees, personal representatives, executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns.
(d) (including) including and includes (and any other similar expressions) are not words of limitation, and when followed by a list of examples is not limited to those examples or to examples of a similar kind.
(e) (corresponding meanings) a word that is derived from, or another form of, a defined word has a corresponding meaning.
(f) (singular) the singular includes the plural and vice-versa.
(g) (gender) words importing one gender include all other genders.
(h) (rules of construction) this agreement is not to be construed against a party on the basis that the party or its lawyers were responsible for its drafting or rely upon it.
(i) (legislation) a reference to any legislation or provision of legislation includes all amendments, consolidations or replacements and all regulations or instruments issued under it.
(j) (time and date) time shall be of the essence and a reference to a time or date in connection with the performance of an obligation by a party is a reference to the time and date in Victoria, Australia, even if the obligation is to be performed elsewhere.
(k) (no waiver) no indulgence or delay whatsoever shall be deemed a waiver of the rights of any party.
(l) (writing) a reference to a notice, consent, request, approval, disclosure or other communication under this agreement or an agreement between the parties means a written notice, request, consent, approval, disclosure or agreement.
(m) (Australian currency) a reference to dollars or $ is to Australian currency.
3 Relationship of the parties
3.1 Independent Contracting Parties
The parties acknowledge and agree that:
(a) nothing in this agreement nor in any Booking shall be read or understood as creating an employment relationship between the parties;
(b) the Company is not required to provide employment-like entitlements or benefits to the Contractor;
(c) the Contractor is a non-exclusive supplier of Performances to the Company;
(d) nothing in this agreement nor in any Booking creates any relationship of trust, partnership, agency or joint venture except as expressly set out in this agreement or by reason of a Booking;
(e) neither party has (or shall represent to have) the authority to bind the other or to create or assume any obligation or responsibility in the other's name, whether express or implied, except as expressly set out in this agreement.
3.2 Cost, risk
(a) The Contractor presents the Performance:
(i) at its own cost (except as may be stated in a Calendar Invitation); and
(ii) at its own risk, except to the extent covered by a policy of insurance by the Company.
(b) Any duty of care arising out of the presentation of a Performance rests solely with the Contractor.
(c) The Company will pay to the Contractor any sum it receives from the Client in relation to damage to the Contractor's Equipment caused by the negligence of the Client.
4 Performances
4.1 Responsibilities of the Contractor
(a) The Contractor will present Performances the subject of a Booking.
(b) The Contractor must present the Performance:
(i) if the Contractor is an individual, personally; and
(ii) if the Contractor is incorporated (operates their business through a company, trust or partnership structure), by the individual named in the Calendar Invitation,
and must not assign or purport to assign any Booking without the express written permission of the Company.
(c) The Contractor must not do anything or enter into any other arrangement, agreement or understanding that would or might be expected to have the result that the Contractor will be unable to present a Performance the subject of a Booking.
(d) The Contractor will present Performances in such manner as the Contractor shall in its discretion and professional judgement determine, provided that it does so:
(i) diligently, professionally and to the best of the Contractor's ability;
(ii) in such manner as not to bring the Company into discredit or disrepute;
(iii) in accordance with applicable laws;
(iv) in such manner as not to infringe the intellectual property (including copyright) rights of any third party;
(v) in accordance with any reasonable requirements of the manager of the Venue;
(vi) in accordance with the reasonable directions of the Client; and
(vii) in compliance with such of the Company's policies as may be notified to the Contractor from time to time.
(e) Unless otherwise specified in the Booking Form, the Contractor will be responsible for providing all Equipment (including, without limitation, costumes, make-up, wigs, props and musical instruments), and for any accommodation and transport required by the Contractor.
(f) The Contractor will be available to perform appropriate technical checks of Equipment at the Venue.
(g) The Contractor must be available to commence the Performance a minimum of one hour before the time at which the Performance is scheduled to start.
4.2 Health and safety
(a) The Contractor must promptly notify the Company whenever it learns of any matter or circumstance creating a safety hazard in connection with the presentation of a Performance.
(b) The Contractor must promptly notify the Company of any accident or near miss witnessed or suffered by the Contractor while presenting a Performance.
(c) The Contractor must, on an ongoing basis, provide the Company with reasonable information and assistance in relation to any accident or near miss witnessed or suffered by the Contractor while presenting a Performance.
4.3 Copyright
(a) The Contractor acknowledges and agrees that the Client may record and/or film, or arrange for the recording and/or filming of, the Performance, and that as between the Contractor and the Client, the Contractor is the owner of the copyright in any such sound recording or film of the Performance, although the Client may use any such sound recording or film of the Performance with the prior written consent of the Contractor, such consent not to be unreasonably withheld.
(b) The Contractor consents to any treatment of its copyright works embodied in any such sound recording or film, and any treatment of the Performance that is consistent with reasonable industry practice.
5 Booking
5.1 Making a Booking
(a) From time to time the Company may offer the Contractor the opportunity to Perform at an Event by providing the Contractor a Calendar Invitation.
(b) If the Contractor accepts the Calendar Invitation, a Booking shall be created for the Performance and Event described therein.
(c) A Booking constitutes a binding obligation on the Contractor to present the said Performance.
5.2 Contractor cancelling a Booking
(a) Subject to paragraph (b), if:
(i) the Contractor cancels a Booking; and
(ii) the Client does not accept an alternative proposal to supply a different artist to present the Performance,
the Contractor must:
(iii) indemnify the Company against any claim made against the Company in respect of the Contractor's cancellation; and
(iv) pay to the Company, on demand, 50% of the net commission (excluding GST) fee that was to be earned by the Company in respect of the Contractor's Performance.
(b) The Contractor shall be entitled to cancel any Booking in, and only in, the following events:
(i) the Contractor has become ill or injured such that the presentation of the Performance is impossible or not reasonably possible;
(ii) there is a force majeure event affecting the Contractor.
(c) The Contractor acknowledges that paragraph (a)(iv) is a reasonable and fair estimate of the loss to the Company.
(d) The Contractor shall promptly furnish such proof (e.g. medical certificates) of the matters described in paragraph (b) as the Company may request from time to time.
5.3 Company cancelling a Booking
(a) The Company shall be entitled to cancel any Booking at any time where:
(i) its contract with the Client in respect of the relevant Event is cancelled under the terms of the Company's contract with the Client;
(ii) the Client is in breach of its obligations to the Company; or
(iii) the Client and the Company agree to reschedule the relevant Event to a date where the Contractor is unavailable to accept a Booking.
(b) If:
(i) the Company cancels a Booking under paragraph (a)(i) or (a)(ii); and
(ii) the said cancellation occurs 60 days or more before the Event;
the Contractor shall receive 10% of the Performance Fee.
(c) If:
(i) the Company cancels a Booking under paragraph (a)(i) or (a)(ii); and
(ii) the said cancellation occurs less than 30 days before the Event;
the Contractor shall receive 90% of the Performance Fee provided that the Company is holding such amount by way of deposit from the Client and otherwise 90% of such amount as the Company so holds, if any.
(d) If:
(i) the Company cancels a Booking under paragraph (a)(iii); and
(ii) the said cancellation occurs 120 days or more days before the Event;
the Contractor shall receive 10% of the Performance Fee.
(e) If:
(i) the Company cancels a Booking under paragraph (a)(iii); and
(ii) the said cancellation less than 120 days before the Event;
the Contractor shall receive 30% of the Performance Fee.
6 Performance Fee
6.1 Payment
(a) In consideration of the presentation of the Performance, the Company will pay the Performance Fee to the Contractor.
(b) The Performance Fee is:
(i) exclusive of GST; and
(ii) inclusive of SGL.
(c) The Company will prepare a recipient created tax invoice for the Performance Fee, and will, subject to adjustment under paragraph (d), make payment within 14 days from the Monday following the Event.
(d) The Contractor acknowledges and agrees that the Company will be entitled to deduct SGL (which shall be paid to the fund nominated by the Contractor) from the Performance Fee.
6.2 Disbursements and expenses
(a) The Company will not be liable to reimburse the Contractor for any disbursements or expenses without prior written approval.
(b) Where such approval is given, the Contractor shall provide all invoices, credits and receipts therefor.
(c) The Contractor must not incur or purport to incur any expense on behalf of the Company.
7 Insurance
7.1 Contractor to maintain insurance
Without limitation to the Contractor's liabilities or obligations under this agreement, the Contractor shall obtain and maintain at its own cost and expense throughout the Term, the following insurance satisfactory to the Company:
(a) Public liability insurance for not less than $5,000,000 (five million); and
(b) such other insurance as the Company may require from time to time.
7.2 Evidence of insurance
(a) The Contractor must, whenever requested by the Company, provide satisfactory evidence of the currency of all insurance policies to which clause 7.1 refers.
(b) The Company shall be entitled to withhold, without penalty, any payment which would otherwise become due to the Contractor until the Contractor complies with paragraph (a).
8 Termination
8.1 Notice
(a) Either party may terminate this agreement for any reason by giving four weeks' notice to the other.
(b) Termination under this clause 8.1 shall take effect after payment of the Performance Fee following the last Performance in respect of which there is a Booking.
(c) Nothing in this clause 8.1 affects the right of the Company to terminate this agreement for serious or persistent breach.
8.2 Return of Company property
The Contractor will, upon termination of this agreement or expiry of the Term, promptly return to the Company any property of the Company in the Contractor's possession.
8.3 Survival of terms
(a) Termination of this agreement shall not affect any accrued rights.
(b) The rights and obligations created by clauses 4.2 and 5.2 shall survive termination.
9 Restraints
9.1 Prohibited activities
The Contractor must not without the prior written consent of the Company, directly or indirectly:
(a) be engaged in the provision of services similar to those provided by the Company;
(b) encourage any Company Client to reduce or cease its relationship with the Company;
(c) employ, solicit or entice away from the Company any employee or contractor; or
(d) attempt, counsel, procure or otherwise assist another to do any of the acts described in this clause 9.1.
9.2 Duration of prohibition
The prohibitions in clause 9.1 begins upon signing this agreement and ends:
(a) on the second anniversary of the date on which this agreement is terminated;
(b) on the first anniversary of the date on which this agreement is terminated; and
(c) six months after the date on which this agreement is terminated.
9.3 Geographic application of prohibition
The prohibitions in clause 9.1 apply if the prohibited activity occurs:
(a) in Australia;
(b) in Victoria; and
(c) in the Melbourne metropolitan area.
9.4 Enforceability and severance
(a) This clause has effect as if it were separate and independent clauses, each one being severable from the others and consisting of the covenants set out in clause 9.1 combined with each separate period referred to in clause 9.2, and each combination combined with each separate area referred to in clause 9.3.
(b) If any of these separate clauses are void, invalid or unenforceable for any reason, it will be deemed to be severed to the extent that it is void or to the extent of voidability, invalidity or unenforceability and will not affect the validity or enforceability of any other separate clause or other combinations of the separate provisions of clauses 9.1, 9.2 and 9.3.
10 Miscellany
10.1 Invalidity
(a) A word or provision must be read down if:
(i) this agreement is void, voidable, or unenforceable if not read down;
(ii) this agreement will not be void, voidable or unenforceable if read down; and
(iii) the provision is capable of being read down.
(b) A word or provision must be severed if:
(i) despite the operation of clause 10.1(a), the provision is void, voidable or unenforceable if not severed; and
(ii) this agreement will be void, voidable or unenforceable if not severed.
(c) The remainder of this agreement has full effect even if clause 10.1(b)(i) or 10.1(b)(ii) applies.
10.2 Entire contract
(a) This agreement forms the entire agreement and understanding between the parties about its subject matter and supersedes all prior arrangements, agreements, representations, communications and understandings (whether in writing or otherwise); and
(b) The Contractor acknowledges that it has not relied on any representation, promise or inducement as to the level of earnings the Contractor might derive from this agreement or otherwise unless expressly set out herein.
10.3 Counterparts
This agreement may be executed in counterparts. All counterparts taken together constitute one instrument that takes effect when the separately executed counterparts are exchanged between the parties.
10.4 Governing Law
This agreement is governed by the Law applicable in Victoria.
SIGNING
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EXECUTED as an agreement.
EXECUTED by UNPLUGGED ENTERTAINMENT PTY LTD in accordance with section 127 of the Corporations Act 2001 (Cth) by being signed by the following officers:
Leighton Splatt, sole Director
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EXECUTED by
Ben Downing
