Detailed Contract: Artistic Services for Historic Memorials Collection

This document is a comprehensive contract for the provision of artistic services between the Commonwealth of Australia, represented by the Department of Parliamentary Services, and artist Betina Fauvel-Ogden. The contract outlines the commission of a portrait for the Historic Memorials Collection, detailing the context, contract particulars, and conditions of the agreement. It covers essential aspects such as definitions, the scope of artistic services, intellectual property rights, confidentiality, privacy, personnel, payment terms, insurance, work health and safety, dispute resolution, termination clauses, statutory requirements, and security protocols. The agreement also includes a statement of requirements, specifying the portrait's characteristics, submission and approval processes, and consultation procedures. The operative provisions detail the obligations of both parties, ensuring the artist provides high-quality artistic services while adhering to all legal and regulatory standards. This contract ensures the creation and acquisition of a portrait for the Historic Memorials Collection, adhering to a structured framework.

Contract for the
Provision of artistic
services
Between
The Commonwealth of Australia as represented by the Department
of Parliamentary Services
ABN 52 997 141 147
And
[Betina Fauvel-Ogdeninsert name of Artist]
[ABN-223 456 331 92insert ABN (if applicable)]
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CONTRACT FOR THE PROVISION OF ARTISTIC SERVICES
Date
This Agreement is dated 16 March 2020 [insert date].
Parties
This Agreement is made between and binds the following parties:
1. The Commonwealth of Australia as represented by the Department of
Parliamentary Services (the Commonwealth)
2. [insert nameBetina Fauvel-Ogden ] [ABN-223 456 331 92insert ABN (if
applicable)]
(the Artist)
Context
This Agreement is made in the following context:
A. The Commonwealth seeks to commission a Portrait of the Subject for
inclusion in the Historic Memorials Collection.
B. The Artist has offered to create the Portrait on the terms set out in this
Contract.
C. The Commonwealth has agreed to accept the offer by the Artist on the
terms set out in this Contract.
Contract Particulars 6
Conditions of Contract 8
1. Definitions and Interpretation 8
1.1. Definitions 8
1.2. Interpretation 11
2. Provision of the Artistic Services 11
2.1. Services 11
2.2. Standard of Artistic Services 11
2.3. Limit of Authority 12
2.4. Notice of Matters Impacting Upon Artistic Services 12
2.5. Report 12
2.6. Title and Risk 12
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3. Provision of Information and Assistance 12
3.1. Obligations of DPS 12
3.2. Additional Information 13
4. Intellectual Property 13
4.1. Contract Material 13
4.2. Licence of Existing Material 14
4.3. Artist’s Obligations in Relation to Contract Material 14
4.4. Artist’s Warranty 14
4.5. Indemnity 14
4.6. Moral Rights 14
5. Confidentiality 15
5.1. Non-Disclosure 15
5.2. Artist’s Confidentiality 15
6. Privacy 16
7. Personnel 17
7.1. Project Officer 17
7.2. Employees and Subcontractors 17
8. Payment 17
8.1. Payment of Instalments 17
8.2. Reimbursement of Agreed Expenses 18
8.3. Invoices 18
8.4. Payment 18
8.5. Prices and Reimbursements All-Inclusive 18
9. Insurance and Indemnity 19
9.1. Public and General Liability Insurance 19
9.2. Workers’ Compensation Insurance 19
9.3. Professional Indemnity Insurance 20
9.4. Maintenance of Insurance Policies 20
9.5. Claims Against Insurance Policies 20
9.6. Inspection of Policies by DPS 20
9.7. Indemnity 20
10. Work Health and Safety 21
11. Dispute Resolution 22
11.1. Dispute Notice 22
11.2. Representatives to Meet 22
11.3. Reference to Expert 22
11.4. Expert Appraisal 22
11.5. Independent Expert 22
11.6. Determination 23
11.7. Costs of Appraisal 23
11.8. Arbitration 23
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11.9. Condition Precedent 24
11.10.Continued Performance 24
11.11.Clause Survives Termination 24
12. Termination 24
12.1. Termination by DPS 24
12.2. Termination for Fault 25
12.3. Termination Not to Affect Rights 25
12.4. Procedure Upon Termination 25
13. Statutory Requirements 25
14. Security 26
15. General 26
15.1. Entire Agreement 26
15.2. Conflict of Interest 26
15.3. Access to the Artist’s Premises 27
15.4. Waiver 27
15.5. Costs 27
15.6. Notices 27
15.7. Deemed Service 28
15.8. Assignment 28
15.9. Governing Laws 28
15.10.GST 29
15.11.Precedence of Documents 29
15.12.Survival 29
Execution Page 30
Schedule 1 Statement of Requirements 32
1. Portrait for Historic Memorials Collection 3332
2. Submission and approval process - Sketch 3433
3. Submission and approval process - Portrait 3534
4. Consultation by DPS with others 3635
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Operative Provisions
The parties to this Agreement agree as follows:
Contract Particulars
No Particular Detail
1
Commonwealth
Details
Department of Parliamentary Services
Parliament House
CANBERRA ACT 2600
2
Artist Details
[Artist
Representative]
[Betina Fauvel-Ogdenitnsert name and address]
221B
The Esplanade,
St Kilda VIC 3182}
[Betina Fauvel-Ogdeninsert Artist name as the Artist
Representative if the Artist Details include the name of a legal
entity]
3 Contract
Commencement
Date
[20/03/2020insert date Contract is to commence eg, dd/mm/yy]
4 Subject Artistic Services related to the portrait of [insert portrait subject’s
name Clifton Pugh portrait of Gough]
6 Insurance
Public liability insurance for an insured amount of [$
1,000,000 insert amount] per occurrence and not less than [$
5,000,000 insert amount] in aggregate
Professional indemnity for an insured amount of [$
1,000,000 insert amount] per occurrence and not less than
[$ 5,000,000 insert amount] in aggregate.
Workers compensation as required by law
7
Address for
notices
Project Officer:
[Jacqueline Von Muppet
Director Art Collection
[e-mail]
insert name and/or position of person to receive
notices]
Parliament House
PO Box 6000
CANBERRA ACT 2600
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[[e-mail]
insert email address]
Artist:
[Bettina Fauvel Ogden insert name]
[221B The Esplanade, insert postal address]
[St Kilda VIC 3182insert physical address]
[[e-mail] insert email address]
8
Date for First
Submission of the
Sketch
[1st may 2020 insert date]
9
Date for First
Submission of the
Portrait
[1st June 2020insert date]
10 Date for
Submission of
framed final
Portrait
[1st September 2020 insert date]
11
Payment
Instalments:
Payment Instalment 1: $ <insert amount> (incl. GST)/$
$<$30,000 insert amount> (excl. GST)
Payment Instalment 2: $ <insert amount> (incl. GST/ )/$
<30,000insert amount> (excl. GST)
Payment Instalment 3: $ <insert amount> (incl. GST) )/$
<50,000insert amount> (excl. GST)
[insert as agreed]
12 Rates for the
Artist's travel and
accommodation
costs:
In accordance with Government non-SES rates for [ A three
sittings on the morning 20th and one sitting on the afternoon
of the 27th. The locartion is NSW Parliament HouseInsert
travel details].
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Conditions of Contract
1. Definitions and Interpretation
1.1. Definitions
1.1.1. Unless the context indicates otherwise, when used in this Contract each
word or phrase defined in this clause 1 has the meaning given to it in this
clause 1:
"Artistic Services" means all work that is required to be carried out to
enable the completion of the Portrait in accordance with this Contract.
“Artist’s Personnel” means any one or combination of the following of the
Artist as applicable to the circumstances:
a. employees;
b. officers;
c. agents; and
d. Subcontractors.
"Artist's Representative" means the person who will represent the Artist in
relation to the resolution of any disputes under clause 11, being:
(a) the person (if any) nominated by the Artist within five (5) Business
Days of a request by DPS; or
(b) absent any nomination, the Artist.
"Business Day" means each day except:
(a) Saturdays or Sundays; and
(b) public holidays observed by the Australian Public Service in the
Australian Capital Territory.
"Claim" includes any claim, action, proceeding, damage, loss, expense,
cost (including the cost of any settlement and legal costs and expenses on
a solicitor and own client basis), compensation, or liability, however arising
and whether present, unascertained, immediate, future, or contingent.
"Commonwealth" means the Commonwealth of Australia, and includes
DPS.
"Commonwealth Confidential Information" means information of the
Commonwealth that:
(a) is, by its nature, confidential;
(b) is designated by DPS as confidential;
(c) the Artist knows, or ought to know, is confidential;
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but does not include information, to the extent that:
(d) by law, it is required to be disclosed to either the public, or in a public
forum; or
(e) it is, or becomes, public knowledge other than by:
i. a breach of any undertaking by the Artist; or
ii. any other unlawful means.
"Contract" means this Contract for the Provision of Artistic Services,
including all of its component parts.
"Contract Material" means all material brought into existence or created
either by, or on behalf of, the Artist under this Contract or in contemplation
of this Contract (but before its commencement), including all sketches
made, photographs taken, the Sketch, the Portrait and any other Material
created as part of the Artistic Services.
"DPS" means the Department of Parliamentary Services, a Commonwealth
parliamentary department, having authority to represent, and act on behalf
of, the Commonwealth in relation to this Contract.
"DPS Representative" means the person who will represent DPS in relation
to the resolution of any disputes under clause 11, as advised to the Artist
by the Project Officer.
"Existing Material" means any Material in existence prior to the Contract
Date which is not owned by DPS and either:
(a) is used in the performance of the Artistic Services; or
(b) otherwise becomes comprised in Contract Material.
"GST" has the meaning given to that term by the GST law.
"GST law" has the meaning given to that term by the A New Tax System
(Goods and Services Tax) Act 1999.
“Independent Expert” means a person agreed between DPS and the Artist
or, failing agreement within 14 days of the commencement of negotiations
to identify a person, a person appointed by the President for the time being
of the Institute of Arbitrators and Mediators Australia at the request of
either party.
"Intellectual Property" includes:
(a) all copyright (including rights in relation to phonograms and
broadcasts);
(b) all rights in relation to inventions, plant varieties, trademarks
(including service marks), designs and circuit layouts; and
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(c) all other rights resulting from intellectual activity in the industrial,
scientific, literary or artistic fields,
but does not include:
(d) Moral Rights.
"Material" includes sketches, working drawings, portraits, paintings,
photographs and notes (stored by any means).
"Moral Rights" means the following non-proprietary rights of authors of
copyright Material:
(a) the right of attribution of authorship;
(b) the right of integrity of authorship; and
(c) the right not to have authorship falsely attributed.
"Parliament House Site Book" means the publication produced by DPS (as
amended from time to time) setting out the requirements of DPS for
persons having access to Parliament House including those relating to:
(a) conditions of access;
(b) working procedures;
(c) conduct;
(d) emergency evacuation procedures;
(e) incident notification and reporting; and
(f) an electronic copy of which is available at www.aph.gov.au.
"Personal Information" has the meaning given to that term by the
Privacy Act 1988.
"Portrait" means the portrait of the Subject to be painted by the Artist.
"Project Officer" means the person specified in the Contract Particulars, or
such other person as nominated, from time to time, by DPS.
"Security Procedures" means all laws, regulations, policies, and other
procedures of the Commonwealth relating to security, confidentiality,
access to Commonwealth premises, and information and protection of
Commonwealth property, and includes the requirements set out in the
Parliament House Site Book and the Commonwealth Protective Security
Policy Framework.
“Sketch” means the sketch to be produced by the Artist described in the
Statement of Requirements.
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"Statement of Requirement" means the content of Schedule 1 of this
Contract.
"Subcontractor" means any party engaged by the Artist to either carry out
any work, or do any other thing, in relation to the provision of the Artistic
Services.
"Taxable Supply" has the meaning given to that term by the GST law.
"Tax Invoice" has the meaning given to that term by the GST law.
“WHS Legislation” means:
(a) the Work Health and Safety Act 2011 (Cth) and the Work Health and
Safety Regulations 2011 (Cth); and
(b) any relevant corresponding WHS law as defined in section 4 of the
Work Health and Safety Act 2011 (Cth).
1.2. Interpretation
1.2.1. In this Contract:
a. headings are for convenience only and do not affect interpretation;
and, unless the context indicates a contrary intention:
b. words denoting the singular include the plural and vice versa;
c. a reference to "person" includes individuals, firms, companies,
associations (incorporated and not incorporated), and other entities;
d. references to clauses include references to subclauses and paragraphs
of those clauses;
e. references to any party to this Contract include its successors and
permitted assigns;
f. words denoting any gender include all genders;
g. reference to any legislation, or legislative provision, includes any
statutory modification, substitution or re-enactment of that legislation
or legislative provision; and
h. no rule of construction applies to the disadvantage of a party on the
basis that the party puts forward this Contract or any part of it.
2. Provision of the Artistic Services
2.1. Services
2.1.1. The Artist must provide the Artistic Services in accordance with the
Statement of Requirement and the terms and conditions of this Contract.
2.2. Standard of Artistic Services
2.2.1. In providing the Artistic Services the Artist must:
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a. exercise a standard of skill, care, and diligence that would be expected
of an expert professional provider of artistic services;
b. exercise the utmost good faith in the best interests of the
Commonwealth;
c. keep DPS fully and regularly informed about all matters either affecting,
or relating to, the provision of the Artistic Services; and
d. comply with all reasonable directions given by the Project Officer.
2.3. Limit of Authority
2.3.1. The Artist is authorised by DPS only to perform the obligations and
activities expressly set out and implied in this Contract.
2.3.2. Unless expressly authorised, the Artist has no authority to, and must not:
a. enter into any contracts, or other legal arrangements in either the
name, or on behalf, of the Commonwealth; or
b. take any act, or step, to either bind or commit the Commonwealth in
any manner.
2.3.3. The Artist is an independent party and is not, and must not purport to be, a
partner, representative, agent or employee of the Commonwealth.
2.4. Notice of Matters Impacting Upon Artistic Services
2.4.1. If the Artist becomes aware of any matter which:
a. is either likely to change, or which has changed, the performance by
the Artist of their obligations under this Contract;
b. either affects, or may affect, the provision of the Artistic Services; or
c. involves any error, omission, or defect, in the Statement of
Requirement
the Artist must promptly give written notice of that matter to DPS
containing:
d. particulars of the change, effect, error, omission, or defect;
e. its likely impact; and
f. the Artist's recommendation as to how to minimise its impact upon the
provision of the Artistic Services.
2.5. Report
2.5.1. The Artist must, at the request of DPS, submit a written report to DPS in a
form, and covering such matters in respect of the performance of the
Artist’s obligations under this Contract, as may be reasonably required by
DPS.
2.5.2. The Artist must promptly and fully respond to any enquiries which DPS
makes in relation to that report.
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2.6. Title and Risk
2.6.1. Title to the Contract Material will pass to DPS upon its creation.
2.6.2. The risk of loss and damage to the Contract Material will remain with the
Artist, and only passes to DPS upon delivery and acceptance of the
Contract Material by DPS.
3. Provision of Information and Assistance
3.1. Obligations of DPS
3.1.1. DPS shall, as soon as practicable:
a. make available to the Artist, all information relating to DPS’s
requirements for the provision of the Artistic Services;
b. use its best endeavours to arrange for sittings by the Subject to enable
the Artist to prepare and produce the Sketch and the Portrait; and
c. provide such other reasonable assistance to enable the Artist to
perform their obligations under this Contract.
3.2. Additional Information
3.2.1. If the Artist considers that any information is required to enable them to
perform their obligations under this Contract, and that information is not
provided by DPS, then:
a. the Artist must give notice in writing to DPS of the details of the
information and the reason why it is required; and
b. if DPS, acting reasonably, agrees that the information is required by the
Artist, DPS shall use its best endeavours to arrange the provision of
the required information.
4. Intellectual Property
4.1. Contract Material
Option A: To be included when IP in all Contract Material (including the Portrait) is to
be owned by the Commonwealth
Note to Drafters: This Option A should always be the first option presented to an Artist (with
Option B removed). Option B should only be considered and included where the
Artist has rejected the proposition of the Commonwealth owning all IP.
4.1.1. Intellectual Property rights in all Contract Material will, upon its creation, vest in
the Commonwealth.
4.1.2. Nothing in this Contract affects the Intellectual Property rights in any Existing
Material.
Option B: To be included when IP in the Portrait is to be owned jointly by the
Commonwealth and the Artist
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