Legal Analysis: Contract for Artistic Services, Australia, DPS

This document presents a detailed contract for the provision of artistic services between the Commonwealth of Australia, represented by the Department of Parliamentary Services (DPS), and an artist, [Bettina Fauvel Ogden]. The contract outlines the scope of work, which includes the creation of a portrait for the Historic Memorials Collection. It specifies the services, standards of artistic work, and obligations of both parties, including the provision of information and assistance. The contract also addresses critical legal aspects such as intellectual property rights, confidentiality, privacy, and insurance requirements. It further details payment terms, dispute resolution mechanisms, termination clauses, and adherence to statutory and security requirements. The document includes contract particulars, conditions, definitions, and schedules outlining the statement of requirements, submission and approval processes, and consultation procedures, ensuring a comprehensive framework for the artistic commission.

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
[Bettina Fauvel Ogden]
[223 456 331 92]
1

CONTRACT FOR THE PROVISION OF ARTISTIC SERVICES
Date
This Agreement is dated [14 March].
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. [Bettina Fauvel Ogden] [223 456 331 92]
(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.
2

Contract Particulars 6
Conditions of Contract 8
1. Definitions and Interpretation 8
1.1. Definitions 8
1.2. Interpretation11
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
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
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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 DPS20
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
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 32
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2. Submission and approval process - Sketch 33
3. Submission and approval process - Portrait 34
4. Consultation by DPS with others 35
5

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 [Bettina Fauvel Ogden and My registered address is 221B The
Esplanade, St Kilda VIC 3182]
3 Contract
Commencement
Date
[1 May]
4 Subject Artistic Services related to the portrait of [insert procurement
of the portrait of prime minister]
6 Insurance
Public liability insurance for an insured amount of [$ 1 million
per occurrence and not less than [$5 million] in aggregate
Professional indemnity for an insured amount of [$ 1 million ]
per occurrence and not less than [$5 million] in aggregate.
Workers compensation as required by law
7 Address for notices
Project Officer:
[Jacqueline von Muppet]
Parliament House
PO Box 6000
CANBERRA ACT 2600
Artist:
[Bettina Fauvel Ogden]
[egistered address is 221B The Esplanade, St Kilda VIC
3182]
[[e-mail]]
6

8
Date for First
Submission of the
Sketch
[1 May]
9
Date for First
Submission of the
Portrait
[1 June]
10 Date for Submission
of framed final
Portrait
[1 September]
11
Payment
Instalments:
Payment Instalment 1: $ <insert amount> (incl. GST)/
<$30,000> (excl. GST)
Payment Instalment 2: $ <insert amount> (incl. GST/ )/
<$30,000> (excl. GST)
Payment Instalment 3: $ <insert amount> (incl. GST) )/
<$50,000> (excl. GST)
12 Rates for the Artist's
travel and
accommodation
costs:
In accordance with Government non-SES rates standard
rates for your airfare and accommodation
7

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
()c all other rights resulting from intellectual activity in the industrial, scientific,
literary or artistic fields,
but does not include:
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()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.
"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.
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"Tax Invoice" has the meaning given to that term by the GST law.
“WHS Legislation” means:
()g the Work Health and Safety Act 2011 (Cth) and the Work Health and Safety
Regulations 2011 (Cth); and
()h 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:
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.
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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.
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:
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