TERMS AND CONDITIONS OF ENGAGEMENT (CONTRACTOR)
- HOOTZMAN TRUST PTY LTD trading as MUSOMAGIC ABN 55 786 616 771 (MusoMagic) has provided the Contractor (you or You) with a quote or proposal setting out proposed services relating to delivering music workshops and creation of music videos (Services) and applicable fees or charges (Proposal), which together with these terms and conditions forms a binding and entire agreement (Agreement) between you and MusoMagic.
Role of the Contractor
- You will be responsible for all direction and provision of your Services in order to provide all agreed deliverable elements and materials to MusoMagic, and you will be required to work closely with MusoMagic on identification of suitable deliverable elements and materials, including workshop requirements, as set out in the Proposal or any annexure or schedule to it. You will be required to provide such other services as may be reasonably required by MusoMagic from time to time in order to properly provide the agreed deliverable elements and materials. You will deliver to MusoMagic personnel as notified to you.
- You will be required to deliver the Services to the best of your ability at all times, follow all reasonable and lawful directions given to you by MusoMagic, including those set out in any code of conduct presented to you by MusoMagic, or as agreed to in any contractor induction, and use your best endeavours to promote and protect the interests of MusoMagic. You will keep MusoMagic informed at all times of any changes to your personal details as set out in the Proposal.
Insurances and Indemnity
- You accept all risk in relation to the provision of the Services and release and discharge MusoMagic from any loss, damage or liability (including indirect, special or consequential losses) arising in relation to your provision of the Services, including any claim by a third party arising out of or relating to the Services, for any reason whatsoever, except to the extent any legislation applies and cannot be excluded, and you also indemnify MusoMagic against all loss, damage or liability, incurred or suffered by you, MusoMagic or any third party or entity, including as a result of your negligence or failure to perform obligations under the Agreement. This clause applies on and from the creation of a Proposal, is a continuing separate obligation and survives termination. To avoid doubt, all Proposals and Services are performed at your sole risk, and you will be solely liable and responsible for all or any loss or damage that arises as a result of the Services, including any indirect or consequential loss or damage and any legal fees, except as may be required by law.
- Without limiting the foregoing, you are responsible for insuring yourself and your equipment against loss or damage to property or third parties, sickness, accident or death sustained while travelling to, from, or while at, places where it is required to provide Services, including professional indemnity and public liability insurance of at least A$1,500,000 per claim (or any higher or further cover as notified to you in writing) and MusoMagic requires an up to date copy of all insurances for its records.
Confidential Information and Intellectual Property
- You acknowledge that in the course of providing the Services or otherwise, you may obtain access to, or become aware of, Confidential Information (described in clause 6 below) that is of commercial value to MusoMagic, and which is owned by and will at all times remain the property of MusoMagic. You acknowledge and agree that you will not, during the term of the Agreement and at any time thereafter, except with the prior written consent of MusoMagic or as is permitted or required by law:
- use or disclose the Confidential Information for a purpose other than performing, and to the extent necessary to perform, the Services under this Agreement; and
- modify, reverse engineer or make copies, notes or records of the Confidential Information for any purposes other than in connection with the performance of the Services under this Agreement.
- For the purposes of this Agreement, Confidential Information means all information belonging to MusoMagic and all information that is in fact, or should reasonably be regarded as confidential to MusoMagic whether oral, graphic, written or in any other form, that is not generally available to the public at the time of the disclosure other than by reason of a breach of this Agreement. It includes, but is not limited to, all information regarding the current or future business interests, operations, methodology or affairs of MusoMagic, including client lists, trade secrets, client details, pricing structures, know-how, financial information, and planning or marketing procedures.
- You must promptly, upon termination of this Agreement or at the request of MusoMagic at any time, disclose and deliver up to MusoMagic all Confidential Information in your possession, custody or control.
- You acknowledge and agree that MusoMagic owns, except with the prior written consent of MusoMagic all intellectual and industrial property rights in any Confidential Information, whether tangible or intangible and whether in documentary or computerised form and in any modifications and enhancements to that information and all intellectual and industrial property rights in any inventions or works created or contributed to by you in the course of delivering the Services, including in any music or music video (each, a Work), absolutely and without further payment to you, and you must not use these without prior written consent.
- Must immediately disclose to MusoMagic (and to no other person) all the details of any inventions or works undertaken, created or developed by you in performing the Services;
- Irrevocably assign to MusoMagic all present and future right, title and interest in all intellectual and industrial property rights in any Confidential Information, inventions and works created or contributed to by you, including a Work, as both a present and future assignment of rights, with this clause effective for assignment without further action;
- Consent to the abovementioned Work, Confidential Information, inventions and works being changed, copied, edited, added to, taken from or adapted in any manner or context by MusoMagic and any person authorised by the MusoMagic to do so, for any purpose whatsoever notwithstanding that any such conduct may amount to derogatory treatment of works, or breach of rights of attribution, within the meaning of the Copyright Act 1968;
- Must, both during and after the term of this Agreement, do all such acts and things as MusoMagic may reasonably request to secure to MusoMagic ownership or registration rights in the intellectual and industrial property rights in any of the Work or Confidential Information, inventions and the works, and you grant to MusoMagic the right to use your name to obtain any protection of these rights;
- Must not both during and after the term of this agreement, engage in any conduct that may damage MusoMagic ‘s rights under this Clause;
- Have the right to use any Work for your own marketing and promotional purposes only, upon prior written consent from MusoMagic management.
- Agree that MusoMagic, as owner of all copyright in any Work, has the right to use any Work produced by it for MusoMagic’s own marketing, showreel and promotional purposes;
- Agree and acknowledge that in the course of your engagement, you may be filmed, photographed and recorded and you now consent to this and to MusoMagic using any film, photo or recording of you (including any copyright or similar work of yours that is included in it) for MusoMagic’s or its clients purposes in any way, without any further payment or consideration to you, and you agree MusoMagic owns all right and title in that film, photo or recording without any encumbrance.
All obligations under this Clause 9 survive the termination of this Agreement.
- You agree that if, in the course of your engagement, any photographs or images are created or taken by You, or any third party on your behalf, of any work or services of a MusoMagic workshop, you will use best endeavours to ensure MusoMagic is credited in any publication or use of the photograph or image as follows:
“[YOUR NAME] for MusoMagic”
and will not credit any other person and you will use your best endeavours to ensure that any third parties also comply with this credit obligation. To avoid doubt, this Clause does not affect any limits on use under Clause 9.
- You will provide your Services to MusoMagic under this Agreement on a non-exclusive basis but will when engaged provide your services to Muso Magic on a first priority basis.
- Unless you first obtain MusoMagic’s written consent, you agree that for a period of twelve (12) months after the termination of this Agreement, however occasioned, you will not, directly or indirectly, on your own account or for or on behalf of any entity:
- canvass, solicit or endeavour to entice away from MusoMagic any person, company, business or enterprise who is or was in the twelve (12) months prior to the termination of the Agreement a client, customer, contractor, sub-contractor or otherwise related to MusoMagic with whom you had any contact of any kind in the course of the engagement, other than in relation to any work or services you may separately provide to such person or entity which it is expressly agreed falls outside of your work for MusoMagic ; or
- engage or employ or attempt to engage or employ any person or entity who was an employee or contractor of MusoMagic during your engagement by MusoMagic ; or
- counsel, procure or otherwise assist any person to do any of these acts,
- it being agreed that each of the restrictions in this Clause are reasonable in extent having regard to MusoMagic ’s legitimate commercial or business interests and yours.
Payment and Status as Contractor
- In consideration for providing the Services, you will be paid the fee or rate as set out in the Proposal applicable to the Services provided, inclusive of GST (Fee). You will be paid the Fee within 14 days upon receipt of your tax invoice, which must include your banking details and comply with any reasonable requirements of MusoMagic . Unless otherwise agreed in writing, the Fee is inclusive of disbursements and you will not be reimbursed for any other expenses incurred by you.
- You acknowledge and agree that you are not entitled to paid leave or sick or similar leave.
- MusoMagic will make superannuation contributions on your behalf as per the new tax laws governed by the ATO. The total quoted fee will include a 9.5% superannuation contribution, paid directly to your nominated fund. If no fund is nominated, MusoMagic will nominate a fund on your behalf.
Termination and General
- MusoMagic may terminate this Agreement at any time by providing you two (2) weeks’ notice in writing including but not limited to if You fail to perform any obligations hereunder. MusoMagic may at its option make payment in lieu of all or part of the notice period based on the Fee for work done over that time. In addition, if you cancel or withdraw at any time prior to the event start date set out in the Proposal, you must pay MusoMagic for any costs, fee or expenses incurred by MusoMagic at that time.
- If either party fails to do anything it is entitled to under this Agreement that does not amount to a waiver of that right. Any waiver or variation must be in writing. If any clause or part of a clause is illegal or unenforceable, it is to be treated as removed, but the rest of this document is not affected. Any references to a party include their agents, officers, employees or assigns.
- The Agreement is governed by laws and jurisdiction of Victoria.