NFC Group Pty Ltd
This agreement is BETWEEN:
NFC Pty Ltd (ACN 607 938 689) of 5/171, Wattle Valley Road, Camberwell, in the State of Victoria (the “Company”);
The presenter who has agreed to the terms and conditions by marking the T&Cs while submitting their talk or workshop proposal for the Australian Testing Days 2017 conference.
(collectively referred to as the “Parties”).
A. The Company offers users with an opportunity to connect, learn and discuss issues which relate to the software testing industry by holding events such as training courses, workshops and conferences.
B. The Company wishes to retain the Services of the Presenter for the purpose of presenting at the software testing training courses and conferences on the terms and conditions set out in this Agreement.
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
In this Agreement the following terms shall, unless the context otherwise requires, have the following meanings:
Agreement means this agreement (including any Schedules) and any document that varies or supplements it;
Business Day means any day except a public holiday or a Saturday or Sunday in Melbourne, Australia;
Event means the software testing training courses and/or conferences as specified in Item 3 of the Schedule;
Fee means the fee specified in Item 5 of the Schedule;
Force Majeure means an event or circumstance that, despite a party’s reasonable efforts and without its fault or negligence, it is unable to control and includes any act of God, war and other hostilities, fire, flood, strikes, lock-outs, delays in transport, breakdowns in machinery, or restrictions or prohibitions or any other acts by any government or semi-government authority;
GST means any goods and services tax imposed under A New Tax System (Goods and Services Tax) Act 1999 (Cth) and A New Tax System (Goods and Services Tax) Regulations 1999 (Cth) and related legislation, or a tax of a like or analogous nature that is imposed, assessed or levied in relation to any supply made of goods, services or any other thing;
Schedule means a schedule to this Agreement;
Services means the services specified in Item 2 of the Schedule or as agreed between the Parties from time to time.
Except to the extent that the context otherwise requires:
(a) a reference to any legislation is a reference to that legislation as modified or re-enacted from time to time, and includes all regulations and statutory instruments issued under it;
(b) a reference to dollars or $ is to Australian currency; and
(c) if there is any inconsistency between this Agreement, the Schedules or any other document or attachment incorporated by reference, to the extent of any such inconsistency, the order of priority will be:
(i) this Agreement (except for the Schedules);
(ii) the Schedules;
(iii) any attachment or document incorporated by reference.
2.1. The Company engages the Presenter and the Presenter agrees to provide the Services at the Event at the Fee, upon the terms and conditions of this Agreement.
2.2. Any changes to the Event, after the date of this Agreement, will be subject to the Parties’ mutual written approval.
3. PRESENTER’S OBLIGATIONS
3.1. The Presenter agrees that he or she will:
(a) if applicable, obtain all necessary visa so that the Presenter can perform the Services and comply with any visa conditions that apply to the Presenter; and
(b) comply with any law or regulation governing or applicable to the provision of the Services to the Company, including all insurance and taxation requirements.
3.2. With respect to the presentation materials, the Presenter warrants that the presentation materials and any contents therein are either their own or do not infringe any intellectual property rights of another party. Where the presentation materials and any contents therein are not their own, the Presenter agrees that he or she will acknowledge the sources of information or ideas used.
4. COMPANY’S OBLIGATIONS
4.1. The Company will provide the Presenter the Presentation Equipment listed in Item 4 of the Schedule for the provision of the Services.
So long as the Presenter is not in breach of any terms and conditions of this Agreement, the Company will pay the Presenter the Fee (if agreed) at a time and manner specified in writing, less any amounts owed to the Company under this Agreement.
The Presenter shall not claim reimbursement from the Company for any expenses, unless otherwise agreed in writing between the Parties in Item 6 of the Schedule.
All amounts and other consideration referred to in this Agreement are exclusive of GST.
6. CANCELLATION AND TERMINATION
6.1. Inability of the Presenter to attend
If the Presenter is unable to attend the Event for any reason other than because of an event of Force Majeure and that the Event is subsequently cancelled, then the Presenter must pay the Company the full amount of the Fee which the Company has paid to the Presenter plus a further 50% of the Fee paid as damages for the anticipated loss and damage which may be sustained by the Company.
6.2. Force Majeure
If a Force Majeure occurs, which means that all or part of the Event cannot proceed, then the Company will cancel the Event. If this occurs, then the Presenter must pay the Company back any of the Fee that the Company has paid to the Presenter.
(a) If the Company cancels the engagement for any reason other than that contemplated by clauses 6.1, 6.2 and/or 6.4:
(i) no Fee is payable if the Company has given the Presenter more than one (1) months’ notice of the cancellation; or
(ii) the full Fee is payable to the Presenter if the Company cancels the engagement within one (1) months of the date of the Event.
(b) If the Presenter cancels the engagement for any reason other than that contemplated by clauses 6.1, 6.2 and/or 6.4:
(i) no Fee is payable if the Presenter has given the Company more than one (1) months’ notice of the cancellation; or
(ii) the full Fee is refundable to the Company if the Presenter cancels the engagement within one (1) months of the date of the Event.
(c) Neither party can claim damages from the other in relation to any cancellation pursuant to clauses 6.1, 6.2 or this 6.3 and each will mitigate costs.
(a) Either party may terminate this Agreement by written notice to the other party in the event of the other party’s default or insolvency so long as the non-defaulting party has first provided notice to the other party of the default and the default (if capable of remedy) has not been remedied within five (5) Business Days.
(b) Termination will not affect the accrued rights or remedies of any party.
7. GRANT OF RIGHTS
7.1. The Presenter agrees that:
(a) the Company can use the Presenter’s name, photograph and presentation materials to promote the conference;
(b) the Company will own all right, title and interest (including, without limitation, the copyright) in the Event and the Presenter’s performances embodied thereon; and
(c) upon the performance of the Presenter’s Services, any copyright material created automatically vests in the Company for the full period of copyright, and all renewals and extensions of copyright.
7.2. The Company is entitled to:
(a) photograph, film or make any audio or visual recording of the Event;
(b) make copies of the Presenter’s presentation materials and distribute the presentation materials; and
(c) exploit the audio or visual recording of the Event and the presentation materials in all media now known or invented in the future, as the Company or its licensees or licensees, in their sole discretion, will determine.
7.3. Moral rights
(a) The Presenter consents to the Company doing any or all acts or omissions which would otherwise be an infringement of the Presenter’s moral rights as a performer.
(b) The consent in paragraph (a) is given for the benefit of the Company (including its licensees and assignees) and for the benefit of future owners of copyright in the recording of the Presenter’s performance.
8.1. Each party must indemnify the other from and against all actions, claims, demands, costs, losses, and damages (including reasonable legal costs and expenses) which may be made against or incurred by the first party arising in connection with:
(a) the infringement or alleged infringement of any intellectual property rights by the second party in connection with the provision of the Event;
(b) any defamation or alleged defamation by the second party in connection with the Event; or
(c) any act or omission by the second party or its employees, contractors or agents resulting in loss of, or damage to, property of the first party.
8.2. Each party’s liability to indemnify the other party under this clause 8 shall be reduced proportionally to the extent that any act or omission by the other party contributed to the loss.
9. LIMITATION OF LIABILITY
9.1. Both parties agree that neither party will be liable for any indirect or consequential loss including loss of business opportunity, arising out of or in connection with this Agreement, even if such party has been advised of (or knows or should know of) the possibility of such damages.
9.2. All opinions, statements and/or views expressed by the Presenter are of their own. The Company shall not be responsible or liable in any manner for any statements expressed by the Presenter in connection with Services.
10. DISPUTE RESOLUTION
10.1. A party will not start Court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of this Agreement (“Dispute”) unless it has complied with this clause.
10.2. A party claiming that a Dispute has arisen must notify the other party in writing, giving details of the Dispute.
10.3. During the sixty (60) days period after a notice is given under clause 10 (or longer period agreed in writing by the Parties) (“Initial Period”) each party to the Dispute must use its best efforts to resolve the Dispute.
10.4. If the Parties are unable to resolve the Dispute within the Initial Period, at the request of any party, each party agrees that the Dispute must be referred for mediation with a mediator appointed by the President of the Law Institute of Victoria where the Parties are unable to reach an Agreement on the elected mediator and:
(a) the mediator must be agreed on and paid for equally by the Parties; and
(b) the mediation must be held in Melbourne, Victoria at a venue agreed on and paid for equally by the Parties.
10.5. A mediator may not make a decision that is binding on a party unless the Parties have so agreed in writing.
10.6. In the event that the Dispute is not resolved at the conclusion of the mediation, either party can proceed to institute legal proceedings.
10.7. Any information or documents disclosed by a party under this clause:
(a) must be kept confidential; and
(b) may not be used except to attempt to resolve the Dispute.
10.8. Each party must bear its own costs of complying with this clause and the Parties must bear equally the costs of any mediator engaged.
11. GENERAL PROVISIONS
11.1. The terms of this Agreement and all confidential information, material and technology disclosed or provided in any form by either party must be kept confidential except for the purpose of obtaining professional advice or as required by law.
11.2. This Agreement constitutes the entire Agreement between the parties regarding the matters set out in it and supersedes any prior representations, understandings or arrangements made between the parties, whether orally or in writing.
11.3. No part of this Agreement may be assigned, varied or considered waived except by a later written document executed by all Parties.
11.4. Nothing in this Agreement creates a joint venture, partnership, or the relationship of principal and agent, or employee and employer between the Parties.
11.5. The laws applicable in Victoria govern this Agreement. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and any courts competent to hear appeals from those courts.
Each party warrants to the other party that this Agreement creates legal, valid and binding obligations, enforceable against the relevant party in accordance with its terms;