DESIGN AND COMMISSION AGREEMENT

RECITALS A. The Commissioner wishes to commission the Artist to produce a design and the work described in the Schedule. B. The Artist has agreed to produce the design and the work described in the Schedule on the terms of this agreement. THE PARTIES AGREE AS FOLLOWS: STAGE 1: DESIGN DEVELOPMENT 1. THE WORK AND THE DESIGN 1.1. The Commissioner must pay the Artist the non-refundable Stage 1 fee for design and development (Design and Development Fee) specified in the Schedule. Upon receipt, the Artist must: a create a work which meets the description set out in the Schedule (Work); b provide a design of the Work in the form of a design (Design); and c provide the Design to the Commissioner by 2 weeks prior commencement date. 1.2. Within 5 calendar days of the Artist submitting the Design to the Commissioner under clause 1.1.c, the Commissioner must either: a accept the Design under clause 2; b request changes to the Design under clause 3; or c reject the Design under clause 4. 2. ACCEPTANCE OF THE DESIGN 2.1. The Commissioner may accept the Design submitted under clause 1.1.c by notifying the Artist in writing within the time specified in clause 1.2. 2.2. In accepting the Design, the Commissioner agrees: a on the location of the installed Work; b on the suitability of materials used for the Work, including but not limited to their durability with respect to the intended life of the Work; and c to complete any urgent maintenance to the Work resulting from incidents, including but not limited to vandalism and the removal of graffiti. 2.3. The Design is deemed accepted if the Commissioner does not either: a expressly accept the Design in writing under clause 2.1; b request changes to the Design under clause 3; or c reject the Design under clause 4. 3. CHANGES TO THE DESIGN 3.1. Prior to accepting the Design, the Commissioner may request a maximum of 2 changes to the Design. 3.2. The Commissioner: a must request changes under clause 3.1 by written notice specifying the changes (Amendment Notice), delivered to the Artist within the time specified in clause 1.2; b may not request a change that would cause the Design to be substantially different from the description in the Schedule, or the Design as first submitted provided the Design complies with the description in the Schedule; and c must pay the Artist a fee of $110 for each further Design produced and submitted by the Artist to incorporate the changes requested by the Commissioner. 3.3. Within 3 calendar days of receiving the Amendment Notice, the Artist must notify the Commissioner in writing of the time the Artist will require to make the requested changes to the Design. The time to make the requested changes must not exceed 5 calendar days from the date the Artist receives the Amendment Notice. 3.4. The Commissioner may accept the amended Design by notifying the Artist in writing within 3 calendar days of the Artist submitting the amended Design. Clause 2.2 applies. 3.5. The amended Design last submitted by the Artist to the Commissioner is deemed accepted if the Commissioner does not either: a expressly accept the Design in writing under clause 3.4; or b reject the Design under clause 4. 4. REJECTION OF THE DEISGN 4.1. The Commissioner may reject the Design or amended Design by notifying the Artist in writing within the time specified in clause 1.2 or clause 3.4. 4.2. If the Commissioner rejects the Design under clause 4.1: a this agreement will terminate under clause 21; and b the Commissioner shall not be required to pay to the Artist any amount further to the Design and Development Fee. STAGE 2: CREATION OF THE WORK 5. PREPARATION OF THE SITE 5.1. The Commissioner must arrange for the preparation of the surface on which the Work is to be carried out by either: a engaging the Artist to prepare the surface for the Preparation Fee; or b arranging for a qualified third party to prepare the surface, under the advice of the Artist. 5.2. If the Commissioner arranges for someone other than the Artist to prepare the surface, the defect liability outlined at clause 16 shall be void, and the Artist shall not be liability for any defect that may arise following the acceopteance of the Work in accordance with clause 7. 6. PRODUCTION OF THE WORK 6.1. The Artist must: a produce the Work in accordance with the Design; allow for 10% difference in final design as the work is handpainted and colours might slightly vary in brightness if the design was viewed and approved on a screen as the colours on a screen are light colours and brighter that paint colours. b ensure that the Work is produced in accordance with the timeline detailed in the Schedule (Timeline); and c notify the Commissioner in writing when the Work is completed. 6.2. Within 5 calendar days of receiving notification of the Work’s completion under clause 6.1.c, the Commissioner must either: a accept the Work under clause 7.1; or b request changes to the Work under clause 8. 6.3. The Commissioner acknowledges that the Artist will apply the Artist’s aesthetic skill and judgment in the creation of the Work. 7. ACCEPTANCE OF THE WORK 7.1. The Commissioner may accept the Work by notifying the Artist in writing within the time specified in clause 6.2. 7.2. The Work is deemed accepted if the Commissioner does not either: a expressly accept the Work in writing under clause 7.1; or b request changes to the Work under clause 8. 8. CHANGES TO THE WORK 8.1. Prior to accepting the Work, the Commissioner may request a maximum of 2 changes to the Work. 8.2. The Commissioner: a must request changes under clause 8.1 by written notice specifying the changes (Amendment Notice), delivered to the Artist within the time specified in clause 6.2; b may not request a change that would cause the Work to be substantially different from the Design; and c must pay the Artist a fee of $185 for each change to the Work completed by the Artist. 8.3. Within 2 calendar days of receiving the Amendment Notice, the Artist must notify the Commissioner in writing of the time the Artist will require to make the requested changes to the Work. The time to make the requested changes must not exceed 14 calendar days from the date the Artist receives the Amendment Notice. 8.4. The Commissioner may accept the amended Work by notifying the Artist in writing within 2 calendar days of the Artist submitting the amended Work. 8.5. The amended Work last submitted by the Artist to the Commissioner is deemed accepted if the Commissioner does not expressly accept the Work in writing under clause 8.4. COMMON PROVISIONS 9. DELAY 9.1. All stages of the Design and Work must be completed in accordance with the Timeline unless: a the parties agree otherwise in writing; or b there is a delay due to circumstances beyond the control of the Artist, including but not limited to the non-availability of necessary materials, shipping delays, injury or illness of the Artist, labour strikes, natural disasters or wet weather and extreme heat. 9.2. Where a delay occurs as a result of circumstances described in clause 9.1.b, each party agrees to take all reasonable steps to minimize its losses as a consequence of that delay. 9.3. If a delay under clause 9.1.b has extended more than 2 months, either party may terminate this agreement by 5 days written notice to the other party. 10. PAYMENT 10.1. The Commissioner agrees to pay the Artist the fee specified in the Schedule (Commission Fee) in instalments in accordance with the Schedule. 10.2. The Commissioner must pay interest on late payments at the rate of 10% p.a. Interest: a accrues from (and including) the date any unpaid amount is due and is payable to the Artist until the amount is paid in full; b is payable on demand; c accrues daily and is capitalised if not paid every 7 calendar days; and d is calculated on the basis of the actual number of calendar days on which interest has accrued and a 365 days year. 11. GOODS AND SERVICES TAX 11.1. The parties agree that all amounts payable under this agreement are exclusive of Goods and Services Tax (GST). 11.2. If a party is liable to pay GST in respect of any good or service supplied under this agreement, that party will invoice the other party for the GST amount payable for the good or service and will ensure that the invoice is a GST compliant invoice. 11.3. The party who receives the GST compliant invoice must pay the amount of GST invoiced at the same time as the amount payable under this agreement. 12. TITLE AND COPYRIGHT 12.1. The Artist warrants that the Design and the Work: a are the Artist’s original work; b do not, to the best of the Artist’s knowledge, infringe the copyright or moral rights of any third party; and c are unique works of the Artist developed exclusively for the Commissioner under this agreement. 12.2. Subject to clauses 13 and 21, title in the Design and the Work will not pass to the Commissioner until: a the Commissioner has accepted the Design and the completed Work; and b all payments due to the Artist under this agreement have been made. 12.3. The Artist retains all copyright in any material submitted or presented to the Commissioner under, or in relation to, this agreement, including but not limited to the Design and the Work. 12.4. The Commissioner may not use an image of, or reproduce, the Design and the Work without the Artist’s prior written consent. 13. DEATH OR INCAPACITY OF THE ARTIST 13.1. In the event of the death or incapacity of the Artist, the Commissioner will pay the Artist or the Artist’s estate any instalments of the Commission Fee outstanding at the date of death or incapacity. 13.2. In the event of the death or incapacity of the Artist prior to the acceptance of the Work by the Commissioner, the Commissioner will pay the Artist or the Artist’s estate an amount calculated as: a the amount of the Commission (including any instalment payable under clause 13.1) less any instalments already paid to the Artist; b less the reasonable costs of the Commissioner in respect of the completion of the Work by other artists or crafts persons. 13.3. The amount payable to the Artist or the Artist’s estate under clause 13.2 must not be less than the amount of any expenses incurred by the Artist in relation to the Work as at the date of the Artist’s death or incapacity which are not covered by instalments of the Commission Fee already paid to the Artist or payable under clause 13.1. 13.4. Subject to the payments in clauses 13.1 or 13.2, the Commissioner: a will become the owner of the Work in the condition in which the Work stands at the date of death or incapacity; b may, in consultation with the Artist or the Artist’s estate, engage another artist or crafts person to complete the Work in accordance with the Design. 13.5. If the Commissioner engages another artist or crafts person to complete the Work: a copyright in the Work will belong jointly to the Artist or the Artist’s estate and the other artist or crafts person who completes the Work; and b the Artist or the Artist’s estate may demand the removal of any notice displayed with the Work which identifies the Artist with the Work. 14. RISK OF LOSS OR DAMAGE 14.1. The Commissioner will bear the risk of loss or damage after installation of the Work and will take out and maintain insurance against loss or damage for the period until title to the Work passes to the Commissioner under clause 12.2. 15. INSURANCE 15.1. The Commissioner will be responsible for public liability insurance cover and all other liabilities. 15.2. The Commissioner will unconditionally indemnify and keep indemnified the Artist against all losses, liabilities, costs and expenses (including reasonable legal expenses as between solicitor and client) arising out of or in relation to any injury, death, loss or damage suffered by any third party during the production and installation of the Work on the Site or which arise for any reason following installation of the Work. 16. DEFECTS LIABILITY 16.1. A defects liability period will extend for a period of 12 months from the date of installation of the Work. 16.2. The Artist will rectify, without charge to the Commissioner, latent defects in the Work that become apparent during this period. 16.3. This clause will not apply to damage or deterioration which results from fair wear and tear, the inherent characteristics of the materials used to create the Work or the Site’s environment. 16.4. The rights granted under this clause are in addition to any rights that a party may have at law. 17. ATTRIBUTION 17.1. Subject to clauses 13.5.b and 19.2, the Commissioner will permanently display a notice in a reasonably prominent position near the installed Work, which identifies the Artist and the Work as follows: “Art by Mieke” (with logo) painted on the wall by the Artist. 18. MAINTENANCE 18.1. Within 7 days of the completion of the Work on the Site, the Artist will provide the Commissioner with a written manual (if applicable) containing comprehensive instructions for the proper cleaning, operation and maintenance of the Work (Manual). 18.2. The Manual will include: a a description of the materials used and any services or equipment in the Work as well as their mode of operation; b equipment operating procedures and supplier’s names, addresses and telephone numbers; c an inspection, testing and maintenance program detailing the routine required to maintain the Work throughout its intended lifespan; d “as installed” drawings for the Work and all related equipment and services; and e a list of major subcontractors with appropriate contact details. 18.3. The Commissioner will ensure that the Work is properly maintained and protected from damage in accordance with the Artist’s instructions in the Manual. 19. REPAIRS AND RESTORATION 19.1. The Commissioner must give the Artist first option to carry out any repair or restoration to the Work by written notice to the Artist. This option will lapse if the Artist does not signify an intention to carry out any repair or restoration work within 14 calendar days after receiving the Commissioner’s notice. The Commissioner will pay the Artist a fee for repair and restoration work undertaken by the Artist at $110 per hour. 19.2. The Artist reserves the right to demand the removal of any notice displayed with the Work which identifies the Artist with the Work if the Artist does not carry out the Work’s repairs or restoration. 20. ALTERATION, RELOCATION OR RESALE 20.1. The Commissioner will not destroy, damage, alter or modify the Work in any way whatsoever without the Artist’s prior written consent. 20.2. The Commissioner may remove or relocate the Work provided that the Commissioner complies with the procedures set out in section 195AT of the Copyright Act 1968 (Cth). 20.3. If the Commissioner breaches clauses 20.1 or 20.2, the Artist may, at the Commissioner’s expense, demand that the Commissioner remove any notice displayed with the Work which identifies the Artist with the Work. The remedy under this clause is in addition to any other remedies available to the Artist. 20.4. If the Commissioner intends to sell or otherwise dispose of the Work, the Artist or the Artist’s estate will be given the first option to make a suitable offer for the Work. 20.5. If the Commissioner sells the Work to a third party during the term of the Artist’s copyright in respect of the Work, the Commissioner agrees to pay the Artist (or the Artist’s estate) a resale royalty: a in accordance with any applicable artists resale royalty scheme in effect under Australian law at the time of such sale; or b if Australian law does not provide for such a royalty at the time of sale, in an amount of 5% of the sale price exclusive of GST up to a maximum amount of $20,000. 21. TERMINATION 21.1. The Artist may terminate this agreement immediately by written notice to the Commissioner if the Commissioner: a is more than 14 calendar days late in making any payment under clause 9.2; or b is otherwise in breach of the Commissioner’s obligations under this agreement and: i. the breach is incapable of remedy; or ii. the Commissioner fails to remedy the breach within breach within 14 calendar days of the Artist’s written notice of the breach. 21.2. In the event of termination under clause 9.3 or 21.1, the Artist will be entitled to receive and retain payment of: a all instalments of the Commission Fee due in the period up to the date of termination; and b if the Work has not been completed, the amount of any reasonable expenses incurred by the Artist in relation to the Work as at the date of termination which are not covered by instalments of the Commission Fee already due to the Artist. 21.3. This agreement is automatically terminated: a if the Commissioner becomes insolvent, is declared bankrupt, has a liquidator appointed or goes into administration, voluntary or otherwise; or b following rejection of the Design under clause 4. 21.4. If the Artist commits a breach of this agreement, the Commissioner must notify the Artist of the breach in writing. The Artist must remedy the breach within 14 calendar days of the notice (Notice Period). The Commissioner may terminate this agreement immediately by written notice to the Artist if: a the breach is incapable of remedy; or b the Artist fails to remedy the breach within the Notice Period. 21.5. If this agreement is terminated or terminates under clause 4.2.a, 9.3, 21.1 or 21.4, the Artist will retain title and copyright to the Design and the Work. The Artist will have the sole right to complete, exhibit and sell the Design and the Work. 22. DISPUTES 22.1. If a dispute or disagreement (Dispute) arises between the parties in connection with this agreement: a one party must notify the other party(s) in writing about the Dispute (Notice of Dispute); and b no party may start any litigation or arbitration in relation to the Dispute until the parties have complied with this clause. 22.2. The parties should meet within 14 calendar days after receipt of the Notice of Dispute and hold good faith discussions to attempt to resolve the Dispute. 22.3. If the Dispute is not resolved within 28 calendar days after receipt of the Notice of Dispute, the parties agree to submit the Dispute to mediation according to the Arts Law Centre Mediation guidelines current at that time (Guidelines). These Guidelines are part of this agreement. 22.4. If the parties are not able to agree to a mediator, the Arts Law Centre must appoint a mediator. 22.5. The parties must continue to perform their respective obligations under this agreement despite the existence of a Dispute. 22.6. Nothing in this clause 21 will impact on either party’s rights to terminate under clause 21 of this agreement. 23. GENERAL PROVISIONS 23.1. The parties acknowledge that the Artist is an independent contractor and that nothing in this agreement creates any relationship of partnership or employment between the parties. 23.2. A notice required to be given under this agreement may be delivered by hand, or sent by pre-paid post or fax to the address of the party indicated at the top of this agreement. Notices are taken to have been served when received, or within 2 business days of having been sent, whichever occurs first. 23.3. Subject to clause 13, neither party may assign, subcontract, novate or otherwise divest this agreement or any of the rights or obligations under this agreement without the other party’s prior written consent. This consent must not be unreasonably withheld. 23.4. Subject to clause 23.6, this agreement is the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to this subject matter is replaced by this agreement and has no further effect. 23.5. Nothing in this agreement transfers or excludes any applicable cultural rights in favour of Australian Indigenous people that may be implemented under Australian law. 23.6. This agreement may only be modified by a written amendment signed by the parties. 23.7. Invalidity of any clause of this agreement will not affect the validity of any other clause except to the extent made necessary by the invalidity. 23.8. This agreement is governed by the law in force in Queensland. The parties submit to the jurisdiction of the courts of that State and any court competent to hear appeals from those courts. EXECUTED AS AN AGREEMENT