TERMS AND CONDITIONS

Designer Participation Agreement:  

Agreed terms 

Use of Collection 

1. MFF agrees to provide to the Designer, and the Designer appoints MFF to supply to the Designer, the Fashion Services in respect of the Event on the terms of this Agreement.  

   Term 

2. This Agreement commences on the Commencement Date (date of Participation Agreement submitted) and continues until the Expiry Date (date Collections are collected), unless terminated earlier in accordance with its terms.  

   Provision of Collection  

   In consideration of MFF providing the Fashion Services, the Designer must supply the Collection for use in the Event by MFF, by the appointed date. 

   Obligations of Designer 

3. In fulfilling its obligations under this Agreement, the Designer must: 

4. comply with all applicable Laws for the time being in force; 

5. not do anything to detract, hinder or damage: 

6. the reputation of MFF or the Festival; or 

7. the relationship of MFF with any of its partners, sponsors, suppliers or other designers; 

8. comply with MFF’s Event Policies; and DEI Policy; and  

9. cooperate with MFF and its officers, employees, agents and contractors; and  

10. provide MFF with such assistance as is reasonably required (as determined by MFF) in order for MFF to provide the Fashion Services and deliver the Event. 

    Obligations of MFF 

11. Subject to the supply of the Collection by the Designer, MFF must provide the Fashion Services in accordance with this Agreement. 

    Group Show 

12. If the Event relates to a Group Show, then this clause 6 applies. 

13. Subject to clause 6(f), MFF will be responsible for the costs associated with the production, programming and direction of the Event.  

14. MFF will have full control and discretion in respect of the production, programming and direction of the Event, including the determination of: 

15. the manner in which any item of the Collection is used during the Event; 

16. the programming and sequencing of the Event; 

17. the content of the Event; 

18. the number of designers participating in the Event; and 

19. the music, screen, lighting and any other production requirements of the Event.  

20. The Designer may submit to MFF requests for additions or variations to the programming or production of the Event (Variation). 

21. MFF will determine in its sole discretion whether to accept or reject any Variation.  

22. If MFF accepts a Variation, the Designer will be responsible for all costs associated with implementing or otherwise effecting that Variation.  

23. For the avoidance of doubt, nothing contained in this Agreement requires MFF to pay to the Designer any costs associated with the design or manufacture of the Collection.  

    Ticketing 

24. Subject to the Designer complying with its obligations under this Agreement, the Designer will be allocated the Tickets outlined in the Designer Handbook. 

25. The use of the Tickets by the Designer or any guest of the Designer will be subject to the Ticketing Terms and Conditions.  

26. Delivery and collection 

27. The Designer must arrange and pay for the delivery of the Collection to the Storage Facility (during ordinary trading hours) within the allocated drop off period. 

28. Within the allocated collection period, the Designer must arrange (during ordinary trading hours) for the collection of the Collection.  

29. MFF will not be liable for any loss, cost, expense or inconvenience of any kind, incurred, sustained or suffered by the Designer as a result of any failure by MFF to have the Collection or any part of it ready for collection at the Storage Facility.  

30. If any item of the Collection is not collected within the timeframe specified under clause 8(b), or within such longer timeframe as notified by MFF to the Designer, the Designer must on demand pay MFF's reasonable costs for storing the Collection until such time as the entire Collection has been collected. 

31. The Designer acknowledges that it is solely responsible for any damage, destruction or loss caused to the Collection as a result of the shipping, delivery or collection of the Collection to or from the Storage Facility (including any damage caused during the unloading, packing or loading of the Collection). 

32. The Designer must inspect the Collection within 24 hours of collecting the Collection and immediately notify MFF on any damage to the Collection. 

33. If the Designer fails to notify MFF of any damage to the Collection in accordance with clause 8(f), the Collection will be deemed to be free from any damage or loss. 

    Marketing and promotion 

    Marketing and promotion of the Event 

    MFF must: 

34. provide the Designer with the Photography Package following runway (within a 48-hour period); include the details of the Event and the Collection in the Official Program; and include details of the Designer and the Event on the MFF website.

35. MFF will be entitled in its sole discretion to determine the categorisation, placement and prominence given to the Designer and the Event in any marketing activities undertaken by MFF.  

36. The Designer grants to MFF during the Term and for a period of 2 years after the termination or expiry of the Agreement, a non-exclusive, transferable, irrevocable licence to use the Designer Material in relation to the promotion and advertising of the Event, MFF and the Festival (Designer Material Licence). 

    The Designer represents and warrants that: 

37. it is the sole legal owner of the Designer Material; the Designer Material does not breach the Intellectual Property Rights of any third party;  the use of the Designer Material by MFF will not infringe the Intellectual Property Rights of any third party; and it is authorised to grant the Designer Material Licence.  

38. The Designer grants to MFF the right to assign, sub-licence, subcontract or otherwise deal with its rights to use the Designer Material. 

39. Without limiting any moral rights the Designer may have, MFF may without first obtaining the consent of the Designer crop, add or otherwise alter the Designer Material (including in relation to colour, brightness, contrast or effect). 

40. Marketing and promotion by the Designer 

41. The Designer must actively market and promote its involvement in the Event in accordance with this clause 9.2. 

42. The Designer must submit any promotional material and website pages which refer to the Designer's participation in the Festival or the Event (Designer Promotional Material) for the prior approval of MFF prior to the publication of that Designer Promotional Material.  

43. Any Designer Promotional Material prepared by the Designer must contain the MFF Logo. 

44. MFF provides the Designer with a non-exclusive, royalty free, non-transferrable, revocable licence to use the MFF Logo solely for purposes of the Designer complying with its marketing and promotional obligations under this clause. 

45. MFF reserves the right to request that the Designer edit any Designer Promotional Material submitted to it under this Agreement.  

46. The Designer must use its best endeavours to minimise the incidence of Ambush Marketing.  

47. The Designer may use the Photography Package it is provided by MFF for purpose of promoting their involvement in the Event.  

48. MFF grants to the Designer during the Term and for a period of 2 years after the termination or expiry of this Agreement, a non-exclusive licence to use the Photography Package in relation to the promotion of their involvement in the Event.  

49. Cancellation of Event 

    MFF may: 

50. terminate this Agreement, suspend, cancel or change any aspect of the Event; or withdraw any part of the Collection from the Event,  (each a Change Event), for any reason, by providing the Designer with 30 days written notice of the Change Event prior to the Event. 

51. To the maximum extent permitted by Law, MFF does not accept responsibility to the Designer or any other person for any delay, postponement, cancellation or change to the Event.  

52. Subcontracts 

53. MFF may at its discretion engage or employ any person, sub-contractor or agent to perform any of its obligations under this Agreement, without the prior consent of the Designer.  

54. Liability and indemnity  

55. Consequential Loss 

56. MFF is not liable to the Designer or to any other person for any Consequential Loss arising out of or in connection with this Agreement, the Event or the Fashion Services. 

    Maximum Liability 

57. The maximum liability of MFF for all losses, damages, costs, expenses and claims arising out of, or in connection with this Agreement, whether arising in or under contract, statute, tort, equity or otherwise at Law is limited to the sum of the Participation Fee (if any) paid to MFF.  

    Exclusions of implied warranties 

58. Any representation, warranty, condition, guarantee, indemnity or undertaking that would be implied in, or affect, this Agreement by legislation, common law, tort, equity, or by course of performance, dealing, trade, custom or usage is excluded to the maximum extent permitted by Law. 

59. Indemnity by designer 

60. The Designer indemnifies and must keep indemnified MFF, its officers, employees, and contractors, against all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against MFF or which MFF may pay, sustain or incur as a direct or indirect result of any one or more of the following: 

61. any breach or non-performance of this Agreement by the Designer; and 

62. any wrongful, wilful or negligent act or omission of the Designer or any of its employees, agents or contractors. 

63. Survival 

64. Despite any other provision of this Agreement, this clause 12 survives the expiry of the termination of this Agreement.  

65. Default and termination 

    If:

66. an Event of Default occurs in relation to a party (Defaulting Party), the other party may give a notice (Default Notice) to the Defaulting Party specifying the Event of Default and requiring the Defaulting Party to remedy the default within five [5] Business Days after the Default Notice.  

    If: 

67. the Designer fails to comply with a Default Notice; 

68. MFF considers acting reasonably that, its professional reputation is or will be hindered or otherwise damaged as a result of its association with the Designer; or 

69. the Designer is the subject of an Insolvency Event, 

70. then MFF, without limiting its other rights and remedies, may terminate this Agreement by giving notice to the Designer with immediate effect.  

    If: 

71. MFF fails to comply with a Default Notice; or 

72. MFF is the subject of an Insolvency Event,  

73. then, the Designer may terminate this Agreement by notice to MFF with immediate effect.  

    Confidentiality  

74. The parties acknowledge and agree that the terms of this Agreement are confidential and must not be disclosed to any third person unless required by any Law. 

    GST 

75. Amounts payable under this Agreement are quoted inclusive of GST.   

    General 

76. No adverse construction 

77. This Agreement, and any provision of this Agreement, is not to be construed to the disadvantage of a party because that party was responsible for its preparation. 

78. Further assurances 

79. A party, at its own expense and within a reasonable time of being requested by another party to do so, must do all things and execute all documents that are reasonably necessary to give full effect to this Agreement. 

80. No waiver 

81. A failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on the party by this Agreement does not operate as a waiver of the power or right. 

82. A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or ri\ght under this Agreement. 

83. A waiver of a breach does not operate as a waiver of any other breach. 

84. Severability 

85. Any provision of this Agreement which is invalid in any jurisdiction must, in relation to that jurisdiction: 

86. be read down to the minimum extent necessary to achieve its validity, if applicable; and 

87. be severed from this Agreement in any other case, 

88. without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction. 

89. No assignment 

90. The Designer must not assign or otherwise transfer the benefit of this Agreement without the prior written consent of MFF. 

    Consents and approvals 

91. Where anything depends on the consent or approval of a party then, unless this Agreement provides otherwise, that consent or approval may be given conditionally or unconditionally or withheld, in the absolute discretion of that party. 

92. No variation 

93. This Agreement cannot be amended or varied except in writing signed by the parties. 

    Costs 

94. Each party must pay its own legal costs of and incidental to the preparation and completion of this Agreement. 

95. Governing law and jurisdiction 

96. This Agreement is governed by and must be construed in accordance with the laws in force in Victoria. 

97. The parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to this Agreement, its performance or subject matter. 

    Notices 

    Any notice or other communication to or by a party under this Agreement: 

98. may be given by personal service, post or email; 

99. must be in writing, legible and in English addressed (depending on the manner in which it is given) as shown in the Designer Information Pack or to any other address last notified by the party to the sender by notice given in accordance with this clause; and 

100. is deemed to be given by the sender and received by the addressee: 

101. if delivered in person, when delivered to the addressee; 

102. if posted, at 9.00 am on the second Business Day after the date of posting to the addressee whether delivered or not; or 

103. if sent by email, on the date and time shown on the transmission report by the machine from which the email was sent which indicates that the email was sent in its entirety and in legible form to the addressee notified for the purposes of this clause, 

104. but if the delivery or receipt is on a day which is not a Business Day or is after 4.00 pm (addressee's time), it is deemed to have been received at 9.00 am on the next Business Day. 

     Counterparts 

105. If this Agreement consists of a number of signed counterparts, each is an original and all of the counterparts together constitute the same document. 

106. Operation of indemnities 

107. Unless this Agreement expressly provides otherwise: 

108. each indemnity in this Agreement survives the expiry or termination of this Agreement; and 

109. a party may recover a payment under an indemnity in this Agreement before it makes the payment in respect of which the indemnity is given. 

110. No right of set-off 

111. Unless this Agreement expressly provides otherwise, a party has no right of set-off against a payment due to another party. 

112. Relationship of parties 

113. Unless this Agreement expressly provides otherwise, nothing in this Agreement may be construed as creating a relationship of partnership, of principal and agent or of trustee and beneficiary. 

     Definitions and interpretation 

114. Definitions 

115. In this Agreement: 

116. Agreement means this agreement including the background, the Designer Information Pack, and Schedule; 

117. Ambush Marketing means advertising conduct by a third party that is not authorised or approved by MFF, which suggests a sponsorship, support or affiliation with MFF, the Festival or the Event; 

118. Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne, Victoria; 

119. Collection means the fashion collection designed and manufactured by the Designer which has been approved by MFF for use in the Event;  

120. Commencement Date means the commencement date referred to in the introduction of the Schedule in the Designer Handbook 

121. Consequential Loss means any indirect, incidental, special or consequential loss or damage, pure economic loss damages and exemplary or punitive damages,  including loss or damage in relation to loss of use, loss of production, loss of revenue, loss of profits or anticipated profits, loss of business, loss of business opportunity, loss of contract, loss of  reputation or opportunity, business interruptions of any nature, loss of data, data corruption rectification costs or loss or damage resulting from wasted management time; 

122. Corporations Act means the Corporations Act 2001 (Cth); 

123. Designer Material means any of the Designer's Intellectual Property Rights, material communication or images which the Designer makes available for the performance of its obligations under this Agreement, including: 

124. the Collection; and 

125. the Designer Logo; 

126. Event means the event referred to in the Schedule; 

127. Event of Default means: 

128. in relation to MFF, the failure by MFF to comply with any of its obligations under this Agreement; and 

129. in relation to the Designer, the occurrence of any one or more of the following events or circumstances: 

130. the Designer fails to comply with any of its obligations under this Agreement; or 

131. any representation, warranty or statement made or repeated by the Designer in or in connection with this Agreement is untrue or misleading in any material respect (including by omission) when so made or repeated;  

132. Expiry Date means the expiry date referred to in the introduction of the Schedule in the Designer Handbook; 

133. Fashion Services means the operation, production and management of the Event and the display of some or all of the Collection at the Event; 

134. Festival means the Melbourne Fashion Festival; 

135. Fur Policy means MFF's policy of not allowing the use or presentation of fur at any shows or activities managed or operated by MFF (housed in the MFF Event Policies); 

136. Group Showcase means a runway show operated and managed by MFF which involves collections of more than one designer; 

137. GST has the meaning given to it in the A New Tax  
     System (Goods and Services Tax) Act 1999 (GST Act); 

138. Insolvency Event means, in respect of a party, any one or more of the following events or circumstances: 

139. a winding up, dissolution, liquidation, provisional liquidation, administration or bankruptcy; 

140. having a controller or analogous person appointed to it or any of its property; 

141. being unable to pay any of its debts as and when due and payable or being deemed to be insolvent under any provision of the Corporations Act or any other Law; 

142. seeking protection from its creditors under any Law, entering into a compromise, moratorium, assignment, composition or arrangement with, or for the benefit of, any of its members or creditors; or 

143. any analogous event or circumstance to those described in paragraphs (a) to (d) under any Law; or 

144. taking any step or being the subject of any action that is preparatory to, or reasonably likely to result in, any of the above, 

145. Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing, including: 

146. patents, inventions, designs, copyright, trade marks, brand names, product names, domain names, rights in circuit layouts, plant breeder's rights, know how, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration; 

147. any application or right to apply for registration of any of these rights; 

148. any registration of any of those rights or any registration of any application referred to in paragraph (b); and 

149. all renewals, divisions and extensions of these rights; 

150. Law means: 

151. principles of law or equity established by decisions of courts; 

152. statutes, regulations or by-laws of the Commonwealth of Australia, or any State or Territory of the Commonwealth of Australia or a government agency; and 

153. requirements and approvals (including conditions) of the Commonwealth of Australia or any State or Territory of the Commonwealth of Australia or a government agency that have the force of law; 

154. MFF Logo means the symbols or other trade indicia used by MFF to promote the Festival and Event; 

155. Official Program means the printed (if applicable) and electronic guide to the Festival produced each year by MFF; 

156. Photography Package means the photography supplied post runway;  

157. Schedule means the schedule to this Agreement (online form and Designer Handbook); 

158. Solo Showcase means a runway show operated and managed by MFF which involves a collection of a single designer; 

159. Storage Facility means the storage facility referred to in the Schedule or such other premises as notified by MFF to the Designer from time to time;  

160. Ticket means any tickets, lanyards or access passes issued by MFF for entry into the Event; 

161. Ticketing Terms and Conditions means the MFF's standard ticketing terms and conditions as amended from time to time; 

162. Interpretation 

163. In this Agreement unless the context requires otherwise: 

164. the singular includes the plural and vice versa and a gender includes the other genders; 

165. the headings are used for convenience only and do not affect the interpretation of this Agreement; 

166. other grammatical forms of defined words or expressions have corresponding meanings and a reference to a thing includes a part of that thing; 

167. if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day; 

168. the word "person" includes a natural person, partnership, body corporate, association, governmental or local authority, agency and any body or entity whether incorporated or not; 

169. wherever "include", "for example" or any form of those words or similar expressions is used, it must be construed as if it were followed by "(without being limited to)"; 

170. money amounts are stated in Australian currency unless otherwise specified;