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Performance agreement: How-to guide

Musicians, comedians, actors, professional speakers, and other entertainers frequently perform at clubs, restaurants, festivals, parties, conferences, and other venues. This may include music concerts, stand-up comedy shows, motivational speeches, and more.

However, certain things can go wrong before, during, and after a performance.

To avoid misunderstandings, the artist and the event organizer can use a performance agreement to establish the necessary details about the performance. A well-drafted agreement benefits both parties involved, clarifies the process, and makes the performance a great success.

This article covers the essentials of drafting a performance agreement and can be a good starting point.

What are the key aspects to consider in a performance agreement?

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A performance agreement is a formal agreement that protects the parties' rights during the contracted term. Before finalizing the terms, however, it is crucial to discuss what the performer agrees to perform and the applicable rates.

Performance expectations and payment terms

As the hiring party, you must first decide your organizational goals and then the results-oriented goals. It can contain any agreed-on terms but should, at a minimum, include:

  • A description of the performance and specific performance expectations
  • The amount to be paid as the performance fees, the payment terms
  • The location (performance venue), date, time, and duration of the performance
  • Required equipment(s) along with specific requirements like sound check services for music concerts
  • Timelines for venue set-up and take-down process
  • Specific set-up requirements by the performer—dressing rooms, electricity, sound equipment, and lighting needs after discussing with the venue owner
  • Insurance obligations
  • Ticket sales figures, including gross sales of tickets, merchandise, and advertising
  • Other miscellaneous requirements like arranging transportation, lodging, or meals for a performer

Clarify the terms and conditions of your agreement before memorializing them in writing.

Review and revisions

Allow each party to spend time reviewing the agreement once it is drafted. This will reduce the likelihood, or at least the efficacy, of a claim that a party did not understand any terms or how those might affect the agreement as a whole.

Conformity with the laws

  • If the performer is under 21, review your state's laws about agreements with minors and labor laws applicable to child performers.
  • While creating your performance agreement, review your state's laws governing performers. In recent years, many states have enacted laws establishing precise requirements for the level of control an event organizer can have over performers. 
  • Review your state's law governing non-resident entertainers and performers. Some states require that a purchaser withhold taxes if the performer is from out of state.
  • Review IRS regulations and other applicable federal laws if the performer is foreign.

Document records

Both parties must discuss the terms of their agreement, settling questions about the nature of the performance, services that will be provided, payment process, and responsibilities of both parties.

Once the agreement is drafted, the parties must sign two copies. The hiring party keeps one, and the other is given to the performer.

Once you have agreed on contract terms and have signed the attached document, each party can focus on its area of expertise: the entertainer on the performance and the organizer on the event.

Understanding the clauses in performance agreements

The provisions provided below will guide you through the terms of performance agreements, section by section, to help you understand the process better.

Introduction

In this section, mention the relevant details of the involved parties and, if applicable, what type of organization(s) they are (e.g., individual, corporation, partnership). The party who hires the performer shall be addressed as the "purchaser," the party performing is called the "performer." Briefly describe the company's business here.

Additionally, you must provide the date the agreement will become effective (often when signed).

Purpose

Here, you explain why the parties are entering the agreement. This section confirms the parties' agreement that the performer will perform.

Compensation

This explains the parties' promise that the purchaser will pay for the performer's services, including the performance.

Date, time, and place of performance

This explains that additional information about the performance, like the date, time, venue size, and location, will be included in the agreement.

Responsibilities

This section lists each party's responsibilities under the agreement. It means that the performer agrees to provide the performance and the related services with adequate attention and care to make it a great success. The purchaser agrees to provide assistance and appropriate workspace. You can also mention any additional obligations here.

Representations and warranties

This mentions the parties' promises under the agreement, which means that the parties agree to enter the agreement based on the conditions listed in this section.

Term

Indicates that the agreement will last until termination by either party or until the performance and payments are completed.

Termination

This section outlines the specific circumstances that would result in the termination of the agreement, such as providing written notice or committing a material breach (before the services and performances are completed or the end of the term). Mention the notice period a party must give for an earlier termination or to notify the other party of a breach.

The parties can terminate the contract if an event (like a fire, personal injury, accident, or earthquake) interferes with the performance or if the other party breaches an obligation and does not fix this breach. In both cases, the party seeking to end the contract must give written notice. Mention the duration of the notice period.

Additional services

This section indicates that if the purchaser wants to extend the performance or to include additional services, the purchaser will pay for these add-ons at the rates initially discussed by both parties.

Recording of performance

This section of the performance agreement explains that the purchasers will try to prevent photographing and videotaping of the performance unless the performer agrees to allow it.

Exclusive performance

This optional section prevents the performer from performing near the venue during a specific period. The purchaser can only allow this by giving specific written consent to outside performance.

Promotion

This optional section allows the purchaser to promote and advertise the performance, ensuring it will achieve the intended success, and use the performer's name, picture, and biographical information.

Merchandise

This optional section mentions whether the performer can sell merchandise during the performance and the terms of doing so.

Right-to-end performance

This optional provision states that a performer reserves the right to stop the performance if they are legitimately concerned about someone's safety or the safety of their property.

Indemnification

This section states that if the performer causes a financial loss to the purchaser due to their performance, the performer will have to pay the compensatory damages. Such provision also applies to the purchaser. If the purchaser causes the performer a financial loss, they must make up for it by paying the compensatory damages to them. However, both parties will only be held responsible if they cause the problem on purpose.

Nature of the relationship

This part explains the relationship of the performer with the purchaser. It states that the performer is not an employee, partner, or agent of the purchaser. The relationship clause is a critical distinction for legal reasons, including requirements for health insurance coverage, liability, and taxes. List any specific taxes the purchaser must or will withhold on the performer's behalf.

Authority to sign the agreement

This explains that if someone else is signing on behalf of the performer (for example, a manager, agent, or another party), that individual has the power and authority to sign the agreement for the performer.

Assignment

This section states that neither party may assign obligations and interests under the agreement without the other party's consent.

Successors and assigns

This section states that the parties' rights and obligations will be passed on to heirs or, in the case of companies, successor organizations or organizations to which rights and obligations have been permissibly assigned.

Modification

This part of the agreement clarifies that any changes to the agreement are only effective if they are made in writing and signed by both parties.

Notice

This section mentions the respective addresses to which all official or legal correspondence should be delivered. Write the mailing address for both the performer and the purchaser.

Governing law

This section allows the parties to choose the governing laws of the state to interpret the document. Note that this is not a venue provision.

No implied waiver

This clause states that if one party permits the other to disregard an obligation under the agreement, it does not waive any future rights of the other party to fulfill those or any other obligations.

Severability

This protects the terms of the agreement as a whole, even if one part is later invalidated. For example, if a state law is passed prohibiting choice-of-law clauses, it will not undo the entire document. Only the section of the agreement regarding choice of law would be nullified, while the rest remains enforceable.

Counterparts; electronic signatures

This clause may seem intricate, but it is easy to understand: It simply states that regardless of where the parties sign the agreement or how they transmit signatures (via electronic devices such as computers or fax machines), all of the separate pieces will be considered as part of the same agreement. This provision is beneficial today, where signing parties are often located in different cities and can't be physically present in the same room. It ensures that business can be conducted efficiently without compromising the validity of the agreement.

Entire agreement

The parties' agreement that the document they're signing is "the agreement" about the issues involved. Unfortunately, while this provision won't prevent a party from arguing that other enforceable promises exist, it will protect you from these claims.

Headings

This section explains that the headings at the beginning of each section are meant to organize the document and should not be considered operational parts of the performance agreement.

Frequently asked questions

What's a performance agreement?

A performance agreement details the responsibilities and expectations of the performer(s) and the party hiring them.

What are the essential elements of a performance agreement? 

The agreement should cover essential elements such as the performance location, date, time, and promotional aspects. It should also specify the dispute resolution mechanism and the grounds on which performances may be canceled.

What information is needed to complete a performance agreement?

  • Who it's coming from: Determine if a business or individual is sending the document and have the name and contact information ready
  • Whom it's going to: Know who will have the document, an individual or business, and keep the names and contact information ready
  • Subject matter: Be clear about the general subject and terms of the agreement, including the performance itself, as well as fees, deposits, and other financial considerations
  • Special circumstances: For a live performance, some unique conditions are often required to allow the performer to give their best performance. Be prepared for information relating to details such as dressing room accommodations, electrical and other tech requirements, and additional personnel. This will take a little time, but it's to protect your interests now so you don't have issues later
  • Date and time: Have your requirements for the date and time of the performance, but also the length of the performance, breaks (if any), and the time to set up and take down
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