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1. Terms and conditions
As required by Department of Employment regulations, the Agency's booking confirmation form,
containing the specific terms of the booking, must be signed and returned by the client and the
signed booking confirmation form together with these terms and conditions shall form the agreement
between the parties relating to each booking.
The failure to sign and/or return the booking confirmation form whilst proceeding with the booking
will be deemed to be an acceptance by the client of these terms and conditions and they shall apply to
and govern the booking between the Agency and the client.
Any amendment and/or variations made to the booking confirmation form by the client shall not be valid
and binding unless the Agency has agreed to such amendment and/or variation in advance and confirmed such
agreement by signing the booking confirmation form after the amendment and/or variation has been included
on the booking confirmation form.
In the event of any inconsistency or contradiction between these terms and conditions and the booking
confirmation form, these terms and conditions shall prevail.
2. Booking fees
Unless agreed otherwise and included on the booking confirmation form,
booking fees provide an entitlement and right for the client to use one image via a
single published medium for one year or for a single season in the case of a fashion booking from the
date of the booking, in the United Kingdom only, for the initial permitted use. Please note that such
permitted use and entitlement is strictly subject to payment in full of all fees owed to the Agency prior to
the image's first use.
Booking fees are charged by the day or by the hour, or on an alternative basis as notified to the client
by the Agency (for example, a set fee for a catwalk show) and details are set out in the booking confirmation form.
A 'day' is an 8-hour period between 9am and 6pm (9am - 5pm or 10am - 6pm). An extra hour between 9am and 6pm is
charged at the normal rate - the appropriate overtime rate is charged before 9am and after 6pm. Overtime is charged
at one-and-a-half times the hourly rate. Saturdays are charged at one-an-a-half times the hourly rate and Sundays
or Bank holidays are charged at double the hourly rate.
Any booking which is over 5 hours will be charged at the day rate as set out in the booking confirmation form.
Overtime rates apply at any time in excess of any 8 hour period including any time outside 09:00 and 18:00
Monday to Friday and on all bookings lasting longer than 8 hours (excluding one hour's break). Overtime rates will
be charged as follows:
Any time spent by the model travelling
to or from a client's venue will be charged at half the hourly rate:
this applies to any travel outside a five mile radius of Hyde Park Corner
(i.e. Chiswick in the west, Golders Green and Highgate Village in the
north, Mile End in the east, Streatham Hill and Tooting Bec in the south).
Any time spent by the model for fittings
is charged at half the appropriate hourly rate with a minimum charge
to the client of £50 per hour.
All expenses incurred
by the Agency on the clients' behalf will be charged to the client
and will include an uplift of 12.5% of the total amount of the expenses.
2.7.1. When a location booking is made, a client must provide transport for the
model both to the booking location and back again unless agreed otherwise. If the client fails to provide such
transport then the Agency shall be entitled to re-charge the cost of the transport procured for the model in
accordance with section 2.6. If a model on location is prevented from returning to London to work, half the daily
fee will be charged to and payable by the client for each day that the model is unable to return to London to work.
2.7.2. When a location booking is made, the client will make a health and safety
assessment of the location and shall notify the Agency of any potential risks and how these have been mitigated.
The client acknowledges that at all times the model's health and safety is of paramount importance and shall ensure
that the highest standards of health and safety are complied with whilst on any location bookings.
3. Additional fees
To be agreed at the time of the booking or before any additional usage in accordance with section 3.1
Additional fees are payable for the right to use the model's image or reproductions,
or adaptations of, or drawings derived from that image, or any other representation
of it, either complete or in part whether alone or in conjunction with any wording or other images,
photographs, drawings or anticipated purposes which are in addition to and outside the scope of the
initial permitted use, details of which are set out in the booking confirmation form, e.g. packs, posters,
showcards, record covers, swing tickets etc. For the avoidance of doubt, additional fees are payable
for the right to use the model's image or reproductions, or adaptations of, or drawings derived from that
image, or any other representation of it, either complete or in part whether alone or in conjunction with
any wording or other images, photographs, drawings online or in any digital media including but not limited
to Twitter, Facebook, MySpace, YouTube, Flickr, Blogs or other social networking websites or media. Unless
otherwise agreed, the additional fees cover the right to use one image for one year from the date of booking,
in the United Kingdom only, for the permitted use or uses or purposes agreed between the Agency and the client.
Under no circumstances will each additional usage fee be less than the model's advertised day rate as determined
by the Agency unless determined otherwise by the Agency in its absolute discretion.
Additional fees are also payable, and subject always to the Agency's prior consent, for the right to use the
model's image or reproductions etc, as set out in section 3.1 above for all known or anticipated territories
other than the United Kingdom. Unless otherwise agreed the additional fees cover the right to use one image for
one year or one season (as determined by the Agency at the date of booking and as detailed on the booking
confirmation form) from the date of booking, in the territory or territories agreed and stipulated on the
booking form. Under no circumstances will each usage fee be less than the model's advertised day rate as
determined by the Agency unless determined otherwise by the Agency in its absolute discretion.
Additional fees are also payable for other services to be supplied by the model, for example, personal
appearances for PR purposes. Fees for such services will be negotiated on a case by case basis between the
client and the Agency.
3.4. The agency is solely responsible in perpetuity, for all modifications, extensions and renewal of bookings.
4. Agency Fees
Both the Agency fees and model fees will be invoiced by the Agency. Unless otherwise agreed at the time of booking the model disbursement is included at 62.5% and the agent's fee at 37.5% of the invoice total.
The fee negotiated by the Agency is the model's fee from which an agency commission will be
deducted at 20% of the invoice total.
The model disbursement
and Agency fees will be charged in accordance with 4a) and applies to
all commercials shot for use outside the UK irrespective of where the
fee is paid.
All sums payable
under these terms and conditions are exclusive of VAT and any other
similar or equivalent taxes or duties which shall be payable in full
without set off by the client.
5. Invoicing
5.1. On all invoices payment
is required to be made by the client within 30 days of the date of the
invoice. In all cases, the person booking the model is the client,
who will be invoiced and solely responsible for payment, unless otherwise
agreed in writing at the time of booking. the Agency reserves
the right in its discretion to invoice the 'ultimate client', (eg. designer/
manufacturer/owner of the product in question). For example, this
may be done if the client is booking on behalf of the ultimate client,
in which case the client and the ultimate client are jointly and severally
liable to pay all of the fees and settle the invoice accordingly.
All fees for usage are for the right to use the model's image and, once
agreed, are payable whether or not the right is exercised. Unless
the Agency specifically agrees otherwise, in writing, no usage for the
model's image is permitted until payment is made in full. The
agency reserves the right to alter payment terms if it deems appropriate,
prior to booking.
5.2. If the client fails to
pay in full on the due date any amount which is payable to the Agency,
without prejudice to any other right or remedy of the Agency, the amount
outstanding shall bear interest both before and after any judgment at
five per cent per annum over Barclays Bank plc base rate from time to
time from the due date until up to and including the date that payment
is made in full and such interest shall be compounded and accrued on
a daily basis.
5.3. In the event that the client is providing the services on behalf of or to a third party end user,
in entering into these terms and conditions the client is acting in its capacity as the agent of the
third party end user and the client shall ensure that the third party end user:
5.4.
Any fees received by the client from the third party end user relating to any of the rights or benefits conferred
on the client by these terms and conditions shall be deposited in a designated Agency account by the client (the
Third Party End User Fees). The Third Party End User Fees shall be held on trust for the Agency as beneficiary until
such time as all outstanding fees owed by the client are paid in accordance with the terms of these terms and
conditions.
6. Exclusivity fees
6.1.
Unless otherwise agreed in the booking confirmation form the model is supplied to the client by the Agency on a
non-exclusive basis and the model shall be free to provide similar and/or competing services to any third party
and/or competing product or brand of the client. An additional fee will need to be agreed when the use of the
model's image or the service to be supplied by a model in relation to a product is required on an exclusive or
semi-exclusive (for example sector specific or territorial exclusivity) basis which precludes supplying services or
allowing the use of the model's image for competing and/or particular sector of products or within a particular
territory. A model can supply services to and allow use of the model's image by any competitor unless such an
exclusivity fee is negotiated and paid by the client. It is the client's responsibility to carry out any research
and check whether the model supplied has undertaken or is booked to undertake any conflicting work..
7. Provisional bookings
Provisional bookings will be automatically
cancelled if they are not confirmed by the client (by signing the booking
confirmation form) within 24 hours of the proposed booking.
8. Cancellations
8.1. Cancellation of booking by the
Client
8.1.3. The full booking fee
will be charged and payable by the client for bookings of more than
three days duration: within a period equal to or less than the length
of the booking, then Saturdays, Sundays and bank and public holidays
are excluded for the purpose of determining the cancellation notice
period.
8.2. Cancellation of booking
by the Agency
8.2.1. Should the Agency want to cancel a booking then it shall use reasonable endeavours
to provide the client with reasonable notice, take steps to offer to the client a suitable
replacement and/or substitute and take such other reasonable steps as are reasonably
practicable to mitigate against such cancellation.
9. Weather related cancellations
On the first occasion
of cancellation half the booking fee is charged and payable by the client
unless the client fails to cancel in time to prevent the model's attendance
in which case the full booking fee is charged and payable by the client.
On the occasion of the second cancellation and any subsequent cancellations
the full booking fee is charged and payable by the client.
10. Meals
Clients are responsible for the provision
of all meals and beverage requirements of the models (taking into account
dietary requirements) whilst the models are providing services to the
client on all bookings (see section 2.4)).
11. Model care and safety
11.1. The clients shall ensure
that the model is treated with respect and professionalism and that
the client takes all steps necessary to ensure that the safety, health
and well being of the model is protected and maintained at all times
whilst providing services to the client. Such steps shall include without
limitation:
11.1.1. ensuring that the venue for
the provision of the services and the working conditions are safe and
secure and allow the model to provide the services in compliance with
all health and safety standards, regulations, codes and laws;
11.2. Always include a credit as "model's name" @ "the Agency", wherever
a credit is applied.
12. Warranties
12.1. The client warrants and represents
to the Agency that:
12.1.4. it has all necessary permits, licences and consents to enter into and to perform
its obligations under these terms and conditions and such obligations shall be performed in compliance
with all applicable laws, enactments, orders, regulations, and other similar instruments (including but
not limited to any employment law or health and safety requirements in effect from time to time); and
13. Indemnity
13.1. The client shall indemnify the Agency and keep the Agency indemnified against all
costs, expenses, damages and losses suffered or incurred by the Agency (including but not limited to all
legal costs and expenses on a full indemnity basis) arising out of or in connection with:
13.1.2. any claim brought by a third party against the Agency in circumstances where, as a result of the client's
acts or omissions, the distribution of images, in whatever form, outside of the agreed territory and in breach
of these terms and conditions has caused the Agency to be in breach of the terms of an exclusive agreement with
such third party;
14. Fashion shows
Catwalk bookings provide the client
with the right to make use of a model's services on the catwalk for
the specified show and the right to allow photographers to be present
to take photographs and videos of the show on the basis that all such
material (or reproductions etc. as set out in section 3b above) is
exploited for reporting purposes only. The client is responsible
for ensuring that all photographers present are aware of this condition
and the client will procure that they abide by these conditions.
If any other usage is required it must be negotiated and agreed with
the Agency at the time of the booking.
15. Music videos, Promotional
films
All fees will be negotiated, structured
and paid by the client for on a case by case basis. In normal
circumstances there will be a fee for the shoot plus an additional buyout
fee payable by the client. If not booking direct, the client (usually
the music company) will be invoiced by the Agency as the ultimate client
(see section 5).
16. Test and experimental photography
When the Agency agrees to allow a photographer to take test or experimental photography the photographer
is not entitled to use, or allow others to use, test and/or experimental photographs or test commercials
for commercial purposes unless specific arrangements have been made before the photographic session.
17. Intellectual property
rights
17.1. The photographer and/or the client and anyone obtaining rights from or through the photographer/client is
not entitled to use any images for any usage beyond that agreed or permitted under sections 2.1, 3, 12, 13, 14
and 15 above. The client will procure that the photographer/client agrees to restrict the use and exploitation
of the copyright content of the photograph or any other intellectual property rights. If the client is not the
photographer, the client shall draw all these terms and conditions (1-22) to the attention of the photographer
and procure his agreement to them before the shoot commences.
17.2. All rights not expressly
granted to the client under these terms and conditions are hereby reserved
to the Agency and/or the model as appropriate. In particular, the client
acknowledges and agrees that the Agency is the owner or licence holder
of all commercial rights and intellectual property rights relating to
the model and the Agency and the client shall not be entitled to exploit
or enter into any commercial or other agreement to exploit any rights
relating to the model or the Agency other than the rights specifically
granted to the client under these terms and conditions.
17.3. For the avoidance of doubt, notwithstanding anything in the booking confirmation form or these terms and conditions,
including but not limited to any grant of exclusivity over the use of the images, the client acknowledges and agrees
that the Agency and the model may use the images resulting from any booking in any form whatsoever, solely in order
for the model and the Agency to promote the model and in the search of future job opportunities for the model. The
model and the Agency acknowledge and agree not to exploit the images for commercial purposes, other than as set out
in the booking confirmation form and these terms and conditions.
18. Liability and insurance
18.1. No party excludes
or limits its liability under these terms and conditions for: <
18.1.1. death
or personal injury caused by its negligence;
18.1.2. fraudulent misrepresentation;
or
18.1.3. any other type of liability
which cannot by law be excluded or limited.
18.2. Subject to section 18.1, the Agency limits its liability under these terms and conditions, whether such
liability arises in contract, tort (including without limitation negligence) or otherwise, so that the maximum
liability of the Agency for all claims under these terms and conditions shall be limited to and shall not in aggregate
exceed the total amount of the fees paid or payable to the Agency;
18.3. The client
shall effect and maintain (and shall require its ultimate client, if
any, to maintain) throughout the continuance of this terms and condition
insurance policies which provide appropriate coverage adequate enough
to cover all liabilities and risks of the client that may arise under
these terms and conditions. Such insurance policies shall include without
limitation:
18.3.1. cancellation
insurance to protect against the potential liabilities which the Agency
and the client may incur as a consequence of the provisions of sections
8 and 9;
18.3.2. insurance to protect the model
and the Agency should any damage, injury or loss be caused whilst the
model is providing services to the client; and
18.3.3. travel insurance to cover
the activities of the models whilst travelling to and from the location
of the services.
19. Contract and authority
All matters relating to the use of the model's image, any other services supplied by the model and all
fees must be negotiated and agreed only with the Agency. The client shall not attempt to negotiate, nor
allow others to negotiate, with the models directly. If the client or the photographer or any other person
on their behalf or connected with them obtains the model's signature on any document or the model's purported
verbal agreement to anything outside of the scope of this agreement, such signature or verbal agreement shall
not constitute a variation of this agreement and is not binding on the model or the Agency unless and until it
is agreed in writing by the Agency (such agreement to be determined in the Agency's absolute discretion).
20. Complaints and disclaimer
Any cause for complaint must be reported
to the Agency by the client as soon as it arises. Complaints cannot
be considered and/or dealt with effectively after the services have
been delivered. Whilst the Agency will use reasonable endeavours to
ensure that the models provide a satisfactory and efficient service
to clients, as the agent, the Agency cannot be held responsible for
a model's conduct or behaviour whilst delivering the services and in
this regard the Agency shall not be held liable for any costs, expenses
or losses suffered as a consequence of the behaviour or conduct of any
model.
21. Force Majeure
The Agency's shall
not be liable to the client for any delay in performing or failure to
perform any of its obligations under these terms and conditions which
is due to any cause beyond its control and which is unknown to, and
cannot reasonably be anticipated by the Agency including without limitation
fire, floor or catastrophe, acts of God, insurrection, workforce action,
war or riots, (an "Event of Force Majeure") and the Agency's
obligations under these terms and conditions shall be suspended for
so long as the Event of Force Majeure continues and to the extent that
it is so delayed.
22. Interpretation
of terms and conditions
22.1. For the purpose
of the relationship between the client and the Agency the client acknowledges,
accepts and agrees that the Agency is the supplier of services which
shall be strictly and exclusively governed by these terms and conditions.
These terms and conditions apply to every offer, quotation, acceptance,
purchase order, confirmation order, specification and/or contract for
the sale and supply of services or goods (including services ancillary
thereto) by the Agency and supersede any other terms of the client and
take precedence over and override and exclude any other terms stipulated
or incorporated or referred to by the client whether in the booking
confirmation form or in any negotiations and any course of dealing established
between the Agency and the client. The client acknowledges that
there are no representations, statements or promises made or given by
or on behalf of the Agency outside these terms and conditions which
have induced the client to enter into these terms and conditions (which
expression shall include any contract of which these terms and conditions
form part).
22.2. If there is any conflict between
any of these terms and conditions and the booking confirmation form
then the terms of these terms and conditions shall prevail without detriment
to the remaining unaffected terms of booking confirmation form.
22.3. The booking confirmation forms
part of these terms and conditions and shall have effect as if set out
in full in the body of these terms and conditions. Any reference to
these terms and conditions includes the booking confirmation form.
22.4. For the purpose of these terms
and conditions the words "agreed", subject to section 1, means
agreed in writing in the booking confirmation form and signed by duly
authorised representatives of both the Agency and the client.
23. General
23.1. If any of the terms, conditions
or provisions of these terms and conditions or the booking confirmation
are determined by any competent authority to be invalid, unlawful or
unenforceable to any extent, such term, condition or provision will
to that extent, be severed from the remaining terms, conditions and
provisions which will continue to be valid to the fullest extent permitted
by law.
23.2. Any termination
of all or part of these terms and conditions shall not affect the coming
into force or the continuance in force of any provision of these terms
and conditions which is expressly or by implication intended to come
into force or continue in force on or after such termination.
23.3. Except as
otherwise expressly provided in these terms and conditions, all representations,
warranties, undertakings, agreements, covenants, indemnities and obligations
made or given or entered into by the client and the ultimate client
under these terms and conditions are assumed by them jointly and severally.
23.4. Nothing in
these terms and conditions shall render any party a partner or agent
of the other. Except as expressly permitted by these terms and
conditions, nothing shall allow a party to purport to undertake any
obligation on behalf of the other nor expose the other party to any
liability nor pledge or purport to pledge the other's credit.
23.5. No failure
to exercise and no delay in exercising on the part of either party of
any right, power or privileged under these terms and conditions shall
operate as a waiver of it. Nor shall any single or partial exercise
of any right, power or privilege preclude the enforcement of any other
right, power or privilege. Nor shall the waiver of any breach
of a provision be taken or held to be a waiver of the provision itself.
For a waiver to be effective it must be made in writing.
23.6. Except as and
to the extent expressly otherwise specified in these terms and conditions,
the rights and remedies contained in these terms and conditions are
cumulative and are not exclusive of any rights or remedies provided
by law or elsewhere in these terms and conditions.
23.6.1. The parties
agree to keep, and to instruct its agents, employees, advisers and sub-contractors
with knowledge hereof to keep these terms and conditions strictly private
and confidential and not to disclose any details relating to the same,
subject to disclosure in the following circumstances;
to enable
enforcement of the party's rights under these terms and conditions;
with the
prior written consent of the other party; and
as required by any
applicable law.
23.7. These terms and conditions and the booking form constitute the entire agreement
between the parties and supersede any previous agreement or arrangement
between the parties relating to the subject matter of these terms and
conditions.
23.8. No variation
or amendment to the terms of these terms and conditions shall be valid
and binding unless in writing and signed by an authorised representative
of each party.
23.9. Except where
these terms and conditions expressly provides otherwise, a person who
is not a party to these terms and conditions has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of
these terms and conditions but this does not affect any right or remedy
of a third party which exists or is available apart from under that
Act. The client acknowledges, accepts and agrees that the Agency
has entered into these terms and conditions for the benefit of itself
and the model and accordingly the model shall be entitled to enforce
these terms and conditions as if he/she were a party to these terms
and conditions.
23.10. Subject to clause 23.11, the parties agree that these terms and conditions and its provisions will be
governed by and construed in accordance with English law and the parties hereby submit to the exclusive
jurisdiction of the English Courts.
23.11 Notwithstanding clause 23.10, the Parties to this Agreement agree that the Company may enforce
its rights under these terms and conditions in any other court of competent jurisdictions outside of the courts
of England and Wales.
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