BOOKING TERMS AND CONDITIONS
The following Terms and Conditions shall govern the relationship between Trendsetter Model Management, a Florida corporation (hereinafter “Agency”) and Client, for the booking of all models. These Terms and Conditions shall apply to all booking requests confirmed by the Agency. No other terms and conditions are effective unless expressly agreed to in writing by the Agency.
1. Booking Confirmation
Upon booking of a model, the Agency will send to the Client a booking confirmation form, which shall set forth the specific terms of the booking. The booking confirmation form must be signed and returned by the Client. By proceeding with the booking, the Client shall be deemed to have accepted these Terms and Conditions, even if the Client fails to return the signed booking confirmation form.
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
a. Permitted use
Unless agreed otherwise and included on the booking confirmation form, booking fees entitle 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 States only, for the initial permitted use. Please note that such permitted use is strictly contingent upon payment in full of all fees owed to the Agency prior to the image’s first use.
b. Daily/hourly rate
Booking fees are charged by the day or by the hour. A “day” is an 8-hour period including one hour for lunch, between 9 am and 6 pm (usually 9 am to 5 pm or 10 am to 6 pm). An extra hour between 9 am and 6pm is charged at the normal rate – the appropriate overtime rate is charged only before 9 am or after 6 pm.
This is charged at one-and-a-half times the hourly rate. Saturdays are charged at one-and-a-half times the hourly rate and Sundays or Bank Holidays are charged at double the hourly rate. Any overtime hours will be rounded up to the next whole hour. Any booking longer than 5 hours will be charged at the full day rate, or on an alternative basis, for example, a set fee for a catwalk show. Details will be set out in the booking confirmation form.
Any time spent by the model travelling to or from the venue for the provision of services will be charged at half the hourly rate; provided, however, that if the model is required to travel to or from the venue on a date other than the scheduled booking date, the Agency may in its discretion charge the Client the model’s half day rate for each such date of travel in lieu of charging half the model’s hourly rate.
e. Fitting fees
Any time spent by the model for a pre-shoot fitting will be charged at half the day rate. For all other fittings, any time spent by the model will be charged at $100 per hour, for a minimum of two hours.
f. Additional expenses
All expenses incurred by the Agency on the Client’s behalf will be invoiced to the Client at cost plus 12.5%.
g. Location bookings
When a location booking is made, the Client must provide round-trip transportation for the model to the booking location, unless agreed otherwise. If the Client fails to provide such transportation, then the Agency shall be entitled to re-charge the cost of the transportation procured for the model in accordance with section 2(e). If a model on location is delayed, as a result of any act or failure by the Client, in timely returning to his or her primary base of operations, overtime rates shall be charged to and payable by the Client.
When a location booking is made, the Client will identify and assess any health and safety hazards or risks of the location and shall notify the Agency of such hazards or risks and how they have been mitigated. The Client acknowledges that at all times the model’s health and safety is of paramount importance and agrees to ensure that the highest standards of health and safety are complied with during any location bookings.
3. Additional fees
In any booking request submitted to the Agency, the Client must specify the planned use of the model’s name or image. Any quote issued by the Agency shall be issued in reliance upon such planned use. The Client agrees to immediately notify the Agency should the actual use of the model’s name or image deviate from this planned use. Additional fees may apply for certain additional uses, rights, or services, if such uses, rights, or services were not agreed at the time of booking.
Additional fees are payable for the right to use the model's name or 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 other than the initial permitted use, details of which will be 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 additional media including but not limited to Twitter, Facebook, MySpace, YouTube, Flick, Blogs or other social networking websites or media (collectively, “Social Media Sites”). Additional fees are also payable for the right to the use the model’s name on Social Media Sites. Unless otherwise agreed, the additional fees cover the right to use one image for one year from the date of booking, in the United States 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 advertising 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(a) above for all known or anticipated territories other than the United States. 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.
c. Other services
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. The agency is solely responsible in perpetuity, for all modifications, extensions, and renewal of bookings.
4. Agency Fees
The Agency charges a surcharge of 20% on all fees, including without limitation hourly, daily and overtime fees, fees for the right to use, and all fees negotiated for any other service to be supplied by the model. Both agency fees and model fees will be invoiced by the Agency.
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,” (e.g., the 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 for the payment of all fees. 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.
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 outstanding principal balance shall accrue interest, both before and after judgment, at the rate of 18% per annum.
In the event that the Client elects to pay any portion of the agency fees directly to the model, the Client understands and agrees that such election shall not extinguish the Client’s obligation to pay agency fees to the Agency under this agreement and Client agrees to indemnify the Agency for any failure by the model to pay any such fees to the Agency.
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: (a) enters into an agreement with the Client on the same terms as these terms and conditions; (b) acknowledges its obligations to the Agency including but not limited to the obligation to pay the Agency within 30 days of the date of any invoice received from the Agency; and (c) acknowledges that that the third party end user may not use the images until payment is received by the Agency and that at all times the third party end user is subject to any restrictions as to the use of the images, including but not limited to territorial restrictions and restrictions as to media in which the images may be used. 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
Unless otherwise agreed in writing, 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 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.
a. Cancellation of booking by the Client
If the Client cancels the booking within three (3) business days of the booking call time then the full booking fee will be charged and payable by the Client, unless the same model is booked within 24 hours of the cancellation, in which case half the booking fee will be charged and payable by the Client. If the Client cancels the booking more than three (3) business days prior to the booking call time but less than five (5) business days prior to the booking call time, then half the booking fee will be charged and payable by the Client. Notwithstanding the foregoing, the full booking fee will be charged and payable by the Client for cancellation of bookings of more than three days’ duration.
b. Cancellation of booking by the Agency
Should the Agency want to cancel a booking then it shall use reasonable efforts to notify the Client, 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.
In any event, the Agency shall be entitled to cancel a booking at any time and for any reason prior to the booking date without liability to the Client and the Client will procure the necessary insurance cover with a reputable insurance provider to protect against such cancellation and any associated liability and the Agency shall not be liable to the Client for any costs incurred as a result of such a cancellation.
9. Weather related cancellations
Fees for weather related cancellations shall be as follows: (a) for the first such 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; and (b) for all subsequent such cancellations, the full booking fee is charged and payable by the Client.
Clients are responsible for the provision of all meals and beverage requirements of the models (considering dietary requirements) while the models are providing services to the Client on all bookings.
11. Model care and safety
The Client shall ensure that the model is treated with respect and professionalism. The Client shall take all steps necessary to ensure that the safety, health, and well-being of the model is protected and maintained at all times while providing services to the Client. Such steps shall include without limitation:
a. 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;
b. allowing the model to take suitable and regular rest periods, to ensure the model is able to maintain suitable amounts of rest and refreshment while delivering the services;
c. providing adequate levels of insurance cover to safeguard the health and safety and future earnings of the model while the model is delivering the services and travelling to and from the Client’s venue as if he/she were an employee of the Client;
d. ensuring that all of the people and organizations which are engaged by the Client in relation to the delivery of the services are suitably qualified, experienced, and professional;
e. ensuring that no one imposes upon the model any action or activity which is either dangerous, degrading, unprofessional or demeaning to the model;
f. providing the model with an appropriate changing and dressing area to ensure that the model can prepare for the provision of the services and also maintains his/her privacy.
Semi-nude, nude, see-through, bathing suit, or lingerie photography require the express prior written approval of the agency. The use of the model’s image must not be pornographic, derogatory, or a cause of ridicule or embarrassment to the model. The image must not be altered or distorted.
Subject to the above restrictions, behind the scenes filming is permitted on condition that the model is hair and make-up ready.
The Client shall always include a credit as “Model’s Name” @ Trendsetter Models,” wherever a credit is applied.
The Client warrants and represents to the Agency that:
a. it has full capacity to enter into these terms and conditions and perform its obligations under these terms and conditions;
b. the booking form is executed by a duly authorized representative of the Client;
c. it will take all steps necessary to ensure that the model is protected and treated in accordance with all applicable laws, good industry practice and section 11 above;
d. it has all necessary permits, licenses, 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; and
e. it will promptly disclose to the Agency in writing all necessary information (including without limitation the location and length of the shoot and requirements for any foreign travel) and details relating to the provision of the services to enable the Agency to ensure that the model is suitably prepared and able to perform the services
The Client shall indemnify and hold harmless the Agency against all costs, expenses, damages and losses suffered or incurred by the Agency (including but not limited to all legal costs and attorneys’ fees) arising out of or in connection with: (a) any breach by the Client of these terms and conditions, including but not limited to, any breach by the client of Section 6 of these terms and conditions; (b) 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; and (c) any breach by the Client of any applicable laws or regulations, including but not limited to any breach of applicable health and safety or employment laws and regulations as amended from time to time.
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 3 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
For music videos and promotional films, all fees will be negotiated, structured, and paid for by the Client 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
The photographer and/or the Client (and anyone obtaining rights from or through the photographer and/or Client) is not entitled to use any images for any usage beyond that agreed or permitted under sections 2(a), 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 is to draw all these terms and conditions (1-24) to the attention of the photographer and procure his or her agreement to them before the shoot commences.
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 license 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.
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.
Client acknowledges that the Agency owns and retains all trademarks and copyrights to the “Trendsetter” mark and logos and agrees that: (i) it will use the “Trendsetter” mark or logos only upon express written authorization of the Agency; (ii) it will not take any action which may adversely affect the validity or enforceability of any such trademarks or copyrights; and (iii) it will promptly notify the Agency of any known or suspected infringement of the such trademarks or copyrights.
18. Influencer Collaborations
i. Usage of content for collaboration must be agreed upon by both parties and must not be shared or used without permission.
ii. Images or content created by the influencer must never be altered, edited, or changed in any way or form.
iii. When sharing content on other social media platforms the brand must always tag and mention the influencer.
iv. Rights of images and or content to be arranged for specific time periods must be agreed by both parties.
v. The right to pre-approval of content must be specified on the contract.
vi. Any changes made to an existing booking or collaboration will be discussed and an appropriate fee negotiated.
i. The Client agrees not to contact the Influencer directly. All contact and negotiations are to be made solely through the Agency.
ii. The Client agrees to not pass on or share any personal contact details or information of the influencer to any third party.
iii. The Client must respond to any communication made by email or phone regarding the collaboration within three business days.
iv. For any new Client, a 50% proforma is required to be paid in advance of the booking.
v. All payments are to be made via bank transfer to Trendsetter Model Management. Wire and/or ACH instructions will appear on the invoice
During the term of the collaboration, if the Client commits any disreputable act or offends the general community in any way which may be deemed by the Agency as damaging to the reputation or success of the Influencer or the Agency, the Influencer is permitted to take down any content related to this brand.
19. Liability and insurance
In no event shall either party be liable for any incidental, punitive, exemplary, indirect, or consequential damages as a result of any act or omission by such party. In no event will AGENCY’s liability exceed any Compensation paid to agency PURSUANT TO THIS AGREEMENT.
The Client shall maintain (and shall require its ultimate client, if any, to maintain) throughout the continuance of these terms and conditions 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 coverage shall include, but not be limited to, sufficient commercial liability insurance coverage as would cover the model for any injuries suffered by the model at the venue for the provision of the services.
20. Contract and authority
a. 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).
b. If a model leaves the Agency, the Client is prohibited from working with the model directly or via another agency for a period of six months from the model’s termination date. If, during this six month period, the Client wishes to continue to work with a model, the Client will contact the Agency to schedule a booking and the Agency, if able to do so under the terms of any post-termination provisions of its contract with the model, will arrange any requested bookings. Any breach of this clause will be taken seriously and may result in legal action.
21. 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. While the Agency will use reasonable efforts 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 behavior while 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 behavior or conduct of any model.
22. Force Majeure
The Agency 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, flood 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.
23. Interpretation of terms and conditions
a. 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).
b. 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.
c. 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.
d. 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 authorized representatives of both the Agency and the Client.
a. If any part of this agreement is held to be unenforceable or invalid under, or in conflict with, the applicable law of any jurisdiction, then the unenforceable, invalid, or conflicting part shall be narrowed or replaced, to the extent possible, with a construction in such jurisdiction that effectuates the intent of the parties regarding this agreement and the unenforceable, invalid, or conflicting part. Notwithstanding the unenforceability, invalidity, or conflict with applicable law of any part of this agreement, the remaining parts shall be valid, enforceable, and binding on the parties.
b. 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.
c. Nothing in this agreement shall be construed as creating a joint venture, partnership, agency, employer/employee, or similar relationship between the parties, or as authorizing either party to act as the agent of the other.
d. 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.
e. No waiver, amendment, or modification of this agreement or of any covenant, condition, or limitation contained in this agreement shall be valid unless in writing and duly executed by the parties. Failure to enforce any provision of this agreement by a party shall not constitute a waiver of any term hereof by such party. The waiver by either party of a default or breach by the other party of any provision of this agreement shall not operate or be construed as a waiver of any subsequent default or breach of the same or of a different provision by such party.
f. Nothing in this agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this agreement, except as expressly provided in this agreement.
g. Any signature (including any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record) hereto or to any other certificate, agreement or document related to this transaction, and any contract formation or record-keeping through electronic means shall have the same legal validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the Florida State Electronic Signatures and Records Act, or any similar state law based on the Uniform Electronic Transactions Act, and the parties hereby waive any objection to the contrary.
h. This agreement, and any dispute arising out of this agreement, shall be governed by the laws of the State of Florida, without regard to its choice of law rules.
i. Any action or proceeding between the parties shall be brought solely in the courts of the State of Florida, County of Miami-Dade, or if it has or can acquire jurisdiction, in the United States District Court for the Southern District of Florida. Client consents to the personal jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue therein. In the event of any such action or proceeding, the prevailing party (as determined by a final judgment or Order issued by a court of competent jurisdiction) shall be entitled to recover his, her, or its reasonable attorney’s fees, expenses, and costs from the non-prevailing party.