TERMS & CONDITIONS
Last Updated: January 26, 2018
These Terms and Conditions are operated by EMG Models (“EMG”). The information contained herein along with the information recorded on any combination of voucher (“Voucher”), booking confirmation form (“Booking Confirmation”) and release (“Release”) shall form the agreement between the parties relating to each instance of procurement of service of a Model or Talent (“Model”) by a Client (“Client”).
Booking Agreement. Upon a confirmation of a booking, Booking Confirmation 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 Booking Confirmation while 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 Model and Client. Any amendment and/or variations made to the booking by the Client shall not be valid and binding unless Model has agreed to such amendment and/or variation and confirmed such amendment and/or variations with EMG by signing the Booking Confirmation after the amendment and/or variation has been included on the Booking Confirmation. In the event of any inconsistency or contradiction between these Terms and Conditions and the Booking Confirmation, these terms and conditions shall prevail and bind the parties.
Contractors. EMG is not a contractor for the services agreed between Models and Clients. Clients and Models are responsible for the performance and/or fulfilment of agreements they entered with one another. Models are independent contracts and not employees of EMG.
Booking Requests. Requests for Bookings will be accepted by email, phone and in person. Bookings considered tentative and not binding on either party unless confirmed in writing within twenty-four (24) hours from the proposal of the booking by email.
Tentative Booking. If a Client doesn’t exercise their option to Release or confirm tentative bookings within twenty-four (24) hours, tentative bookings will be automatically cancelled, allowing other secondary bookings to take precedence.
Permitted Use. Unless agreed otherwise and included on the Booking Confirmation, booking fees provide an entitlement and right for the Clint to use the images, likeness or video only for the usage agreed upon and documented on the Booking Confirmation, and for only that usage (“Permitted Use”).
Please note that such permitted use and entitlement is strictly subject to payment in full of all fees owed to Model prior to the image’s first use.
Booking Rates. All bookings must be paid for the full amount of time booked, even if Models are not used for the full amount of the booking time.
Minimum Booking Time:
Minimum booking time is 2 hours.
Daily/Hourly Rate: Booking fees are charged by the day or by the hour,
or on an alternative basis as notified to the Client (for example, a set fee
for a runway show) and details are set out in the Booking Confirmation.
An hour is any 60 (sixty) minute period. The minimum increment of time is 30 minutes.
A half day is 4 (four) consecutive hours or less
A day is any 5 (five) to 8 (eight) hour period between 9am and 6pm (9am - 5pm or 10am - 6pm) including one our lunch break.
Payment of day / hourly rates do not automatically grant usage rights to the Client or photographer unless explicitly granted.
Overtime. Unless otherwise negotiated in writing and set out in Booking Confirmation, overtime rates apply at any time outside 9:00 am and 6:00 pm Monday to Friday, for all times on Saturday, Sunday and Bank holidays, on all bookings lasting longer than 8 hours (of which at least one hour is a lunch break) and on all bookings exceeding the agreed upon end time.
The minimum increment of time is 30 minutes.
Excluding equity contracts, overtime is charged at one-and-a-half times the hourly rate. Saturdays are charged at one-an-a-half times the hourly rate. Sundays or Bank holidays are charged at double the hourly rate.
Safety. 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 provided. It is the responsibility of the customer that the Model is not placed in harm’s way.
Transportation. When a location booking is made, the Client must provide transportation for the Model both to the booking location and back again unless agreed otherwise. If the Client fails to provide such transport then the Model shall be entitled to collect from the Client the cost of the transport procured for the Model.
Travel Rate. Unless otherwise negotiated in writing and stated in Booking Confirmation, any time spent by the Model travelling to or from a Client's venue will be charged at half the hourly rate.
Fitting Fees. Any time spent by the model for fittings is charged at half the applicable Model’s hourly rate.
Additional Expenses. All expenses incurred by the EMG or Model on the Clients' behalf will be charged to the Client.
Meals. Clients are responsible for Model`s meals and beverage on bookings and must provide at least one hour walk-away lunch or provide adequate meals (taking into account dietary requirements) on a booking for a full day.
Additional Fees. All additional fees are to be agreed at the time of the
booking or before any additional usage in accordance with section below:
Usage and Associated Fees. Payment of a Model’s day rate does not grant usage rights to the Client or photographer. Usage is to be documented on the Booking Confirmation and/or Release and agreed by Client and Model.
Additional Usage. 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 Permitted Use, details of which are set out in the Booking Confirmation Form, e.g. packaging, point of sale, posters 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 on all social media platforms. Unless otherwise agreed and set out in the booking confirmation form, the additional fees cover the right to use one image for the Permitted Use. Under no circumstances will each additional usage fee be less than the Model’s advertised day rate as determined by EMG unless determined otherwise by EMG in its absolute discretion. All modifications, extensions and renewal of bookings shall be at the sole discretion of Model and negotiated by EMG.
Additional Services. Additional fees are payable for additional services outside the scope of the Booking Confirmation that are provided by the Model. Fees for such service like appearances at events and posting images on the model’s own social accounts and media feeds will be negotiated by EMG on a case by case basis between the Client and Model.
Territory. Additional fees are also payable, and subject always to the Model's prior consent, for the right to use the Model’s image for all known or anticipated territories other than the United States.
Lingerie Bookings. Client must specify the exact type of lingerie at the time of the booking. EMG must clear lingerie bookings with Model before accepting any lingerie bookings.
Fashion Shows and Live Events. Catwalk bookings and live events provide the Client with the right to make use of a Model's services on the catwalk and/or event for the specified show and the right to allow photographers to be present to take photographs and videos of the show or event on the basis that all such material 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 (included, but not limited to, look books, ecommerce and broadcasting and/or live streaming of the specified show), it must be negotiated and agreed with the Model, via EMG as Model’s manager.
Test Shoots. The photographer may only use Test Shots for self-promotion of themselves and/or Model. All usage must be negotiated with EMG.
Invoicing. All compensations, service fees, Model rate, cancelation fees and any other fees are payable in lawful money of the United States. The Client agrees to supply full and accurate billing information at the time of the booking.
Payment Terms. Standard payment terms are Net 14 unless otherwise agreed in writing. If a booking location is set in the state of New York, Client hereby agrees to comply with all payment terms set forth in “Freelance Isn`t Free Act”. If a booking location is set in the state of the California, Client hereby agrees to comply with California Labor Code and provide the payment in full on the last day of the booking.
Deposit. For bookings involving travel, bookings of 3 (three) days duration or longer, and for all bookings with billing Client residing outside of the United States, deposit equal to half the booking fee must be paid at the time of the booking, balance due is on the last day of the booking unless otherwise agreed in writing.
Responsible Party. Unless otherwise appointed prior the booking in writing, the person or entity who has requested the Model, signed the Voucher and/or signed the Booking Confirmation or acknowledged receipt of the Booking Confirmation accepts responsibility for payment for services rendered.
Ultimate Client. EMG reserves the right 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 Model specifically agrees otherwise, in writing, no usage for the Model's image is permitted until payment is received in full.
EMG Fees. The EMG charges EMG Client Service Fee (“Service fee”) on all booking fees including, without limitation, hourly, daily and overtime fees and all fees for the right to use and all fees negotiated for any other service to be supplied by the Model. Both Service Fee and Model Fees will be invoiced by the EMG. Client also shall owe EMG a fee for any subsequent bookings as long as Model is represented by EMG.
Failure to Make Payment. If the Client fails to pay in full on the due date, the amount outstanding shall bear interest both before and after any judgment at eighteen percent (18%) per annum compounding daily from the due date until up to and including the date that payment is made in full. Furthermore, the Client shall be responsible to pay for all expenses and costs incurred in recovering any outstanding monies, including debt collection fees or Solicitor's costs that may arise.
Third Party. 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:
- Enters into an agreement with the Client on the same terms as these Terms and Conditions; and
- Acknowledges its obligations to EMG including but not limited to the obligation to pay EMG and Model according to these Terms and Conditions; and
- Acknowledges that the third party end user may not use Model’s Image (as defined above) until payment is received and that at all times the third party end user is subject to any restrictions and limitations established in the booking form, Release or any other document establishing usage as defined above.
Exclusivity and Conflicts. Unless otherwise agreed in Booking
Confirmation, the Model’s services to the Client is 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 prior the booking when the use of
Mode's image or the service to be supplied by a Model in relation to a
product is required on an exclusive or semi‐exclusive basis (for example
sector specific or territorial exclusivity)
Should there be any question regarding the definition of exclusivity or the definition of a competing product, the Model will use his or her best judgment. Model can supply services to and allow use of Model's image by any competitor unless such an exclusivity fee is negotiated and paid by Client. It is Client's responsibility to carry out any research and determine whether use of the Model’s image creates a conflict. Model agrees to cooperate with any such research.
Cancellation of booking by the Client. Cancellations that are received within 24 (twenty-four) business hours of the booking call time will not relieve the Client of its responsibility to pay in full the fees established in any prior communication, be it email, Booking Confirmation or other document. If a Client cancels a booking within 48 (forty-eight) business hours of the booking call time, then the Client will be charged fifty percent (50%) of the applicable fee. For cancellation on bookings involving travel, bookings of 3 (three) days duration or more and bookings with no cancellation policy, half the booking fee will be charged.
Cancellation of booking by Model. Client holds EMG harmless for cancellations and no-shows by Model and in the event of flight/transportation delays or cancellations. In the event of Model cancellation or flight/travel cancellations, EMG will make best efforts to offer the Client a suitable replacement. It is the responsibility of the Client, not EMG, to procure the necessary insurance.
Weather Permit Cancellations. If a booking is 'weather permitting' this must be made clear at the time of booking. At the first cancellation, half the fee is charged if not rescheduled within two weeks of the original booking date. At the second cancellation, the full fee is then charged.
Professional Conduct. Client agrees to ensure that the Model is treated respectfully and professionally and take all steps necessary to ensure that the safety, health and wellbeing of the Model is protected and maintained at all times during the course of the booking, including during travel. Such steps shall include without limitation:
- It has full capacity to enter into these Terms and Conditions and to perform its obligations under these Terms and Conditions; and
- The booking form is executed by a duly authorized representative of the Client; and
- It will take all steps necessary to ensure that the Model is protected and treated in accordance with all applicable laws; and
- 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 (including but not limited to any employment law or health and safety requirements in effect from time to time); and
- It will promptly disclose to EMG, as Model’s manager, 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 ensure that the Model is suitably prepared and able to perform the services.
Indemnity. The Client shall indemnify EMG and keep EMG indemnified against all costs, expenses, damages and losses suffered or incurred by Client or any Third Party (including but not limited to all legal costs and expenses on a full indemnity basis) arising out of or in connection with:
- Any breach by the Client of these Terms and Conditions; and
- Any breach by any third parties engaged by the Client; and
- Any claim brought by a Model or a third party against EMG 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 EMG to be in breach of the terms of an exclusive agreement with Model or such third party; and
- Any breach by the Client of any applicable laws and regulations including but not limited to any breach of applicable health and safety or employment laws and regulations as amended from time to time.
Intellectual Property Rights. Client and any photographer/camera
operator and anyone obtaining rights from or through the photographer,
camera operator or Client is not entitled to use any of Model`s images for
any usage beyond that agreed or permitted and documented in the
applicable Booking Confirmation and / or Release.
The photographer, camera operator or Client to this extent agrees to restrict use and exploitation of the copyright content of the photograph/video or any other intellectual property rights. Copyright to the photographer and camera operator is not entitled to use any of the images he/she takes for any usage beyond that agreed. If Client is not the photographer/camera operator, it is Client responsibility to draw all these terms and conditions to the attention of the photographer/ camera operator and obtain his/her agreement to them before the shoot commences.
All rights not expressly granted to Client under these terms and conditions are hereby reserved to the Model as appropriate. In particular, the Client acknowledges and agrees that the Model is the owner or license holder of all commercial rights and intellectual property rights relating to the Model 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 EMG 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, Release 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 EMG and the Model may use the images resulting from any booking in any form whatsoever, solely in order for the Model and EMG to promote the Model and in the search of future job opportunities for the Model. The Model and EMG acknowledge and agree not to exploit the images for commercial purposes, other than as set out in the Booking Confirmation, Release and these Terms and Conditions.
Liability and Insurance. No party excludes or limits its liability under
these Terms and Conditions for:
- Death or personal injury caused by its negligence; or
- Fraudulent misrepresentation; or
- Any other type of liability which cannot by law be excluded or limited.
EMG 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 EMG 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 Model, EMG or
combination thereof relating to the specific engagement or booking.
Models are not the employees of EMG. It is the Client's responsibility to carry out a risk assessment of the location equipment and the work conditions.
EMG shall not be liable for:
- Loss of business, use, profit, anticipated profit, contracts, revenues, goodwill or anticipated savings; or
- Product recall costs; or
- Failure by the Model to attend a booking for whatever reason; or
- Damage to the Client’s reputation; or
- Consequential, special or indirect loss or damage;
The Client shall effect and maintain (and shall require its ultimate Client, if any, to maintain) throughout the continuance of this 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 insurance policies shall include without limitation:
- Cancellation insurance to protect against the potential liabilities which EMG and the Client may incur, and
- Employee liability insurance, as required or otherwise, which covers any Model who is delivering the services to the Client under the Client’s direction and control as if he/she were an employee of the Client, in an amount sufficient to cover the health and safety and future earnings of such Models;
- Insurance to protect the Model and EMG should any damage, injury or loss be caused whilst the Model is providing services to the Client; and
- Travel insurance to cover the activities of the Model while travelling to and from the location of the services.
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 by EMG and agreed by Model. The client shall not attempt to negotiate, nor allow others to negotiate, with the Models directly.
Complaints and Disclaimer. Any cause for complaint must be reported to EMG by the Client as soon as it arises. Complaints cannot be considered and/or dealt with effectively after the services have been delivered by the Model and cannot be considered in retrospect and will not be grounds for non-payment of invoices by Client. While EMG will use reasonable endeavors to ensure that the Models provide a satisfactory and efficient services to Clients, EMG does not control the activity of the Model as she/he is self-employed and cannot be held responsible for a Model's conduct or behavior while delivering the services and in this regard EMG shall not be held liable for any costs, expenses or losses suffered as a consequence of the behavior or conduct of any Model.
Force Majeure. EMG 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 EMG including without limitation fire, floor or catastrophe, acts of God, insurrection, workforce action, war or riots, (an "Event of Force Majeure") and EMG’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.
Interpretation of Terms and Conditions. For the purpose of the relationship between the Client, Model and EMG the Client acknowledges, accepts and agrees that Model is the supplier of services which shall be strictly and exclusively governed by these Terms and Conditions. If there is any conflict between any of these Terms and Conditions and the Booking Confirmation then the terms of these Terms and Conditions shall prevail without detriment to the remaining unaffected terms of the Booking Confirmation form and / or Voucher. The Booking Confirmation and Voucher are 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 and Voucher.
For the purpose of these Terms and Conditions the words "agreed", means agreed in writing in the Booking Confirmation and / or Voucher signed by duly authorized representatives of EMG, Model and the Client.
No Agency. No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by these terms and conditions.
Unenforceability of Provisions. 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, provided that the remaining terms, conditions and provisions will continue to be valid to the fullest extent permitted by law.
Termination. 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.
Warranties. 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 such parties jointly and severally.
Waiver. 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 agreed in writing.
Amendment. No variation or amendment of this Agreement shall be valid and binding unless in writing and signed by an authorized representative of each party.
Legal. These terms and conditions, booking form and voucher (when applicable) 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. This Agreement, its validity, the construction of its terms and effect, shall be interpreted and governed by the laws of the State of New York without reference to its choice of law. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, it will be subject to the exclusive jurisdiction of the state and federal courts located in New York, New York and Client and EMG hereby irrevocably submit to personal jurisdiction, and waive any defense of inconvenient forum.In any action or proceeding at law or in equity to enforce any of the provisions or rights under this Agreement, the prevailing party shall be entitled to recover from the other party all fees, costs, expenses and reasonable damages including without limitation, costs, expenses, and fees on any appeals.