BMA (Trading under Agency Management Limited) is an employment agency regulated by the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Business Regulations 2003.
These Terms and Conditions set out the agreement between BMA and clients of BMA (each a Client) for the supply of talent to the Client.
These Terms and Conditions supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between BMA and the Client, whether written or oral, relating to their subject matter.
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.
BMA requires all negotiations and contracts regarding talent represented by BMA to be conducted exclusively through BMA, and the Client will not enter into any arrangement with talent represented by BMA or previously booked by the Client through BMA, which does not acknowledge or otherwise seeks to circumvent or avoid BMA’s role as an employment agency without the prior written consent of BMA.
1.1 The Working Day. A working day is 8 hours between 09.00 hours and 18.00 hours, and includes a lunch break of one hour. For Photographic Assignments the minimum booking is 4 hours. For Press Days, Fashion Shows and Promotional Assignments the minimum booking is half a day (4 hours). Clients are responsible for all talents’ meals on all bookings outside the London area (see 1.3.)
1.2 Overtime Rates. This will apply as follows: (a) the overtime rate is 150% of the normal hourly rate between 18.00 and 24.00, and 200% between 1.00 and 9.00. (b) Work on Saturdays 150%, Sundays and Bank Holidays 200% of the normal hourly rate. (c) A special rate to be negotiated for night work at weekends between 24.00 and 09.00 hours.
1.3 Travelling Time /Expenses are fully inclusive and are usually charged from talents place of residence to the location and return: this applies to 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).
1.4 Fittings. Fees to be negotiated at an hourly rate, with a minimum booking of 4 hours.
1.5 Location Bookings. When a location booking is made, the Client must provide transport there and back unless agreed otherwise. If a talent on location is prevented from returning to London to work, the daily fee is to be paid.
1.6 Weather Permitting Bookings. At the first cancellation half fee is charged unless a talent arrives at the location in which case the full fee will be charged. At the second cancellation, the full fee is charged.
1.7 Poster and Show card Fees/Pack and Media Covers. These are subject to special negotiations.
1.8 Restrictions. The restricted use of the photographs will be negotiated by BMA at the time of the booking. Unless otherwise agreed and included on the booking form, the 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 from the date of booking in the United Kingdom. Such permitted use and entitlement is strictly subject to payment in full of all fees owed to BMA prior to the image’s first use. Any further usage including picture syndication to be negotiated and agreed in advance with BMA. The Usage (4.0) the Invoicing (5.2) and the Copyright (5.4) regulates this restriction.
1.9 Photographs: All photographs and videos of the talent must be provided to BMA within 15 days of the booking. The copyright in all photographs and videos of the talent taken at the booking are owned by the photographer and licensed to BMA for use on its website. Any photograph or image of the talent taken at the booking and used on social media must credit BMA (@london.BMA or link back to BMA’s website at BMA.london), otherwise BMA shall be entitled to charge the Client additional usage fees for such social media use.
1.10 Fashion shows. All photographs and videos of the talent, all such material (or reproductions etc. As set out in 4.1 above) of the show are for reporting purposes only. The Client is responsible for ensuring that all present at a fashion show are aware of this condition. If any other usage is required it must be negotiated at the time of the booking.
2. PROVISIONAL BOOKINGS
Provisional Bookings will be automatically cancelled if they are not confirmed within 24 hours of the proposed booking, or if a definite booking is offered and the provisional cannot be confirmed
3.1 By the client: Bookings cancelled within 48 hours of the commencement of the booking will be charged at full fee, bookings cancelled within 72 hours of the commencement of the booking will be charged at half-fee. In the case of a weekend, a full fee will be charged. For bookings of three days or more a cancellation period equal to the length of the booking must be given otherwise full fee will be charged.
3.2. By the Agency: 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 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 cancellation.
4. ADDITIONAL FEES
4.1 Usage. Additional fees are payable for the right to use the talent’s image (or reproductions and adaptations of part or complete derived from that image, or any other representation of it, either part or complete whether alone or in conjunction with any wording or other images, photographs, drawings or material of any other nature including electronic imaging) from all known or anticipated purposes other than the initial permitted use (i.e. packs, posters, show cards, media covers, swing tickets, etc.) 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 purpose or purposes agreed. The Client is wholly responsible for notifying BMA of any changes to this commission.
4.2 Territory. Additional fees are payable for the right to use the talent’s image (or reproductions etc. As set out in 4.1 above) for all known or anticipated territories other than the United Kingdom. Unless agreed the additional fees cover the right to use one image for one year from the date of booking, in the territory or territories agreed. This use must be included at the time of the booking or use is excluded from all rights.
4.3 Exclusion Fees. A special fee will be negotiated when the work is in connection with a product, which precludes work for competing products. The Client is responsible for interpreting whether competing work has been done. When a talent endorses a product they are unable to complete assignments for any other competitor unless an exclusion fee has been agreed.
4.4 Additional expenses: All expenses incurred by the Agency on the clients’ behalf will be charged to the client and will include an uplift of 20% of the total amount of the expenses.
4.5 The agency is solely responsible, in perpetuity, for all modifications, extensions and renewals of any booking.
5.1 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 20% per cent per annum 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.
5.2 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 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 use of the images including but not limited to territorial restrictions and restrictions as to media in which the images may be used.
5.3 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. TEST & EXPERIMENTAL PHOTOGRAPHY
6.1 The Client or photographer are not entitled to use test and/or experimental photographs or test commercials for commercial purposes unless specific arrangements have been made before the photographic session.
6.2 Images taken for test purposes may only be used to promote BMA’s website and in the photographer’s and creative’s (stylist’s and make-up artist’s) own portfolios. The photographer or creative may not assign copyright in the images, exploit the copyright or grant a license to exploit the copyright. For the avoidance of doubt, there will be no usage of any imagery from the test shoot (including but not limited to any commercial or editorial use) unless negotiated and agreed in advance in writing with BMA.
7. TALENT CARE & SAFETY AND INSURANCE
7.1 The Client shall ensure that the talent is treated with respect and professionalism and that the Client takes all necessary steps to ensure the safety, health and wellbeing of the talent is protected and maintained at all times whilst providing services to the Client.
7.2 The talent will not be photographed or be depicted nude or partially nude (lingerie/underwear), with fur or with tobacco without prior written approval from BMA. See-through, bathing suit or lingerie photography require the express prior written approval of the agency. The use of the Talent’s image must not be pornographic, derogatory, or a cause of ridicule or embarrassment to the talent. The image must not be altered or distorted.
7.3 Subject to the above restrictions, behind-the-scenes filming is permitted on condition that the talent is hair-and-make-up ready.
7.4 The client must provide the talent with an appropriate changing and dressing area to ensure that the talent can prepare for the provision of the services and also maintains his/her privacy.
7.5 It is the Client’s responsibility to carry out a proper risk assessment of the location, equipment and work conditions; any risk to Health & Safety known to the Client must be discussed with the talent agent at the time or before the time of the booking. The talent may decline to proceed with the booking if, in the talent’s opinion there is any risk to the talent’s health and safety. The Client is responsible for the talent’s safety when the talent is providing services in connection with the booking. The Client is obliged to make sure that all other people engaged in connection with the booking and associated travelling are properly qualified and insured. The Client is responsible for the talents’ health and safety as if the talent were an employee of the Client. The Client will maintain adequate insurance cover to underwrite its obligation to the talent.
7.6 Always include a credit in the form of “talent’s name” @ “the Agency”, wherever a credit is applied.
7.7 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, 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.
7.8BMA is not responsible if the talent fails to attend a booking. The Client is advised to insure against any losses, which might be suffered if the talent does not keep a booking because of ill health, or some other reason.
8. BMA PRACTICES
8.1 Dissatisfaction. Any cause for dissatisfaction must be reported to BMA during the course of the assignment. Otherwise BMA disclaims all responsibility for any loss financial or howsoever caused.
(a) BMA charges a fee to the Client for the services to be supplied by the talent (worker.) The agent will invoice both agency and talent fees. Unless otherwise agreed at the time of the booking the talent disbursement is included in the invoice total. Equity contracts, the fee negotiated is the talent’s fee from which agency commission will be deducted at 38% of the invoice total. VAT and any agreed expenses will be added where appropriate.
(b) BMA’s standard practice is to accept bookings as a contract over the telephone and/or by e-mail and/or online chat. BMA will confirm this contract by email. The Client responsible for commissioning the booking will be invoiced and solely responsible for payment unless otherwise agreed at the time of booking.
(c) The Client is liable to pay BMA for the agreed contract irrespective of any post assignment contentions.
(d) BMA reserves the right to invoice the primary client (the owner of the product i.e. designer/manufacturer/owner of product.) For example this may be undertaken if the Client is booking on behalf of the primary client in which case the primary client is liable to pay the invoice. All fees for usage are for the right to use the talents image and once agreed are payable whether or not the right is exercised. Unless the agent specifically agrees otherwise, in writing, no usage for the talents’ image is permitted until payment is made in full. The agency reserves the right to alter payment terms.
(e) Use of the photographs/material is not permitted until payment for all fees has been made.
(f) All fees will be invoiced by BMA unless otherwise negotiated at the time of the booking and verified in writing by the Client.
(g) VAT will be added to the invoice where appropriate as lawfully required by HM Customs and Excise
8.3 Payment for assignments must be made within 7 days from the completion of the assignment.
8.4 Copyright. The photographer and/or the Client and anyone obtaining rights from or through the photographer/client is not entitled to use any of the images for any usage beyond that agreed or permitted under sections 1,8.1,9, and 4. The photographer/client to this extent agrees to restrict use and exploitation of the copyright. If the Client is not the photographer, the Client is to draw all these terms and conditions to the attention of the photographer and obtain his agreement to them before the shoot commences. The Client commissioning the photographs (or reproductions and adaptations of part or complete picture) is restricted by copyright. The copyright is negotiated by BMA at the time of the booking. The Usage (4.0) and Invoicing (5.2) regulates this copyright. Copyright remains the property of BMA until all images, reproductions, and adaptations, part or complete are paid for in full.
8.5 Assignment Contract details
(a) BMA will invoice the Client on the talents’ behalf.
(b) BMA will offer a conditional contract. On accepting, the Client is liable to fulfil this contract. BMA will supply the “best of knowledge” assignment details of this contract by email. Each contract applies to any one offer only. Each contract cannot be applied to any other offers past or present.
(c) The contract will quote the individual talent fees and the Client fee for hiring each individual talent for completing the contract in full. The contract will give the “best of knowledge” assignment details of this contract e.g. time, date, place, wardrobe, restrictions, working hours, client fee, talent fees, proposed additional fees, etc. The Client on being emailed (time and dated franked by the email) the contract by BMA must complete the contract in full for the contracted fee otherwise the Client will be liable for any losses incurred.
(d) On Equity related assignments, section (c) applies.
(e) BMA reserves the right to negotiate any post assignment disputes by any party on behalf of the individual talent and client. Any post assignment resolutions negotiated by BMA will be judged by BMA as to be fair and reasonable to all interested parties. The BMA decision is final
8.6 Featured Talent. Defined by (a) be required to act individually in a medium shot, or more closely, or (b) possible individual direction, or (c) a possible direct relationship to perform with a visual featured talent, or (d) possible visibility and recognizable in a crowd or individual scenes, or (e) appear in a vignette either individually or with others.
8.7 Talent upgrade. If the talent is upgraded to a featured talent, the full fees and usage fees will apply.
9. REPRODUCTION RIGHTS
9.1 Images. All images and details reproduced in association with BMA are supplied by the individual talent and with the full permission and consent of the individual talent. BMA cannot be held responsible for any loss howsoever caused through the talent misrepresenting themselves in any way.
9.2 Permission. The talent is solely responsible for obtaining all the necessary copyright permits to reproduce their images in association with BMA. BMA cannot be held responsible whatsoever for any copyright infringements however caused or associated. All images and details reproduced are taken in good faith from the talents/associates by BMA.
9.3 Media Reproductions. BMA reserves all rights to reproduce in any media (electronic, telegraphic, print, etc) any images supplied to BMA by any individual talent.
10.1 All matters relating to the use of the talent image, any other services supplied by the talent and all fees must be negotiated and agreed only with BMA. The Client or the photographer or any other person on their behalf or connected with them must not obtain the talent’s signature on any document or attempt to make verbal agreements to anything. Any such signing or proposed verbal agreement is not binding on the talent or BMA the agent. BMA must have a copy of the proposed document for signature prior to the assignment. If in agreement BMA will sign this document and supply a copy of this signed document to the Client. All communication relating to talent must be made through BMA and the Client must not store or use talent’s contact details in any way.
10.2 If the client or the photographer or any other person on their behalf or connected with them obtains the talent’s signature on any document or the talent’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 talent 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).
10.3 In the event that the BMA has to pursue legal advice or debt collection agencies, BMA reserves the right to charge for all costs incurred, including third party cost.
10.4 BMA acts solely for and on behalf of our talents who are self-employed persons.
10.5 To the fullest extent provided by law, BMA limits its liability under these Terms and Conditions, whether such liability arises in contract, tort or otherwise, so that the maximum liability of BMA 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 BMA.
10.6 BMA shall not be liable for: (a) loss of business, use, profit, anticipated profit, contracts, revenues, goodwill or anticipated savings; (b) product recall costs; (c) failure by the talent to attend a booking for whatever reason; (d) damage to the Client’s reputation; (e) consequential, special or indirect loss or damage; even if BMA has been advised of the possibility of such loss or damage.
10.7 The Client’s sole remedy against the talent for loss or damage arising out of the performance or non-performance by the talent under the terms of the booking form will be limited to direct, actual damages incurred by the Client and in no event will the talent’s liability exceed the compensation, excluding the reimbursement of expenses, actually received by the talent from the Client.
11.1 The Client warrants and represents to BMA 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 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, regulations, orders and other similar instruments; and
(d) it will promptly disclose to BMA all necessary information and details relating to the provision of the services by the talent to enable BMA to ensure that the talent is suitably prepared and able to perform the services.
11.2 The Client shall indemnify BMA and keep BMA indemnified against all costs, expenses, damages and losses suffered or incurred by BMA (including but not limited to all legal costs and expenses on a full indemnity basis) arising out of or in connection with:
(a) any claim brought by a third party against BMA 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 BMA to be in breach of the terms of an agreement with such third party; and
(a) 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.
12.1 Neither party shall make any statement or disclose any information regarding this Agreement without the prior written consent of the other party (save to allow for proper disclosure of information to either party’s professional advisors or as required by law). The Client agrees not to make any comment to the media or others, which shall portray BMA in a negative light.
12.2 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
12.3 These Terms and Conditions do not confer any benefit on a third party and a person who is not party to this Agreement has no rights under The Contracts (Rights of Third Parties) Act 1999 or otherwise.
12.4 Any changes to this Agreement will be notified to you in writing (which for the avoidance of doubt, may include notification by email). No variation or amendment to this Agreement shall be binding unless agreed in writing or ‘accepted’ electronically by the Client.
12.5 If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable then such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect.
12.6 These Terms and Conditions shall be governed by the laws of England and Wales and the parties shall submit to the exclusive jurisdiction of the English Courts.