Terms and Conditions of Engagement of Vortex Management ABN 20599416498 and talent:
Within the below, “we” and “us” will constitute Vortex Management and “you” will constitute the talent that Vortex Management is engaged to represent.
1. Provision of Services
1.1 We are an entertainment industry representative engaged in the business of introducing Talent for our clients’ Events
1.2 You wish to engage us from time to time to provide the Services, subject to these terms and conditions.
1.3 If you instruct us to provide you with the Services, that will be taken as your acceptance of this agreement and any related Special Conditions.
1.4 If you wish to engage our Services for an Event, we will send you a Booking Form for completion. Such Booking Form will request details about the Event, including but not limited to the following:
(a) Event date
(b) start and finish times
(c) Event address
(d) wardrobe requirements
(e) hair, make-up and grooming requirements
(f) contact name and number
1.5 On receipt of the completed Booking Form, we will provide you with an estimate of the Event Fee, whether written, written and partly oral or wholly oral.
1.6 If you do not dispute the Event Fee within 24 hours of receipt of the estimate, the booking will be deemed a Confirmed Booking.
2. Relationship between Vortex Management, Clients and Talent
2.1 The Talent has engaged Vortex Management to be their representative and Vortex Management has the authority to enter into contracts with any and all Clients on their behalf.
2.2 The parties acknowledge and agree that, unless otherwise advised in writing by Vortex Management or the Talent:
(a) we or the client are the ‘end-user’ as defined in the Australian Taxation office’s (ATO) “PAYG withholding for performing artists” guidelines (Guidelines)
(b) the Talent is a ‘Performing Artist’ as defined in the Guidelines
(c) Vortex Management is an ‘intermediary’ as defined in the ATO’s Superannuation Guarantee Ruling SGR 2005/2” (Ruling), and
(d) in accordance with the Guidelines, Vortex Management, in its capacity as an intermediary, is entitled to raise invoices and collect monies on behalf of the Talent.
2.3 In the situations set out in clause 2.2:
(a) a contract is created between you and the Talent once a booking is a Confirmed Booking, and
(b) in accordance with the Guidelines, Ruling and relevant legislation, we must:
(i) withhold PAYG withholding tax at 20% from the Event Fee, and remit such payments to the ATO, and
(ii) pay the relevant superannuation guarantee charge at the rate current at the time of the provision of the Event to the Talent’s nominated superannuation fund. Vortex Management will provide you with tax file number declaration forms and the Talent’s superannuation fund details upon request.
2.4 Where you and we have agreed that we will organise the payment of PAYG withholding tax and relevant superannuation guarantee charge payments, then we will be responsible for the payment of these items on your behalf, and you will pay us the amount of such items.
3.1 You acknowledge and agree that you are the entity employing, engaging or hiring the Talent, and that you will hold adequate levels of workers compensation insurance to cover all Talent used at all locations.
3.2 You must hold adequate levels of all other insurances that are relevant for an Event, including but not limited to public liability insurance.
3.3 Vortex Management is not required to hold, nor currently holds, any such insurance for Talent as it is does not employ, engage or hire the Talent.
4.1 Confirmed Bookings – If you cancel a Confirmed Booking, Vortex Management has the discretion to charge you the cancellation fees set out in clause 6.
4.2 Provisional Bookings – If you request a Provisional Booking, Vortex Management will attempt to co-ordinate Talent to be available for such booking. However, notwithstanding the provision in clause 1.6, Vortex Management is not bound to provide Talent until such time as you accept the estimate and Vortex Management confirms that the booking is a Confirmed Booking. For the avoidance of doubt, Vortex Management may cancel a Provisional Booking, or allow any other booking to take precedence over a Provisional Booking.
4.3 Last Minute Bookings – Vortex Management has the discretion to charge an additional fee for Last Minute Bookings or bookings made over a weekend or public holiday.
5.1 You must pay an Event Fee in relation to each Event for which you require the Services of Vortex Management.
5.2 An Agency Service Fee may be payable in addition to the Event Fee and if applicable will be set out in the estimate.
5.3 A deposit in the sum of 50% of the Event Fee will be invoiced once a booking becomes a Confirmed Booking.
6. Cancellation fees
6.1 If you cancel a Confirmed Booking then you must pay the following fees:
(a) 100% of the Event Fee if cancellation is within 24 hours of the Event;
(b) 75% of the Event Fee if cancellation is within 48 hours of the Event;
(c) 50% of the Event Fee at any other time after a Confirmed Booking is made;
6.2 If a Confirmed Booking for an Event that is three days or more in duration is cancelled within a period equal to or less than the duration of the Event, 100% of the total Event Fee will be due and payable.
6.3 If the hours specified in the Booking Form are reduced within 48 hours of an Event, cancellation fees may apply at the discretion of Vortex Management.
7. Usage and Additional Fees
7.1 Where you engage our Services in relation to the provision of Talent to be photographed:
(a) You must notify Vortex Management of any intended usage before the commencement of the shoot, and
(b) You may only use photography for the purpose for which it was originally shot as itemised in the Booking Form.
7.2 You must not use images of the Talent in any way, including but not limited to the use of the images in advertising, promotional materials and websites, unless we otherwise agree prior to the Event. Any usage rights in relation to images of the Talent will incur additional fees, and usage rights will not be granted to you until payment in full has been received.
7.3 Usage rights will be provided on the basis of an agreed territory and use.
7.4 If you require an extension of usage rights or territory in relation to the usage rights, you must notify us of your request, and we will provide you with a quote for the relevant usage right extension.
7.5 We reserve the right to refuse the release of images for any use, for any reason, including extensions of existing print and television campaigns.
8.1 Unless otherwise agreed in writing:
(a) 50% of the Event Fee is payable as a deposit within 14 days of issue of the initial invoice by Vortex Management
(b) 50% of the Event Fee is payable on completion of the Event within 14 days of issue of the final invoice by Vortex Management, and
(c) interest is payable on outstanding amounts at 10% per month, calculated daily.
8.2 Payment can be made by cheque (sent to our Sydney office), electronic funds transfer to our bank account (bank details appear on all invoices) or credit card by completing a credit card authority in a form approved by Vortex Management. If you provide us with a credit card authority, you confirm that we are authorized to charge the credit card for the deposit of the Event Fee and, if any part of the balance of the Event Fee is still owing on the due date for payment of the final invoice issued by Vortex Management, the amount of the unpaid balance of the Event Fee and any other amounts owing to us in accordance with this agreement.
8.3 If you fail to pay the amounts due, in accordance with these terms and conditions, you must pay for all expenses and costs incurred in recovering any outstanding monies, including debt collection fees and legal costs, and we may at our absolute discretion require the payment of interest at the rate of 10% per annum (calculated daily) on the amount of any amounts outstanding.
9. The Working Day
9.1 Normal working hours are between 7am and 6pm, Monday to Saturday. Penalty rates may apply outside these hours.
9.2 For bookings exceeding 8 hours, a daily rate will need to be negotiated at time of booking.
10. Calculation of Fee
10.1 If an Event finishes earlier than specified in the Booking Form, the Event Fee remains payable.
10.2 If an Event finishes later than specified in the Booking Form, overtime and/or penalty rates may apply at the discretion of Vortex Management.
10.3 Fittings will be charged at $75 per hour, plus the Agency Service Fee, where applicable, plus GST.
10.4 Manicures, Tanning or additional hair maintenance requests (Maintenance Maintenance) will be charged as set out in the estimate, unless specifically negotiated, as well as the actual cost for the requested Maintenance to reimburse the Talent.
10.5 Vortex Management may provide discounted rates for regular editorial Talent, however these rates will only apply where the publication is on sale nationally in Australia through newsagents or supermarkets or available by paid subscription.
If this criteria is not met then standard rates as set out in the estimate apply to the booking.
10.6 A fee for travel time for travel outside a 30MINUTE radius of the CBD (including time related to traffic delays) is payable by you as determined by Vortex Management.
10.7 If client does not pay PAYG and Superannuation on behalf of the talent, Vortex Management will pay talent on our agreed terms.
If you have any issues during an Event with any of the Talent, then you must advise Vortex Management as soon as possible, and in any eventduring the course of the Event. No claims or alterations in the Event Fee will be accepted after the final invoice is issued at the completion of the Event. Vortex Management acts solely for and on behalf of the Talent and whilst making every endeavour to provide a satisfactory and efficient service, Vortex Management cannot be held ultimately responsible for the conduct of the Talent at an Event.
12.1 A special fee will be negotiated in circumstances where you require Exclusivity.
12.2 It is your responsibility to check, at time of booking, whether any conflicting work has been previously done by the Talent.
12.3 If the Talent advertises a product, he/she is able to work for any competitor in the future unless an exclusion fee is negotiated and received.
13. Termination and Suspension
13.1 We may at any time at our discretion suspend the Services and/or terminate this agreement in relation to any Services by providing you with notice in writing in the following circumstances:
(a) if you fail to make payments to us by a due date, or
(b) If you breach any obligation under this agreement.
13.2 Such termination will not in any way prejudice any of our rights including our right to receive payment for Services rendered.
13.3 Either party may terminate this agreement by written notice to the other if an insolvency event occurs to the other party.
13.4 If you terminate all or part of the service agreement, all outstanding payments due by you to us will become due and payable.
14.1 You acknowledge that Information (including creative concepts) disclosed to you by Vortex Management whether through a proposal or presentation intended to secure any engagement agreement or during the course of or as part of the performance of an individual engagement, is proprietary, confidential or a trade secret of Vortex Management. Except as contemplated in a particular service engagement agreement, you must not and must not permit any of your officers, employees, agents, contractors or related companies to use or to disclose to any person any such information without the prior written consent of Vortex Management unless it is information which is otherwise in the public domain (other than as a result of wrongful disclosure by the Client) or information required to be disclosed by law where advance notice of the required disclosure is given to Vortex Management.
14.2 For the duration of any service engagement, and for 6 months thereafter, you must not employ, directly contact or engage (or be knowingly involved in another employing or engaging) any Associate of Vortex Management with which you had contact duringthe course of the service engagement or solicit such employment or engagement, including via social media.
15. Privacy Collection Statement
15.1 We collect personal information from individuals through the Booking Form and our credit card authority form, for the purpose of processing your request and payments. If the requested personal information is not provided to us we may not be able to process your request or payment. We do not disclose personal information to any third parties without consent, unless authorized or required by law.
16. Warranties and indemnities
16.1 You acknowledge that you have not relied on any advice, representation or warranty given or made by us in connection with the Services and which is not expressly stated in this agreement.
16.2 To the extent permitted by law, all warranties, conditions and representations by us are excluded, and neither we nor any of our officers, employees, agents or related bodies corporate will be responsible or liable in any way (including for negligence) for any loss, damage, liability or costs incurred, suffered or sustained by you or claims made against you, and you agree not to make any claim against us, due to or arising out of an Event or our provision of the Services. If a term is implied by law into this agreement and the law prohibits provisions in a contract excluding or modifying liability under that term, then such term will be included in this agreement. However to the extent permitted by law, our liability for breach of such term will belimited, at our option, to one or more of the following:
(a) the supply of the Services again;
(b) the payment of the cost of having the Services supplied again
16.3 We do not guarantee that our Services will provide any specific results.
16.4 Without limitation, we will under no circumstances be liable for any indirect or Consequential Loss you do or may suffer.
16.5 You indemnify and hold us harmless in respect of any and all claims, loss or damage of any kind whatsoever (including legal costs and disbursements on a full indemnity basis), arising directly or indirectly out of any:
(a) act or thing done by us in good faith and purportedly pursuant to a right granted to us under the provisions of this agreement,
(b) any failure by you to withhold or pay (or pay on time) any PAYG tax or superannuation guarantee charge payments in relation to the Talent
(c) any injury caused to or by the Talent during the period in which they are engaged by you, and
(d) any other breach by you of any of the terms of this agreement.
17.1 You must not during the term of this agreement, or for a period of 6 months following completion of any Services:
(a) employ, contact, contract or hire the services of any of our employees, contractors, agents or other personnel
(b) employ, contact, contract or hire the services of the Talent either directly or indirectly other than through Vortex Management (or attempt to do any of the foregoing), or
(c) induce or attempt to induce any of the Talent, our employees, contractors, agents or other personnel to terminate their agreements or contracts with us.
18.1 All notices and consents required or permitted to be given under this agreement must be in writing and given by personal service, pre-paid postage or a facsimile transmission at the addresses of the parties set out in this agreement or to such other address as either party may designate to the other by written notice.
18.2 You must not assign or otherwise transfer any rights or obligations of this agreement without our prior written permission.
18.3 If we do not act in relation to a breach by you of this agreement, this does not waive our right to act with respect to that or subsequent or similar breaches.
18.4 Nothing stated in this agreement constitutes you and us as partners, or creates the relationship of employer and employee, master and servant or principal and agent between the parties. Neither party has authority to make any statements, representations or commitments of any kind, or to take any action which shall be binding on the other party, except as expressly provided in this agreement or authorised in writing.
18.5 We may appoint sub-contractors to perform Services under this agreement without your prior written consent.
18.6 If any provision of this agreement is held to be invalid in any way or unenforceable, the remaining provisions will not in any way be effected or impaired. This agreement must be construed so as to most nearly give effect to the intent of the parties as it was originally executed.
18.7 This agreement is governed by the laws of the State of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of that State.
19. Definitions and Interpretation
Agency Service Fee means an additional fee calculated at 15% of the Event Fee plus GST.
Booking Form means the form completed by you setting out the details of the Event.
Confidential Information means all information that is not generally known by the public and includes, but is not limited to, inventions, discoveries, trade secrets, and know how, computer software code, designs, routines, algorithms, and structures, product information, research and development information, financial data and information, passwords, business plans and processes, any search engine optimization methods and techniques and any other information belonging to either party and which either party learns of by virtue of this agreement.
Confirmed Booking means a booking for an Event as set out in clause 1.6 or clause 4.2.
Consequential Loss includes, but is not limited to, loss of use, lost production, lost income or profits, loss of opportunity, lost savings, increased or wasted expenses, delay or lost time, loss of or damage to goodwill, increased operating costs, wasted or increased financing costs, loss of or damage to data or records, loss of or unavailability of or damage to tangible or intangible property, claims made against you by others, losses or costs or expenses associated with identification, investigation, assessment, repair, replacement or servicing and any other economic loss or damage and any other special, indirect or consequential loss or damage.
Event includes but is not limited to launches, campaigns, trade shows, in house activations, event hosting, demonstrations, television, print and outdoor campaigns.
Event Fee means the total sum of all fees payable for a Confirmed Booking as set out in the invoice rendered by Vortex Management.
Exclusivity means the exclusive use of a talent/model’s services in association with a particular product brand to the exclusion of competing brands.
GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax.
Last Minute Booking means a booking made within 24 hours of the Event.
Provisional Booking means a request by you for a possible future booking.
Services means the Services that we provide to you.
Talent means individuals who are represented by Vortex Management.
Usage Fee means the fee determined by Vortex Management for additional usage of images as authorised by Vortex Management.
Unless the context requires otherwise:
(a) heading and bold type are for convenience only and do not affect the interpretation of this agreement
(b) a reference to a person includes a corporation or any other legal entity
(c) the singular includes the plural and vice versa
(d) headings are for convenience and do not form part of this agreement or otherwise affect the interpretation of this agreement
(e) the term “includes” (or any similar term) means “includes without limitation”, and
(f) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.