Wink Models T&Cs.
- Wink Models Pty Ltd (ACN 169 677 141) of 85 Williams Street, Darlinghurst, NSW 2010 (Wink, we or us); and
- You (Client or you).
- Provision of Services
- We are an entertainment industry representative engaged in the business of introducing Talent for our clients’ Events (Services).
- You wish to engage us from time to time to provide the Services, subject to these terms and conditions.
- 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.
- 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:
- Job date;
- start and finish times;
- Job address;
- wardrobe requirements;
- hair, make-up and grooming requirements; and
- contact name and number.
- On receipt of the completed Booking Form, we will provide you with an estimate of the Job Fee, whether written, written and partly oral or wholly oral.
- If you do not dispute the Job Fee within 24 hours of receipt of the estimate, the booking will be deemed a Confirmed Booking.
- Relationship between Wink, Clients and Talent
- The Talent has engaged Wink to be their representative and Wink has the authority to enter into contracts with any and all Clients on their behalf.
- The parties acknowledge and agree that, unless otherwise advised in writing by Wink or the Talent:
- you are the ‘end-user’ as defined in the Australian Taxation office’s (ATO) “PAYG withholding for performing artists” guidelines (Guidelines);
- the Talent is a ‘Performing Artist’ as defined in the Guidelines;
- Wink is an ‘intermediary’ as defined in the ATO’s Superannuation Guarantee Ruling SGR 2005/2” (Ruling), and
- in accordance with the Guidelines, Wink, in its capacity as an intermediary, is entitled to raise invoices and collect monies on behalf of the Talent; and
- no persons will under 16 will be represented by Wink without parental permission. Each person under 16 must have parental permission on each job and casting. Client maintains responsibility to fulfil all obligations set out by the governing body in their respective state in regards to employing those under 16.
- In the situations set out in clause 2.2:
- a contract is created between you and the Talent once a booking is a Confirmed Booking, and
- in accordance with the Guidelines, Ruling and relevant legislation, you must:
- withhold PAYG withholding tax at 20% from the Event Fee, and remit such payments to the ATO, and
- pay the relevant superannuation guarantee charge at the rate current at the time of the provision of the Event in addition to the Event Fee to the Talent’s nominated superannuation fund. Wink will provide you with tax file number declaration forms and the Talent’s superannuation fund details upon request.
- 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.
- 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.
- You must hold adequate levels of all other insurances that are relevant for an Event, including but not limited to public liability insurance.
- Wink is not required to hold, nor currently holds, any such insurance for Talent as it is does not employ, engage or hire the Talent.
- Confirmed Bookings – If you cancel a Confirmed Booking, Wink has the discretion to charge you the cancellation fees set out in clause 6.
- Provisional Bookings – If you request a Provisional Booking, Wink will attempt to co-ordinate Talent to be available for such booking. However, notwithstanding the provision in clause 1.6, Wink is not bound to provide Talent until such time as you accept the estimate and Wink confirms that the booking is a Confirmed Booking. For the avoidance of doubt, Wink may cancel a Provisional Booking, or allow any other booking to take precedence over a Provisional Booking.
- Last Minute Bookings – Wink has the discretion to charge an additional fee for Last Minute Bookings or bookings made over a weekend or public holiday.
- You must pay a Job Fee in relation to each Job for which you require the Services of Wink.
- An Agency Service Fee may be payable in addition to the Job Fee and if applicable will be set out in the estimate. On any invoices made without a quote, the standard 15% will apply.
- A deposit in the sum of 50% of the Job Fee may be invoiced once a booking becomes a Confirmed Booking.
- The full invoice amount must be paid within 14 days of the job, unless confirmed in writing and approved by WINK’s General Manager.
- Cancellation fees
- If you cancel a Confirmed Booking then you must pay the following fees:
- 100% of the Event Fee if cancellation is within 24 hours of the Event;
- 75% of the Event Fee if cancellation is within 48 hours of the Event;
- 50% of the Event Fee at any other time after a Confirmed Booking is made;
- If a Confirmed Booking for a Job 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 Job Fee will be due and payable.
- If the hours specified in the Booking Form are reduced within 48 hours of a Job, cancellation fees may apply at the discretion of Wink.
- Usage and Additional Fees
- Where you engage our Services in relation to the provision of Talent to be photographed:
- you must notify Wink of any intended usage before the commencement of the shoot, and
- you may only use photography for the purpose for which it was originally shot as itemised in the Booking Form and/or Invoice.
- 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 Job. 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.
- Usage rights will be provided on the basis of an agreed territory and use.
- 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.
- We reserve the right to refuse the release of images for any use, for any reason, including extensions of existing print and television campaigns.
- Unless otherwise agreed in writing:
- 50% of the Job Fee is payable as a deposit within 14 days of issue of the initial invoice by Wink
- 50% of the Job Fee is payable on completion of the Event within 14 days of issue of the final invoice by Wink, and
- interest is payable on outstanding amounts at 10% per month, calculated daily.
- 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 Wink. 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 Job Fee and, if any part of the balance of the Job Fee is still owing on the due date for payment of the final invoice issued by Wink, the amount of the unpaid balance of the Job Fee and any other amounts owing to us in accordance with this agreement.
- 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.
- The Working Day
- Normal working hours are between 7am and 6pm, Monday to Saturday. Penalty rates may apply outside these hours.
- A half day rate is 4hrs and a full day rate is 8hrs. If the booking exceeds the agreed call time, overtime rates will apply. These will be the standard rates unless otherwise negotiated of $200/hr + 15% ASF + GST for photographic, $300/hr + 15% ASF + GST for Swimwear/Lingerie, $250/hr + 15% ASF + GST for Acting.
- Calculation of Fee
- If an Event finishes earlier than specified in the Booking Form, the Event Fee remains payable.
- If an Event finishes later than specified in the Booking Form, overtime and/or penalty rates may apply at the discretion of Wink.
- Fittings will be charged at $75 per hour, plus the Agency Service Fee, where applicable, plus GST. Fitting fee is charged if talent is required to bring their own wardrobe items and/or if client wishes to examine the items ahead of the shoot via video call, photos or in-person wardrobe session.
- Manicures, Tanning or additional hair maintenance requests (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.
- Wink 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.
- A fee for travel time for travel outside a 30 MINUTE radius of the CBD (including time related to traffic delays) is payable by you as determined by Wink.
If you have any issues during a Job with any of the Talent, then you must advise Wink as soon as possible, and in any event during the course of the Job. No claims or alterations in the Job Fee will be accepted after the final invoice is issued at the completion of the Job. Wink acts solely for and on behalf of the Talent and whilst making every endeavour to provide a satisfactory and efficient service, Wink cannot be held ultimately responsible for the conduct of the Talent at a Job.
- A special fee will be negotiated in circumstances where you require Exclusivity.
- It is your responsibility to check, at time of booking, whether any conflicting work has been previously done by the Talent.
- If the Talent advertises a product, he/she is able to work for any competitor in the future unless an Exclusivity Fee is negotiated and received.
- Termination and Suspension
- 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:
- if you fail to make payments to us by a due date, or
- If you breach any obligation under this agreement.
- Such termination will not in any way prejudice any of our rights including our right to receive payment for Services rendered.
- Either party may terminate this agreement by written notice to the other if an insolvency event occurs to the other party.
- If you terminate all or part of the service agreement, all outstanding payments due by you to us will become due and payable.
- You acknowledge that Information (including creative concepts) disclosed to you by Wink 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 Wink. 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 Wink 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 Wink.
- 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 Wink with which you had contact during the course of the service engagement or solicit such employment or engagement, including via social media.
- All information related to Job rate, fees or negotiations are strictly confidential and must be held between the Client and WINK.
- Privacy Collection Statement
- 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.
- Warranties and indemnities
- 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.
- 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 be limited, at our option, to one or more of the following:
- the supply of the Services again;
- the payment of the cost of having the Services supplied again
- We do not guarantee that our Services will provide any specific results.
- Without limitation, we will under no circumstances be liable for any indirect or Consequential Loss you do or may suffer.
- 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:
- act or thing done by us in good faith and purportedly pursuant to a right granted to us under the provisions of this agreement,
- 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;
- any injury caused to or by the Talent during the period in which they are engaged by you, and
- any other breach by you of any of the terms of this agreement.
- Unsolicited & Direct Engagements
- During the Term and/or Restraint Period, you acknowledge that you must not, without Wink’s written consent, approach, employ, contact, solicit, contract or hire the Talent to provide services which are similar to the Services provided under this Agreement (an Unsolicited Engagement).
- You acknowledge that if you fail to comply with clause 17.1 of this agreement and Talent subsequently accept the Unsolicited Engagement, Wink may, in its absolute discretion:
- issue a demand for payment for any lost Job Fees and/or Agency Services Fee which, but for your breach of this Agreement, Wink would have received for the provision of Services provided pursuant to the Unsolicited Engagement; or
- authorise the Unsolicited Engagement provided you agree to pay to Wink an amount equal to the Job Fee and/or Agency Service Fee Wink would have received for the provision of services had those services been provided to you pursuant to the terms and conditions of this Agreement.
- For the duration of the Term and Restraint Period, you must not, without Wink’s written consent, solely or with any other person, as principal, agent, employee, director, shareholder, beneficiary or in any other capacity either in your (or their) own right or with or on behalf of or in connection with any other person or entity:
- employ, contact, contract or hire the services of any of our Talent, employees, contractors, agents or other personnel; or
- induce or attempt to induce any of the Talent, our employees, contractors, agents or other personnel to terminate their agreements or contracts with us.
- You acknowledge that any breach by you of this clause would cause irreparable harm and significant damage to Wink and accordingly, Wink has the right to seek and obtain immediate injunctive relief in relation to any such breach.
- You acknowledge that the covenants in respect of non-solicitation contained in this clause 18 are fair and reasonable and that Wink is relying upon this acknowledgement in entering into this agreement.
You may opt-out of the non-circumvention obligations in respect of a particular relationship between a Client and a Talent, only if you pay WINK an opt-out fee (the Opt-Out Fee), which is calculated as the greater of:
- $3,000; or
- the amount of all Client Booking Fees that would be earned by WINK during the Exclusivity Period, calculated based on an annualised amount earned by Talent from Client during a normalised 8-week period, or during such shorter period as data is available to WINK Models
- 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 email 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.
- You must not assign or otherwise transfer any rights or obligations of this agreement without our prior written permission.
- 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.
- 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.
- We may appoint sub-contractors to perform Services under this agreement without your prior written consent.
- 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.
- 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.
- Definitions and Interpretation
Agency Service Fee means an additional fee calculated at 15% of the Job Fee plus GST.
Booking Form means the form completed by you setting out the details of the Job.
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 a Job as set out in clause 1.6 or clause 4.1.
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.
Job includes but is not limited to launches, campaigns, trade shows, in house activations, event hosting, demonstrations, television, print and outdoor campaigns.
Job Fee means the total sum of all fees payable for a Confirmed Booking as set out in the invoice rendered by Wink.
Exclusivity means the exclusive use of a talent/model’s services in association with a particular product brand to the exclusion of competing brands.
Exclusivity Fee means a fee negotiated between you and Wink pursuant to clause 12.3.
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.
Restraint Period means the period starting on the completion of Services provided to You under this Agreement and ending:
- 6 months; or
- if 6 months is unenforceable, then 3 months; or
- if 3 months is unenforceable, then 2 months,
after that date.
Services means the Services that we provide to you.
Talent means individuals who are represented by Wink.
Usage Fee means the fee determined by Wink for additional usage of images as authorised by Wink.
Unless the context requires otherwise:
- heading and bold type are for convenience only and do not affect the interpretation of this agreement;
- a reference to a person includes a corporation or any other legal entity;
- the singular includes the plural and vice versa;
- headings are for convenience and do not form part of this agreement or otherwise affect the interpretation of this agreement;
- the term “includes” (or any similar term) means “includes without limitation”; and
- 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.