General terms and conditions
for booking models/actors and customer castings
Status: 01/2023
General terms and conditions
for booking models/actors and customer castings
Status: 01/2023
1 Preamble
The following terms and conditions define the booking contract between model/actor, represented by FAVorite Agentur GmbH & Co. KG, Schanzenstr. 36, Gebäude 234, 51063 Köln (hereinafter: agency) and customer (hereinafter: client). Deviating regulations can only be contracted between agency and client. Direct agreements with model/actor or contracts presented to the model at the booking site, waivers or addendums to the booking contract are invalid.
The agency has been employed by model/actor to act in his/her name and representation vice versa client.
2 Booking basis
2.1
Agency shall issue declarations vice versa client by name and order of model/actor. Client is he who books with the agency, unless deviating agreements are explicitly contained in the booking.
2.2
Agency will not assume any warranty for a certain result of agency’s nor model’s/actor’s services. In particular, agency will not be liable for losses, profits lost, savings lost, or other damages of third parties. Likewise, agency will not be liable if kept from fulfilment of the services described in the contract for circumstances beyond agency’s control.
2.3
Agency will not be liable for injuries, accidents or other damages occurring within the personal commitment conveyed, as may be the case. To this end, client is obligated to contracting special insurances.
2.4
Agency will to their bests knowledge and belief instruct all models/actors conveyed to appear punctually at the location agreed upon, to bring all requisites agreed upon, and to cooperate in the production. Agency does not assume any liability for non-appearance of a model/actor, bad performance and/or damages caused by the behavior of model/actor.
2.5
Agency will, in the name of model/actor, negotiate with client all bookings, fees, buyouts, dates, etc. Any booking is solely done via the agency.
3 Booking modalities
3.1 Options
Options are reservations with binding deadline. An option shall forfeit unless a fixed booking is received within no later than three working days (Monday through Friday) prior to start of work, or within one working day (Monday through Friday) from agency’s request, each by 6 p.m. German local time shall be applicable. Options will be registered after receipt of booking. In case it is not the first option, customer will be informed oft eh option’s rank. If an option is forfeited, subsequent options shall move up in the sequence of their rank. Options shall be cancelled as soon as client knows that no fixed booking will occur.
3.2 Fixed bookings
Fixed bookings are binding for both parties. On client’s request, agency shall without undue delay confirm them in writing, giving the relevant details.
3.3 Weather bookings
Weather-dependent bookings must explicitly be marked as such on request of an option. Unless otherwise agreed, these are bookings for fair weather. Client may postpone weather bookings to another date up to 48 hours prior to the booking date. Actor’s availability is the prerequisite. If no alternative date can be found, agency will invoice 100% cancellation fee.
3.4 Exclusive booking
Model/actor does not work exclusively for client. Thus, it cannot be excluded that model/actor has already advertised companies which are client’s competitors. Should customer require future exclusive bookings, same must be negotiated and discussed in each individual case.
4 Booking children
4.1
Pursuant to the German Youth Health and Safety at Work Act, § 6, employment of children is bound by strict legal regulations. The children conveyed by agency have an annual registration with the Office for Occupational Safety, being an exemption permit for advertisement events (fashion shows, trade fairs) and advertising shoots (photo, film). Since July 1st, 2022, this has to be requested independently by the costumer. The agency will charge the costumer EUR 40.00 net per child for obtaining the required documents (routing slip), plus any expenses (e.g. pediatrician fees for stamps).
The fees for the exemption permit of the Office for Occupational Safety are graded according to the number of children and days and can be viewed on the respective website of the responsible office or on request. The invoice of the fees is sent directly to the costumer.
4.2
Optionally, the agency can be authorized by the costumer to register with the Office for Occupational Saftey and Health. Registration service via agency is calculated as follows: net EUR 80.00 per child and day; if there are several children, the agency charges a graduated fee of net EUR 180.00 for up to 5 children and net EUR 250.00 for up to 10 children.
4.3
When registering through the agency, the permit for the booked child will be sent to the costumer after approval. The regulations, requirements and obligations contained are transferred to the costumer upon booking and must be observed and complied with. The permit must be present on the day and place of booking. To protect against accidents and damage to health, the costumer must carry an out-of-risk-assessment within the meaning of §28a JArbSchG before taking up employment/booking. In particular, the necessary precautions and measures to protect against dangers to life and health and to avoid impairment of the child’s physical or mental and spiritual development must be taken. The rsik assessment must be documented in written form and submitted to the responsible district government (s) and/or the locally responsible supervisory authority(ies) upon request. This includes i.a. compliance with recognized technical regulations and relevant accident prevention regulations. The costumer can obtain advice on this from internal and external occupational safety specialists.
Reference is made to the fine provisions of Section 58 Paragraph 1 No. 28 and Section 59 Paragraph 1 No. 1 JArbSchG. According to this, anyone who violates an enforceable condition of the approval authority or a child before receipt of the approval notice is breaking the law.
The administrative offenses can be punished with a fine of up to net EUR 15,000.00 by the district government.
5 Annulment
5.1
Client can only annul a fixed booking for important reasons, which client has to prove. The legal definition of said term is relevant.
5.2
In case client annuls a fixed booking without important reasons, client is liable for the booked model/actor fee and expenses incurred, as may be the case.
5.3
Annulment shall be communicated to agency without undue delay. The parties agree that client’s annulment must be received and simultaneously confirmed by agency.
5.4
On annulment by client, client shall pay to agency:
5.5.
Annulment must be done on working days (Monday through Friday) no later than noon. If received after noon, this day shall be counted as a calendar day for the purposes of this regulation. Saturday, and Sunday are no working days, German local time applies.
5.6.
If annulment is done by model/actor, agency will apply best efforts, using other agencies if appropriate, to find an adequate replacement for client.
6 Working hours
6.1. Photo
For day bookings, working hours are 8 hours plus 30 minutes break, and for half-day bookings 4 hours without break.
6.2 Film
For day bookings, working hours are 10 hours plus 45 minutes break, and for half-day bookings 5 hours without break.
6.3 Night shoots
Night shoots have to be communicated to the agency no later than on grant of the option.
6.4
The working hours start on appearance of model/actor at the work place agreed upon at the time agreed upon. Preparatory times for make-up and hair styling as well as hair styling and fitting etc. is considered working time.
6.5
Overtime in case of half-day and whole-day bookings will be compensated by 15% of a daily fee per commenced hour. Exceeding working time in case of day bookings by up to 30 minutes will not be invoiced, as a gesture of good will.
6.6
Joint journey of model/actor and client between hotel and location is considered working time. As a gesture of good will, travel times of up to one hour per day will not be invoiced.
7 Model/actor fee
7.1
The model/actor fee covers the work compensation and fee for rights of use, plus VAT.
7.2
The work compensation for half-day bookings is 60% of the daily fee in case of models/actors residing at the work site. Half-day bookings for traveling models/actors and hourly bookings are subject to a separate agreement.
7.3
Social-insurance obligations will be complied with by client. Contributions to the artists` social insurance and German Pension Fund must be reviewed and paid by client.
7.4
Mode/actor fees and expenses and the like will be invoiced to client by agency in the name and by order of model/actor.
7.5
Payment of the model/actor fees including the agency commission will be done to agency’s account. Agency is authorized to debit all fees of model/actor.
8 Agency compensation
8.1
Client shall pay the agency commission to agency. Unless otherwise agreed, it is 20% of the model/actor fee per booking day, cancellation fee or purchase of rights of use, but no less than net 100,00 Euro/model and day. The minimum rate for child models is net EUR 350.00 per day.
8.2
Agency’s liability from the conveyed legal relationship is excluded. Client is not entitled to set off any claims against model/actor and agency’s commission claim, or to claim a relevant retention right. Likewise, set-off or retention of the model/actor fee for alleged counter-claims is excluded.
8.3
Customer shall pay the agency fee also for subsequent bookings and buy-out payments. Direct bookings, circumventing the agency, are not allowed.
8.4
In the absence of regulations to the contrary, model/actor works as a free-lancer and will pay tax on the fees. In case of mandatory VAT, the VAT on the fee will be paid in addition.
9 Travel expenses
9.1
Travel expenses will generally be paid by client.
9.2
Travel expenses will be invoiced against receipt or at 0.36 Euro/km, unless otherwise agreed.
9.3 Daily fee for travelling
The daily fee for the model/actor traveling to and from the work site will be negotiated individually and is generally 50% of the daily fee.
9.4 Travelling expenses
In case of models/actors living at the work site, or models/actors not travelling to the work site, overnight stays and meal expenses are not applicable. Taxi expenses will only be paid as of city limits, half-day and hourly bookings excluded. In case of models/actors traveling to the work site and joint journeys, the incurred expenses for traveling, meals and overnight stays will be paid as of the model’s/actor’s residence. If the model/actor works for several clients at the work site, the costs incurred will be divided between the relevant clients.
10 Payment terms
10.1.
Invoice is issued by the conveying agency. The model/actor fee, including cancellation fee, daily rate fort rips and travelling expenses will be invoiced by name and order of model/actor in Euro (local currency at the current exchange rate for purchase). Payments must be in Euro. Possible bank fees, e.g. for foreign payments, will be paid by client.
10.2
The contribution to the artists’ social insurance shall be paid in the applicable amount by client. Models/actors and agency are not obligated to invoice same separately.
10.3
No discount is granted.
11 Complaints, liability
11.1
In case of complaints, client shall without undue delay inform the agency and explain the reasons for complaint. Polaroids to prove the complaint must be made. Then, the model/actor shall explicitly be exempted of his/her obligation to work. For justified complaints proven by customer, no payment is due for the model/actor; the same applies to the traveling expenses. If, however, shoots are made with model/actor, this is considered as client’s waiver of any complaint.
11.2
In case of delays caused by model/actor (e.g. overslept, missed flight etc.), the model/actor will work longer. If this is not fully or only partially possible for special circumstances, model/actor will lose the proportional claim to the daily fee.
11.3
For particularly risky shoots, client shall contract a corresponding insurance for the model/actor. If the risk incurred has not been explicitly communicated to the agency on booking, model/actor is entitled to renounce work and is entitled to a cancellation fee of 70% of the total fee agreed upon.
11.4
Model/actor is not responsible for hair/make-up, styling and clothing requested by client.
12 Rights of use
12.1
Unless explicitly otherwise agreed, the model/actor fee agreed upon only grants the rights of use in the takes to the client cited, for the purpose agreed, regarding the agreed and negotiated rights of use (purpose, time, location).
12.2
Rights of use may only be transferred to the purchaser of rights. The rights of use must explicitly not be transferred to third parties.
12.3
If the start of the use by the right purchaser cannot be clearly defined at the time of booking, the beginning of the use will be with the first publication, but no later than two months after the date of invoicing.
12.4
Any further use must be requested and negotiated anew. Any use of the model’s name requires the explicit prior written consent by agency.
12.5
Rights of use are not granted prior to payment of eh agreed fee. Any use prior to complete payment of eh compensation agreed upon is illegal.
12.6
Should the relevant material be used after expiration of the purchased use, or if it is used prior to payment, a contractual penalty of 3 times the model/actor fee plus the common fee, plus 20% agency commission for use is due immediately. The right to claim further compensation of damages is reserved.
12.7
Client is obligated to ensure that all parties participating in production (model/actor, agency, photographer/film production, director) may use the image material/videos made with the model/actor in their own name and without restriction to content, time and location. Client also has to assure the copyright assurance on the phots and/or films made. In this respect, client exempts model/actor and agency from third parties’ claims. Participations in festivals shall be communicated to agency in writing.
12.8
Unless otherwise agreed, agency must be allowed to use the image or video material made by booking of model/actor for own advertisement purposes in the blog or in social media of agency.
12.9
If client plans to publish the image or video material made with the model/actor booked via the agency, model’s/actor’s name according to booking, and agency, shall be cited. If published in social media, a link to the agency will be implemented, too.
Direct linking to the model /actor booked is not allowed.
13 Videocasting
If desired by client, the agency will do video castings with potential models/actors in their own studio premises. They will be prepared and implemented after briefing and at best coordination with client. Option and negotiation on work fee and rights of use will be coordinated by agency. Due to individual factors in the coordination process, it is impossible to guarantee the model/actor pleasing the client.
14 Circumvention clause
Client commits to neither contacting directly nor indirectly any model/actor conveyed by agency or met at a casting. Direct booking, by circumventing agency, is illegal. If a booking is done by circumventing agency, the agency shall be put in that position as if the booking had been done via agency. Moreover, in this case, client must pay to agency a contractual penalty of 20% of the model fee agreed upon, plus legal VAt.
15 Confidentiality
Client and model/actor are committed to keeping contracts and agreements with agency secret vice versa third parties; this also applies to oral contracts and agreements.
16 Data protection
Client commits to only collecting, using and processing personal data given to him for the sole purpose of conveying and implementing a booking. The regulations of the German Law on Data Protection must be complied with; the mandatory cancellation deadlines must be complied with. If data of models/actors are transferred to third parties in context with mandatory regulations, agency shall be informed in advance.
17 Final clause
17.1.
German law is applicable between the parties to these booking terms and conditions (agency, model/actor, and client). Place of performance for all obligations from the booking is agency’s site.
17.2.
Validity of the booking terms and conditions is not affected by invalidity of individual stipulations, as may be the case. In this case, that which comes closest to the targeted purpose is considered to have been agreed upon instead of the ineffective regulation. Corresponding facts apply for filling contractual gaps.
17.3.
As far as allowed, Cologne is in jurisdiction.