GTC General Terms and Conditions of the models agency
In the version of 14/04/2023
§ 1 General
(1) For all contracts concluded between the-models GmbH, Kreuzstraße 34, 33602 Bielefeld, (hereinafter referred to as "agency" or "the-models") and its commercial clients, these general terms and conditions shall apply. This also applies to future business relations between the client and the models, even if this is not expressly agreed again by the contracting parties. However, the agency remains authorized to change its terms and conditions at any time and to conclude new contracts only under the validity of the new conditions.
(2) The current version of the valid General Terms and Conditions can be viewed at any time at www.the-models.de/en/gtc.
(3) Special regulations in contracts take precedence over the general rules of these General Terms and Conditions. Deviations always require a binding agreement of both parties.
§ 2 Conclusion of contract
(1) An order confirmation is concluded between the Agency and the Customer, from which the concrete details of an order are derived. Only those service and price details that have been expressly offered by the-models in text form (e-mail, fax or letter) shall apply. The client may accept an offer from the-models by signing and sending the signed documents in text form (e-mail, fax or letter).
(2) The countersignature of offers is understood as a declaration of the management of the contractual partner. The customer is responsible for the legal appearance set. This shall also apply if the countersignature is made without a stamp, provided that the declaration is fundamentally attributable to the sphere of the customer.
§ 3 Subject matter of the contract
(1) As a rule, the Agency undertakes the procurement of third party services for the Client. The Agency shall procure persons for the performance of personal services on behalf of the Client (hereinafter "Talents"). These Talents can be, in particular, depending on the Client's wishes, models, promoters, trade fair hostesses, grid girls, moderators, influencers or similar.
(2) The invoicing and commissioning of the Talents shall be carried out either via the Agency within the scope of the placement of self-employed Talents or the-models shall place the Talent with the Client for the purpose of a (possibly short-term and / or short-term) establishment of an employment relationship. The concrete agreement on this shall be made in the contract as well as on the basis of the discussions of the parties.
(3) If the placement into an employment relationship is carried out according to paragraph 2, the activity of the-models is limited to the contact mediation. the-models is in particular not responsible for the clarification of the social and pension insurance claims, the labor law regulation or problems arising in this context. Nevertheless, the-models supports the client to the necessary extent if required. In all other respects, the talent alone shall be liable for entering into and fulfilling the contract or for any obstacles that may arise in the process.
(4) Outside of training courses and the specific project order as well as with regard to agreements on deadlines and any (framework) working hours, the independent Talents placed with the Client are free to organize their activities and are not subject to any instructions from the Client.
(5) The exact contractual content of the service owed by the Agency the-models or the Talents results from the respective offer letter or the order confirmation.
(6) The Client shall ensure that the Talents are specifically informed about the scope of activities desired by the Client; in the context of promotion measures, this shall regularly take place by means of a training session to be organized and remunerated by the Client, in other cases by means of a briefing on the factors of the performance that are essential for the Client. The Client shall also ensure that the talents are provided with work equipment or special clothing if this is of importance to the Client for the performance of the assignments.
(7) the-models does not guarantee recognition and approval regarding the talent by the client and the public.
(8) The talents are only obligated to perform work that is usually evident from the booking request, usually in connection with the presentation of goods or services. The talents are not obliged to perform any further work and/or work that does not correspond to the contractual purpose. In particular, no work is owed that interferes with the intimate or personal sphere of the talents. Likewise, the talents are not obligated to perform the work at a location other than the agreed location. If the client insists on such activities, the talent may refuse these activities and, in case of doubt, also refuse further execution of the contract. The client shall nevertheless remain obligated to pay the full agreed remuneration.
(9) The Client is prohibited from making booking changes or additions with Talents during the Shooting Days without the prior consent of the-models. Any booking changes made shall not affect the agreement between the Agency and the Client or the Talent.
(10) The obligation to provide evidence for bookings of Influencers is limited to providing evidence that the commissioned services have been performed. In case of doubt, the performance of the service can be proven by providing statistics, screenshots, insights or similar.
§ 4 Remuneration
(1) The agency remuneration results from the offer or the order confirmation.
(2) The object of the calculation is the fee of the commissioned Talent, the costs for the transfer of rights of use according to §9 ("BuyOut"), as well as travel expenses incurred and other fees, such as KSK fees, if the Client does not have its own submission number with the KSK. The Customer shall notify the Agency of this upon commissioning, otherwise the Agency shall assume that the Customer does not have its own number.
(3) In the case of the placement of Talents who enter into an employment relationship with the Customer (possibly on a short-term and/or short-term basis), the Customer shall pay the remuneration directly to the Talent as wages; in this case, the Agency commission shall be based on the amount of the remuneration paid plus any buyouts. The commission is due for the entire duration of the Talent's activity. The Client is obligated to provide the-models with information about the respective amount of remuneration and duration of employment.
(4) Unless otherwise agreed, the-models is entitled to charge the client an agency commission in the amount of 20 % of the agreed fee plus buyouts.
(5) Remuneration is subject to the statutory value added tax of currently 19 % applicable at the time of the order.
(6) The Agency is entitled to demand advance payment in the amount of 50 % up to 100 % of the invoice amount stated in the order confirmation or the offer. This advance payment is payable within 10 days from the date of invoice. The remaining amount is due at the time of performance and is also payable within 10 days from the date of invoice.
(7) In the event that a requested deposit / advance payment is not paid on time, the-models is entitled to terminate the contract immediately or to withhold the agreed service until full payment has been made. In this case, the client is not entitled to any compensation. The-models retains the right to the down payment for the expenses incurred and the booking of the talent, unless the client proves that the-models has not incurred any corresponding expenses and / or damages.
(8) In the event of premature termination of an order due to fault or a deliberate decision in this regard on the part of the Customer, § 7 (3) shall apply.
(9) For each started hour beyond the booking period, 15 % of the daily fee, plus 20 % agency commission, will be charged. For half-day bookings, twice the agreed half-day fee shall be charged as the daily fee. Hourly bookings shall only be made after separate agreement with the-models.
§ 5 Offsetting, Retention
(1) The client is only entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by the agency or are disputed but are ready for decision in court proceedings. This does not apply to consumers in the sense of § 13 BGB.
(2) A right of retention can only be asserted due to counterclaims from the respective legal relationship. The right to refuse performance according to § 320 BGB (German Civil Code) remains unaffected. the-models is entitled to a right of retention of the service in case of non-payment of the deposit, irrespective of the right of termination (§ 4).
§ 6 Catering
(1) The client is obligated to provide the independent talent arranged by the-models with sufficient food and beverages free of charge.
(2) If this is not done, the-models shall be entitled to charge the Client expenses in the amount of € 40.00 per day plus the applicable statutory VAT per Talent.
§ 7 Project failure / cancellation of an assignment
(1) In the event of a project cancellation for which the Client is responsible, the Client shall remain obligated to pay the contractually agreed remuneration. The same applies to the cancellation of a project through no fault of the-models or the Talent itself (e.g. cancellation or shortening of an event), unless the cancellation was due to force majeure.
(2) If a Talent is absent due to illness or force majeure, the obligation of the-models to provide the contractually agreed service shall lapse, insofar as it is not possible for the-models to procure an equivalent replacement at short notice despite corresponding efforts. The-models will immediately inform the customer about the failure or replacement.
(3) The legal consequences of the unilateral cancellation of an assignment by the customer shall depend on the time remaining until the scheduled assignment. In case of cancellation of an assignment up to 3 weeks prior to the assignment, § 4 para. 8 shall apply. In case of cancellation of an assignment by the customer 1-3 weeks prior to the assignment, cancellation fees in the amount of 80 % of the previously agreed total amount (fee of the Talent, buy-out + agency commission) shall apply. In case of cancellation of the order by the customer less than 1 week before the assignment, cancellation fees in the amount of 100 % of the previously agreed total sum (see above) will be charged. The assertion of a higher, actually incurred damage is explicitly reserved. In particular, reference is made to § 9 Para. 4 with regard to the costs of the BuyOut.
(4) § 7 Para. 3 S. 2 and 3 shall also apply in particular to cases in which the Customer places the order with the Agency for the first time within the aforementioned period. Ex: an order for an assignment on 10.12. is placed on 05.12.. In these cases, the customer bears the full risk of default due to the explicitly requested, spontaneous booking.
§ 8 Selection of Talents
(1) The Customer shall provide the Agency with all details of the planned campaign, including the planned content, before the selection services are carried out. In particular, the type of campaign and the objective to be pursued shall be described. Insofar as the content has been communicated to the agency, the agency shall be responsible for selecting suitable talent. The Agency shall present the content communicated by the Customer to suitable Talents and inquire about their availability.
(2) Unless otherwise agreed, the-models shall select from the pool of available contacts to Talents a number of possible Talents to be agreed upon that meet the contractually agreed requirements of the Client as well as the desired purpose of use. The client shall select the contractually agreed number of desired talents.
(3) After selection of the desired Talents, a change is only possible with the written consent of the Agency.
(4) In the event that a Talent is rejected, the Client is obligated to inform the-models immediately in text form (e-mail) of the relevant reasons for this. If these are reasons that would justify immediate termination of an employee (e.g. refusal to work, insulting the client, business-damaging statements about the client, fraud, theft and embezzlement at the expense of the client, suspicion of a criminal offense, unauthorized taking of vacation, threatened sick leave, sexual harassment of colleagues, work time fraud), the client has the option to withdraw from the contract with immediate effect. In this case, only the time worked by the-models up to that point and / or unobjected working time of the Talent as well as any BuyOuts, if any, shall be paid.
(5) If the Client fails to provide the reasons stipulated in Paragraph 2 or if the reasons would not suffice for termination without notice, the rejection of the Talent - regardless of the reason - shall be deemed to be a cancellation of the assignment pursuant to "§ 7. Cancellation of an Assignment" with the legal consequence of § 7 Paragraph 3.
(6) After rejection, the Client has the option (but not the obligation) to book another Talent with the-models as a substitute. However, the-models shall only be obligated to procure an equivalent Talent if the Talent initially procured was not properly selected.
(7) If the customer fails to reject the Talent, subsequent (damage) compensation claims are excluded. This does not apply to claims for which the-models has unlimited liability due to injury to life, body and health or due to gross negligence.
§ 9 Rights of Use to Images of Talents
(1) For the use of illustrations (photographs or video recordings) of the Talents, the Customer shall pay a separate remuneration for the granting of rights of use ("Buyout"). For the avoidance of doubt, it is stated that the customer itself is responsible for additionally obtaining the rights to the photographer's photographic copyright.
(2) Buyouts are generally regulated to the following extent:
- for a certain duration
- indefinitely or
- only at a specified time)
b. Substantially (for)
- Above the Line (print, flyers, catalogs or similar, usually for a certain number of prints / runs;
- the client's own website (client store);
- Viral marketing (social media, emailings, YouTube), usually depending on recipient base / number of followers, subscribers or similar;
- Web advertising (banners, pop-up, apps, downloads, prerolls, layer ads, ad clips, web sponsorships, etc.);
- v. Trade shows,
- vi. Below the line (POS).
- vii. For licensing (e.g., use by third parties in their own interest).
- Per country
- For specific countries (DACH, USA, etc.)
- Europe or other continents
as well as
d. Single, exclusive / non-exclusive
- Simple: the-models may grant license to images on that day and for that event also to third parties
- Exclusively: only the client may use the images; he may, depending on the content regulation, and only in agreement with the-models grant sublicenses if necessary.
- Exclusive: the talent is at the exclusive disposal of the client for the regulated period and will not accept other activities for other clients.
NOTE: If no agreement has been made regarding one of the aforementioned provisions, the use in this respect shall be deemed to have been agreed upon as limited to the contractual purpose; in case of doubt, the use solely for the contractually intended purpose shall be agreed upon and permitted.
(3) If the-models Buyouts are included in the offer, the Agency assumes that the use of images on the part of the Client or its licensees is intended. The client confirms this by accepting such an offer.
(4) Buyouts shall then be collected in full by the-models from the Talent at the time of the booking confirmation and shall be remunerated. If the client cancels or terminates the contract after this point in time, the damages incurred by the-models shall be reimbursed in accordance with these GTC.
(5) For the accrual of the claim to Buyouts, it is not decisive in this respect whether Images are actually used by the Client, but solely whether the parties have reached an agreement on the corresponding remuneration.
(6) Rights of use shall only be granted after payment of the required remuneration.
(7) The agreed period of use results from the offer. If no period is stipulated there, the period of use shall begin 1 month after the conclusion of the respective booking day, in the case of contiguous services one month after the last booking day in the specific project.
(8) The Customer shall ensure that the Photographer's rights are clarified.
(9) If the Talent is booked as a promoter, trade fair hostess or similar, only photographic documentation of the work is permitted for internal verification purposes. Further rights of use must be clarified with the agency before any photographs are used.
§ 10 (Damage) Claims for Compensation in the Event of Excessive Use
(1) Any use of images that exceeds the contractually agreed use in terms of content or time requires the express consent of the-models and, if applicable, separate remuneration.
(2) For the review and evaluation of the granting of rights of use, the Agency shall be entitled to charge the Customer a research fee if the following conditions are met. This shall amount to 15 % of the total amount of the buyouts originally agreed with the Customer pursuant to § 9. The Agency may only charge this research fee if it has actually and demonstrably been established that the Client has exceeded the rights of use (§ 10 para. 1) and the Talent is compensated for this.
(3) For uses of likenesses of the Talents that exceed the scope of the contractually agreed period of use without prior consultation with and approval by the-models, the Client shall be obligated to pay an appropriate contractual penalty, which shall be determined by the Agency. The amount of the contractual penalty is:
- If the rights of use are exceeded by up to two weeks: 50 % of the total amount from buyouts and agency commission
- if rights of use are exceeded from 2 weeks up to 12 months: 100 % of the total amount of buyouts and agency commission
- if usage rights are exceeded for more than 3 months12 weeks: 200 % of the total amount from buyouts and agency commission
For each additional usage interval, the above penalty accrues cumulatively.
Ex: Granting of usage rights for one year. Exceeding the rights of use for a period of 1 year and 1 month. Contractual penalty: 300 %
Note: For any further use requested after the date of enforcement of the contractual penalty, the customer shall be obliged to pay the agency commission and buyouts in accordance with the original contractual agreement, or the customer shall be offered further use on this basis.
(4) If, instead of the period of use (2), the Client violates the right of use in another way, e.g. by using the material in a way other than intended, licensing it without the corresponding right, using it in a medium other than agreed upon, or the like, the-models shall be entitled to demand compensation for the rights of use based on the currently valid Velma buyout list. In addition, the-models shall be entitled to a claim for damages in the amount of 20 % of the aforementioned remuneration for corresponding research and agency expenses for the enforcement and follow-up of such overuse.
(5) the-models reserves the right to assert further claims, in particular the right to demand injunctive relief instead of granting further rights of use, as well as the right to claim attorney's fees for the legal enforcement of the aforementioned claims arising after default or fault of the Client.
§ 11 Other obligations of the client
(1) The Client undertakes to provide the-models with all documents and information necessary for the provision of the contractually agreed services in a timely, accurate and complete manner.
(2) The Campaigns communicated to the Agency and their contents shall be passed on to the Talent unchanged. The consent of the Talent and the agency services of the Agency refer exclusively to the transmitted contents. The Client acknowledges that the content thus communicated cannot be subsequently changed, supplemented or edited without a separate written agreement. Insofar as the parties agree on such a change in writing, the Agency will inform the Customer of any additional costs that may be incurred.
(3) If the Customer itself acts as an intermediary between the Agency and another end customer, the rights of use agreed in the order confirmation shall be granted exclusively to the end customer under the conditions set out in §9. In this case, the customer is not granted any rights of use. Should the customer nevertheless use the illustrations, the customer shall be obliged to pay the entire agreed remuneration again (fee, buyout and agency commission).
§ 12 Liability of the agency
(1) the-models excludes liability for slightly negligent breaches of duty, provided that these do not concern damages from injury to life, body or health or guarantees or claims under the Product Liability Act are affected. Furthermore, liability for the breach of obligations, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the customer may regularly rely, shall remain unaffected. The same applies to breaches of duty by the talents.
(2) If the liability of the-models can be limited or excluded in accordance with these General Terms and Conditions, this shall also apply to its vicarious agents.
(3) In the event that a selected Talent subsequently ceases to be available for reasons for which the-models is not responsible, the Agency shall be entitled to make a new selection with the Client without the Client being entitled to any further rights in this respect, such as rescission or compensation for damages.
§ 13 Prohibition of circumvention
(1) For a period of 12 months since the last order, the Client may not directly place orders with persons referred by the-models whom the Client has already used for an order through the Agency or provide third parties with the contact data of the Talents. Rather, these talents may only be booked through the-models agency. In the event of a violation of this provision, the Client shall be obligated to pay to the-models a contractual penalty in the amount of three times the usual agency commission.
(2) The (potential) client may not directly place orders with the talents mediated by the-models or pass on their contact data to third parties even if no order is placed. Paragraph 1 applies accordingly.
(3) In addition, it is pointed out that there may be exclusive contracts between the-models and the mediated talents, which may result in further claims of the-models against the mediated talents in case of circumvention.
§ 14 Final provisions
(1) This agreement is subject to German law.
(2) Amendments to these General Terms and Conditions require mutual consent in text form (e-mail) and may only be agreed to by the respective management on the part of the parties.
(3) The place of jurisdiction for all claims arising from the contract is Bielefeld.