AGB - General Terms and Conditions

in the version dated 02.11.2023

 

1. scope of application

 

1.1 These General Terms and Conditions apply to all contracts concluded between

 

Focoso ApS

Stamholmen 93

2406 Hvidovre 

Denmark

 

Phone: +4531656356 

Mail: branded@focoso.dk

 

Managing director: Florian Fuchs

VAT-ID: DK36912855 

 

- hereinafter referred to as "Agency"

 

and its clients. Insofar as provisions are made in the underlying contract that conflict with these terms and conditions, the contractual provisions shall take precedence.

 

1.2 General terms and conditions of the client shall only become part of the underlying contractual relationship if and insofar as the agency expressly agrees to this in writing.

 

1.3 The language of the contract shall be English.

 

2 Conclusion of contract, general terms and conditions

 

2.1 The client has the option of contacting the agency either by filling out the contact form on the website, by e-mail or by telephone and explaining to what extent and for what purpose he intends to make use of the agency's services.

 

2.2 The parties shall then negotiate the terms of the contract verbally or in text form. The agency shall submit an offer to the client verbally or in text form in accordance with the client's request, which the client may accept. The contract between the parties shall come into effect upon acceptance by the client.

 

2.3 The electronic form is sufficient for the conclusion of the contract.

 

3 Subject matter of the contract

 

3.1 The agency's main service is the procurement of contractors to perform personal services on behalf of the client. Depending on the client's wishes, these contractors may mainly be hostesses, in individual cases also presenters, promoters and/or models. The agency shall act as intermediary and communicate with the contractor and invoice the client for this intermediary service in the agreed amount. The exact contractual content of the service owed by the agency can be found in the respective order form.

 

3.2 The personal service of the respective contractor shall be invoiced by the contractor to the agency itself. Once the order has been completed in full, the Contractor shall send its invoice issued to the Agency to the Agency. The agency shall calculate the agency fee to be paid to it on the basis of the contractor's invoice. The invoices are then sent to the client collectively.

 

3.3 If a placement is made in an employment relationship, the agency's activity shall also be limited to contact placement. In particular, the Agency shall not be responsible for making determinations of a social security, pension insurance or labor law nature. In this case, the Contractor shall be solely liable for entering into and fulfilling the contract.

 

3.4 Outside of any fixed framework working hours, training courses or specific appointments, the placed contractor shall be free to organize his activities and shall not be subject to the client's instructions. This shall not apply in the event that a contractor is placed in an employment relationship.

 

3.5 The client must ensure that the agency and the contractor are informed in detail about the scope of their personal services. If special equipment is required by the contractor for the performance of personal services, the client shall be responsible for providing this at its own expense.

 

3.6 The client must ensure that, in the event of several booking days, the statutory rest periods between the individual service sections are observed by the contractor.

 

3.7 The Agency shall not be responsible for the Contractor's acceptance and acknowledgement of the performance of personal services.

 

3.8 The Contractor shall only perform those services whose provision has been agreed between the Agency and the Client and which result from the corresponding order form. In addition, the contractor shall only be obliged to carry out the usual work in connection with the presentation of goods and/or services. Any further work - in particular work that affects the intimate and personal sphere of the Contractor - may be rejected by the Contractor without further justification, without this affecting the remuneration to be paid by the Client.

 

3.9 The contractors are not obliged to provide personal services at a location other than the agreed location.

 

3.10. The client is not permitted to make changes and/or additions to bookings with contractors bypassing the agency unless the agency has agreed to these changes in advance.

 

4 Prices, payments

 

4.1 The remuneration due for the Agency's services shall be determined by the Client and the Agency within the framework of the respective individual order.

 

4.2 The subject of the calculation shall regularly be the agency commission in line with the Contractor's remuneration, as well as the costs for the transfer of rights of use ("buy-out agreement"). The Contractor shall invoice the Agency itself for the Contractor's fee.

 

4.3 If the Contractor is placed in an employment relationship, the Client shall pay the remuneration directly to the Contractor; the agency commission shall be based on the amount of the remuneration paid plus buy-outs. The commission shall always be due for the entire duration of the Contractor's activity. The client is obliged to provide the agency with information on the respective amount of remuneration and duration of employment at any time upon request.

 

4.4 Prices are always quoted in euros (€) plus the statutory value added tax applicable at the time of invoicing.

 

4.5 Services provided by the Agency that are not expressly covered by the agreed fee shall be remunerated separately.

 

4.6 The Agency shall be entitled to demand advance payment of 50 - 100 % of the total amount stated in the order confirmation. If a requested advance payment is not made on time by the client, the Agency shall be entitled to withdraw from the concluded contract or may withhold the service until full payment has been made.

 

4.7 Invoices are due immediately and without deduction. Outstanding amounts shall be collected by the Agency if a mandate has been issued. The date of receipt of payment shall always be the date on which the amount is credited to the Agency's account, not the date on which the amount is sent by the client.

 

4.8 Last-minute changes requested by the client after the conclusion of the contract and within one week before the project begins, or during the project duration, entitle the agency to charge for the additional effort separately. The extent of the additional effort will be calculated based on the required working hours or any additional costs incurred.

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4.9 Should the project management effort exceed the originally agreed-upon or typically required scope for such projects, the agency is entitled to charge a fee of €85 (Euro) per hour for each additional hour beyond the agreed-upon scope. This applies particularly to changes in project scope, last-minute adjustments, or additional requests made by the client after the conclusion of the contract or during the project duration.

 

5 Offsetting, retention

 

5.1 The client may only offset against claims of the agency insofar as corresponding counterclaims have been legally established, are undisputed or have been recognized by the agency.

 

5.2 A right of retention may only be asserted on the basis of counterclaims arising from the respective legal relationship.

 

 

6 Expenses

 

6.1 The client shall be obliged to provide the contractor procured by the agency with an adequate level of catering free of charge.

 

6.2 If the client fails to meet this obligation, the agency shall be entitled to charge the client expenses at the current statutory rate per contractor.

 

7 Termination, Cancellation

 

7.1 The premature termination of the contractual relationship shall oblige the client to pay the agreed remuneration for services rendered in accordance with the following paragraphs. This also includes the costs resulting from preparatory actions.

 

7.2 If the client withdraws from the order placed or if there is a full or partial cancellation, the Agency may - without prejudice to the possibility of claiming higher actual damages - charge up to 6 weeks before the start of the event 0 % / per person 6 - 4 weeks before the start of the event 30 % / per person 4 - 1 week before the start of the event 80 % / per person less than 1 week before the start of the event 100 % / per person of the costs incurred for processing the order and for loss of profit. The loss of profit includes both the agency commission and the costs of corresponding buy-outs due to the provision of corresponding rights. The client reserves the right to provide evidence of lower damages.

1-3 weeks before the start of the event 80%,

Less than 1 week before the start of the event 100 %

of the costs incurred for processing the order and for loss of profit. The loss of profit includes both the agency commission and the costs of corresponding buy-outs due to the provision of corresponding rights. The client reserves the right to provide evidence of lower damages.

 

7.3 The above paragraphs shall also apply explicitly to cases in which the client places the order with the agency for the first time within the aforementioned cancellation period. In this case, the client shall bear the full risk of cancellation due to the explicitly requested, spontaneous booking and cannot claim that the cancellation deadlines could not be met.

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7.4 If the client decides, after the conclusion of the contract and/or after the personnel has been firmly booked, to partially or fully forgo the agreed personnel due to their own wishes, the payment for the originally booked days remains unaffected and will be due in full. This applies particularly if the cancellation of the personnel occurs within a short notice period, such as during the project or less than one week before the project begins.

 

8. selection of the contractor

 

8.1 The client shall provide the agency with all details of the planned event, including the planned content, before the selection services are carried out. In particular, the type of event and the objective to be pursued must be described. If the content has been communicated to the agency, the agency shall be responsible for selecting suitable contractors. The agency shall present the content communicated by the client to suitable contractors and enquire about their availability.

 

8.2 Unless otherwise agreed, the Agency shall select a number of possible contractors to be agreed from the pool of available contractors who meet the contractually agreed requirements of the Client and the desired purpose. The client shall select the contractually agreed number of desired contractors.

 

8.3 Once the desired contractors have been selected, a change is only possible with the written consent of the agency.

 

8.4 In the event that a contractor is rejected, the client shall be obliged to inform the agency immediately in text form (e-mail) of the reasons for this. If the reasons in this case are such that would justify the termination of an employee without notice (e.g. refusal to work, insulting the client, comments about the client that are detrimental to the business, fraud, theft and embezzlement at the expense of the client, suspicion of a criminal offense, unauthorized vacation, threatened sick leave, sexual harassment of colleagues, working time fraud), the client shall have the option of withdrawing from the contract with immediate effect. In this case, only the Agency's working hours worked up to that point and any buy-outs, if applicable, shall be paid.

 

8.5 If the Client fails to give the reasons set out in para. 4 or if the reasons would not be sufficient for termination without notice, the rejection of the Contractor - for whatever reason - shall be deemed to be a cancellation of the assignment in accordance with 7. of these GTC with the legal consequences of 7. para. 3.

 

8.6 After rejection, the client has the option (but not the obligation) to book another contractor with the agency as a replacement. However, the Agency shall only be obliged to procure an equivalent contractor if the previously procured contractor was not properly selected.

 

8.7 If the client fails to reject the contractor, subsequent claims for compensation or damages shall be excluded. This shall not apply to claims for which the Agency is liable without limitation due to injury to life, limb and health or due to gross negligence.

 

9. rights of use

 

9.1 For the use of images (photographs or video recordings) of the contractor, the client shall pay a separate fee for the granting of rights of use ("buyout"). For clarification, it is stated that the client is responsible for obtaining the rights to the photographer's photographic copyright - additionally if necessary.

 

9.2 Buyouts are generally regulated to the following extent:

    a. Temporally

        (i) For a specific duration

        (ii) Unlimited or

        (iii) Only for a certain period of time

    b. In terms of content (for)

        (i) Above the line (print, flyers, catalogs, etc., usually for a certain number of prints/circulations)

        (ii) The client's own website (client store)

        (iii) Viral marketing (social media, e-mailings, YouTube), usually depending on the group of recipients / number of followers, subscribers, etc.

        (iv) Web advertising (banners, pop-ups, apps, downloads, prerolls, layer ads, ad clips, web sponsoring, etc.);

        (v) Trade fairs

        (vi) Below the line (POS)

        (vii) For licensing (e.g. use by third parties in their own interest)

    c. Geographically

        (i) Per country

        (ii) For certain countries (DACH, USA, etc.)

        (iii) Europe or other continents

        (iv) Worldwide

    d. Simple, exclusive, exclusive/non-exclusive

        (i) Simple: Agency may grant license to images on this day and for this event also to third parties

        (ii) Exclusive: only the client may use the images; he may grant sublicenses, depending on the content regulations

        (iii) Exclusively: the Contractor shall be exclusively available to the client for the agreed duration and shall not accept any other activities for other client.

 

NOTE: If no agreement has been made on one of the aforementioned provisions, the use in this respect shall be deemed to have been agreed as limited to the contractual purpose; in case of doubt, the use is agreed and permitted solely for the contractually intended use.

 

9.3 If the Agency includes buyouts in the offer, the Agency assumes that the use of images by the Client or its licensees is intended. The client confirms this by accepting such an offer.

 

9.4 In the context of negotiations on buyouts, the client shall provide the agency with complete and precise information regarding the planned use of the content of the works. This includes in particular the specification of all subpages of any web presences. If a corresponding specification was not made when the rights agreement was concluded, this information must be made available to the agency immediately upon request. The parties must reach an additional agreement in this regard. In the absence of such an agreement, the right of use shall, in case of doubt, only apply to the first page of the website.

 

9.5 The Agency shall then obtain buyouts in full from the Contractor at the time of the booking confirmation and shall pay for them. If the client cancels or terminates the contract after this time, the damage incurred by the agency as a result shall be compensated in accordance with these GTC.

 

9.6 In this respect, it is not decisive for the creation of the claim to buyouts whether images are actually used by the client, but only whether the parties have reached an agreement on the corresponding remuneration.

 

9.7 Rights of use shall only be granted after payment of the required remuneration.

 

9.8 The agreed period of use is set out in the offer. If no period is specified there, the period of use shall commence one month after the end of the respective booking day, or one month after the last booking day in the specific project in the case of consecutive services

 

9.9 The client shall ensure that the photographer's rights are clarified.

 

9.10. If the Contractor 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. claims for compensation for overuse

 

10.1 Any use of images that goes beyond the contractually agreed use in terms of content or time shall require the express consent of the Agency and, if applicable, separate remuneration.

 

10.2 The client shall be obliged to pay an appropriate contractual penalty, to be determined by the agency, for any use of the contractor's images that goes beyond the scope of the contractually agreed period of use without prior consultation with and approval by the agency. The amount of the contractual penalty shall be:

- If the rights of use are exceeded by up to one week: 25% of the total amount from BuyOuts and agency commission

- If the rights of use are exceeded from one week to one month: 50% of the total amount from BuyOuts and agency commission

- If the rights of use are exceeded from one to three months: 100% of the total amount from BuyOuts and agency commission

- If the rights of use are exceeded from three months up to one year: 200% of the total amount from buyouts and agency commission.

 

For each additional usage interval, the above-mentioned contractual penalty applies cumulatively. Example:

 

Granting of rights of use 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 contractual penalty has been asserted, the client shall be obliged to pay the agency commission and buyouts in accordance with the original contractual agreement, or the client shall be offered further use on this basis.

 

10.3 The Agency expressly reserves the right to assert further claims, in particular the choice to demand injunctive relief instead of granting further rights of use, as well as the legal fees incurred for the legal enforcement of the above claims following default and fault on the part of the client.

 

11 Other obligations of the client

 

11.1 The client undertakes to provide the agency with all documents and information necessary for the provision of the contractually agreed services in a timely, accurate and complete manner.

 

11.2 The event information and other content communicated to the Agency shall be passed on to the Contractor unchanged. The Contractor's consent and the Agency's mediation services shall relate exclusively to the transmitted content. The client acknowledges that the content transmitted in this way cannot be subsequently changed, supplemented or edited without a separate written agreement. Insofar as the parties agree such a change in writing, the Agency shall inform the Client of any additional costs that may be incurred.

 

11.3 If the client himself acts as an intermediary between the agency and another end client, the rights of use agreed in the order confirmation shall be granted exclusively to the end client under the conditions set out in 9. In this case, the client shall not be granted any rights of use. Should the client nevertheless use the images, the client shall be obliged to pay the entire agreed remuneration again (buyout and agency commission).

 

12. limitations of liability

 

12.1 The agency excludes liability for slightly negligent breaches of duty, unless these relate to damages resulting from injury to life, limb or health or guarantees or claims under the Product Liability Act are affected. Furthermore, liability for the breach of obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the client may regularly rely remains unaffected. The same applies to breaches of duty by the contractor.

 

12.2 If the Agency's liability can be limited or excluded in accordance with these General Terms and Conditions, this shall also apply to its vicarious agents.

 

12.3 In the event that a contractor subsequently ceases to exist for reasons for which the Agency 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 such as withdrawal or compensation.

 

13. prohibition of circumvention

 

13.1 For a period of 12 months since the last order, the client may not place any direct orders with the contractors placed by the agency that it has already used for an order via the agency or provide third parties with the contact details of the contractors. Rather, these talents may only be booked via the agency. In the event of a breach of this provision, the client shall be obliged to pay the agency a contractual penalty amounting to three times the usual agency commission.

 

13.2 The (potential) client may not place any direct orders with the contractors placed by the agency or pass on their contact details to third parties, even if no order is placed. Para. 1 shall apply accordingly.

 

13.3 In addition, it is pointed out that there may be exclusive contracts between the agency and the procured contractors, from which further claims of the agency may arise against the procured talents in the event of circumvention.

 

14 Final provisions

 

14.1 Amendments to these GTC require the mutual consent of both parties in text form (e-mail) and may only be approved by the respective management on the part of the parties.

 

14.2 The place of jurisdiction and place of performance for all disputes arising from the underlying contractual relationship or these General Terms and Conditions shall be the registered office of the Agency, provided that both parties are merchants, legal entities under public law or special funds under public law.