Making your own contract

What appears to be a company may not actually be a company. Some individuals use a trading name as if they have a separate company say 'Very Exciting Events' for example (not a real name). However, unless it's a limited company e.g., 'Very Exciting Events Ltd' (and usually a company number indicated) then you may effectively be dealing with an individual.

With a limited company, there will be an address registered with Companies House that can be obtained, but, if the company is not incorporated, then there won't be. In that case, you need to get a postal address. Even if Very Exciting Events has a glossy, professionally designed website, don't assume that it's a company in its own right.

Clubs are not usually incorporated businesses like limited companies. Although working men's clubs and social clubs and the like are run like small businesses they are usually owned by the members who are liable for its debts. As such, to take a club to court for non payment or cancellation you have to take legal action against the members themselves. In practice, this would normally be the chair, secretary, treasurer or other committee members with three being a good number. Often it is possible to find out the names of the committee online or they are displayed in the foyer of the club. It is useful to have that information before commencing a dispute.

Agents can act in more than one capacity. Although the words 'agent' and 'agency' are used freely when describing role of a middleman in an entertainment contract there are two very different ways such a business can work. The main features are as follows:

Employment agency: The main contract will be between the end user or 'hirer' and the artist. The employment agency will be taking an agreed percentage commission of the artist's fee (such as 15%). The agency is required to pass on the artist's share of their fee within 10 days of receiving it. The agency is not liable if the hirer cancels or doesn't pay.

Employment business: There will be two contracts in place that are legally separate entities. There will be one between the agent and the artist and another between the agent and the hirer. The agent will agree a net fee with the artist and when this will be paid and another fee with the hirer for 'selling' the artist to them. The fee to the hirer will obviously be higher than that to the artist so the agent makes a profit. It can be a bone of contention just how much that difference is. The agent is liable to pay the artist if the hirer doesn't pay them or if the hirer cancels and the artist is not able to find other work.

In general, actors tend to have an agent and they work as employment agencies. Booking agents tend to work as employment businesses. There may be more than one agency in a chain for the same booking.

Although a booking made verbally is legally binding or a series of electronic communications with all the necessary information is also adequate to prove the existence of a contract, it is often worth putting all the points together in one place to reduce the chance of a misunderstanding later. This can be sent to the booker as a 'confirmation'.

During the process when you have agreed the fundamental points (what, when, where and how much) you could say you will send a written confirmation. This indicates to the booker quite clearly that you regard it is a firm booking. It also gives you the opportunity to give the booker your 'terms of business'. If you have any terms which are likely to be a shock to the booker, you should discuss them at the time of taking the booking.

As well as the fundamentals it is a good idea to discuss:

• Whether and when you require a deposit to be paid.
• What the event actually is.
• Whether you will be giving anything away e.g., party bags, sweets, balloons.
• Detailed timings, arrival, set-up, finishing, length of sets
• Any special requirements the booker may have.
• Directions to the venue and parking / unloading arrangements.
• On-site contacts
• Confirmation that a responsible adult will be present in the case of Children's Entertainer's bookings.

What is the correct format of a written confirmation

There is no standard layout and the best ones are those that contain all the necessary information with simple clear presentation. With a booking for a private party with an individual then a personal letter format would probably be most appropriate. Some examples are shown later is this pack.

Note that each includes all the fundamental points expressly stated:- Where, when, what and how much along with the agreed special requirements and the other things that can be agreed are all stated. All of the 'terms of business' shown on these documents are examples and may be worth considering for inclusion in your own contract confirmations.

Many entertainers prefer to get the booker to pay a deposit as they find that, if one is paid, there is less likelihood of the booking being cancelled. If you prefer to get a deposit in advance consider why you want it. Is it:

• To compensate you in case the booker decides not to go ahead.
• To make the booker more likely to go ahead.
• To cover your upfront costs.

In any case you do not want the booker to get the impression that by not paying the deposit that the contract does not stand — unless, of course, that is what you intend. Some entertainers will just take another job if the deposit does not arrive.

Plainly stating "Please send the agreed deposit of £X to me within Y days" is fine, avoiding any references to what might happen if they don't pay up, such as saying "or this contract will not be valid" etc. is normally a good tactic.

Holding a deposit does not mean that you are automatically entitled to keep it under all circumstances. Should the booking not go ahead because the entertainer is unable to do it or for reasons of 'force majeure', then the deposit may have to be returned.

It is fairly common with private work booked directly to be paid the full fee on the day or the balance if a deposit has already paid in advance. For corporate work, if the payment is not through an agent, although it is preferable to be paid on the day, the company's payment terms will often require you to invoice after the event and wait perhaps 30 or even 60 days.

If an agent is involved in the capacity of an employment agency (see notes above) then they have a further 10 days from receipt to pass on your fee. If you have a choice, be paid not later than on the day. In any case, it is good practice to find out what the payment terms are before accepting the booking. In the absence of specific agreement, the default maximum is 30 days for public sector and 60 days for private before late payment charges can be levied.

If it can be avoided, it is best not to send the booker something they need to sign and return. This is because the booker may then think that, if they don't sign it, then you are not booked. Some entertainers go even further than that to try to clarify the situation further by expressly stating on their confirmation something like the following:

"All the terms of this agreement will be deemed to have been accepted if it is signed and returned or if it is not signed and returned and no objections have been raised within 7 days of receipt."

This may be appropriate for a contract for a contract involving significant fees; complex and detailed terms and conditions; a corporate booking or one made a long time in advance of the performance, but could seem a bit heavy handed for smaller bookings for, say, private parties.

Cancellation clauses are a matter for the individual entertainer to decide whether they want to incorporate into their contracts. If you do not mention cancellation in your confirmation, then the default position under Contract Law is that neither party can withdraw from the contract without the other's agreement.

You can also state this position in the contract if you prefer by stating "Cancellation can be by mutual agreement only". The standard Equity contracts for entertainers contain this clause.

If you want to use cancellation clauses, as some entertainers prefer to do, then you need to agree them with the other party. Stating them on a confirmation may suffice for this purpose as you are usually strengthening the booker's rights (and weakening your own).

Some entertainers are happy to accept cancellations as long as they are given a week's notice and would state something like: "If you wish to cancel this performance, I will need at least seven days' notice otherwise the full fee will be due". This is fairly rare unless the entertainer is inundated with enquiries for work and will easily find a replacement job.

Some may also have a sliding scale e.g., 'Cancellation within 14 days, 50% of fee payable cancellation within 7 days, full fee'. It is uncommon for entertainers to include provisions for cancellation at such short notice

if they do corporate work, local authority work or festivals etc. as this work is usually booked a long way ahead and is difficult to replace if lost. Key dates such as the build up to Christmas, New Year's Eve, school holidays and half terms may be particularly hard to replace without a lot of notice. Equity would not normally recommend including cancellation terms in contracts as your rights are stronger without them.

By far the most common problems experienced by entertainers are cancellations and late or non-payments. You may deal with these problems differently depending on who the client is, but the principles are the same.

Cancellations:

When the booker calls to cancel you, unless you have cancellation clauses in your contract, you have the following main options:-

1. Accept the cancellation without condition.
2. Negotiate a cancellation fee.
3. Maintain your requirement for the full fee to be paid unless you are able to find alternative work.
4. Accept an alternative booking.

Which of these you choose to do may depend on the size of the job and therefore the fee, the amount of notice given and the likelihood of replacing the booking and the reason for the cancellation. If it was a small job for a child's party and the child is very sick, you may have particular sympathy and waive your fee or accept a token cancellation fee. If it's a larger job which has been in your diary for a long time and the reason is a bit woolly, say 'not enough tickets sold', you may only be willing to accept your full loss.

If you are not able to reach an amicable agreement with the booker then, while the booked date is still in the future, you are under a legal obligation to mitigate your loss i.e. you need to try to find another job to replace the cancellation. If you are not able to find anything then, once the date has passed, you are due your full loss.

This will be the full fee less any expense you would have had to lay out if you'd done the job such as travel and parking. If you are able to find another job and it is for less money than the original, the sum now owed will be the difference between the amount you received from the new booking and the original fee. You can also legitimately add any reasonable costs associated with finding and/or doing the new job. Only once the date has passed can you be sure of the amount that you are actually owed.

It may be advantageous, rather than waiting, to negotiate a cancellation fee. A figure often chosen is 50%, but it can be anything reasonable. If you do negotiate a cancellation fee, you should agree a set date by which payment should be made. If you have agreed this, and the booker defaults on it, your claim will revert back to the original fee. If you (or Equity) has to take them to court it will then normally be for this full fee (or loss).

Another more 'legalese' way of agreeing effectively the same thing is if you mark all your correspondence with the booking regarding the agreement for the cancellation fee 'without prejudice'. This means without affecting your rights to the payment due under the original contract.

This time, you don't need to agree a date but, if the booker defaults, then you are entitled to claim your full fee again after a reasonable amount of time. Normally they have agreed to make payment straight away so waiting a week would be reasonable. Depending on who you are dealing with a clear deadline for payment may be simpler to administer.

If the booking was through an agent (acting in the capacity of an employment agency), then your contract is ultimately with the booker and the agent may not be that willing to assist if they don't want to upset a client so it will be down to the entertainer to try to get payment (with Equity's assistance if necessary). If the agent was acting in the capacity of an employment business, then they are liable for the cancellation (even if they're terms and conditions indicate otherwise).

Late Payments & Non-Payments:

If you have completed a job, but have not received payment within the agreed or a reasonable time period, then it is standard practice to chase that payment to find out if there is a problem. A polite phone call, or preferably an email so you've got a record, should suffice.

If you don't hear anything or you receive a 'fob off' type communication, then you should consider writing a more formal letter. This should set out clearly the money that is owed, what the payment is for and indicate a clear deadline e.g. 7 or 10 days from the date of the letter. If payment is then not received, then you could hand the matter over to Equity.

Late Payment Charges:

When a payment is late, you are normally entitled to apply late payment charges under the Late Payment of Commercial Debts (Interest) Act 1998. In the absence of agreed payment terms 'late' is defined as more than 30 days for public sector and 60 days for private. The charges are £40 for debts less than £1000 or £70 for debts over £1000 plus interest from when the debt is due at the prevailing rate (currently 8.5% pa in 2016).

If a company, normally a limited company, is unable to pay its debts then ultimately it may be decided to close the company by following one of a number of standard procedures. Liquidation is the most common one where all the assets are disposed of to raise as much money as possible to pay the creditors.

In the event of this happening, if you are owed money, then the liquidators will write to you asking for details of the money owed. You will then be placed on a creditors' list — usually with many others. The banks, the HMRC and the liquidators themselves have first call on any money raised followed by employees and unfortunately, last on the list is the 'unsecured creditors' which will usually be suppliers such as entertainers.

Events companies and the like very rarely have much in the way of disposable assets to sell such as property, cars and furniture so in most cases there is nothing to distribute to unsecured creditors.

Administration is slightly different in that the company is looking to become solvent again by finding a buyer or investment to get back on its feet. This is sometimes achievable although agreements may be made with creditors to accept less than they are owed. If a company informs you that it has 'ceased trading' or says it's closed down that does not at that stage change its status legally and it is still liable for its debts.

Once a company has been formally closed its entry on Companies House will say 'Dissolved' and there is nothing further that can be done to pursue it for money owed. Frustratingly, the directors can set up a new company and start afresh.

While occasionally a booker might be justified in complaining about a factor of the entertainment service provided it is sadly not uncommon for a booker to look for an excuse not to make full payment. This could be because they've under-budgeted the cost of an event or for some reason are looking to cut costs.

Some typical examples which might be used to justify asking for a discount:

• Entertainer wasn't very good.
• Guest complained about the entertainer.
• Entertainer used offensive material.
• Entertainer arrived late / left early / didn't do their full set.
• Children's Entertainer didn't keep control of the kids.
• Entertainer was rude to a guest.
• Guests left the venue when the entertainer was performing.

Many of these reasons are subjective and are nothing to do with whether the entertainer has delivered according to their contract. It is normally up to the booker to ensure they are booking the right act for their event. If a known 'blue' comedian is booked for an event for which they wouldn't be suitable that is not normally their fault.

If an entertainer performs something completely different to what is expected i.e., not their 'Act as Known', then that may be a different matter. Timings can be contentious but reasonable discussions at the event should prevent misunderstandings.

Children's Entertainers are not generally booked as child minders and crowd controllers and the hirer should ensure responsible adults are present while the entertainer is performing. In general, an entertainer would know whether they have under-performed for some reason and may be willing to lower their fee slightly but mostly if they've turned up and performed their usual act, then the full fee would be due.

It is worth being wary of contracts for work overseas. This applies whether in the EU or elsewhere. This is because it can be very difficult to resolve issues such as late or non-payments if things go wrong. For one-off dates for overseas work, it is good practice to get some payment upfront before travelling if possible and also consider very carefully those where you have to pay your own travel expenses in advance on the promise of being reimbursed later on.

Equity has two standard contracts which members can use for bookings of their act. These are:

1. Variety and Light Entertainment Council 'Act as Known' contract.
2. National Standard Contract.

The first is one which Equity has agreed with the Variety and Light Entertainment Council (VLEC), which is an industry body made up of the managements, agents and trade unions in the live performance sector. This has been in place for some time and is a benchmark contract for the industry. This is recommended for larger bookings with higher levels of fees or blocks of work.

The National Standard Contract was developed by Equity and is less formal and shorter and therefore more suitable for smaller jobs.

Both of these contracts are available as downloads on this page.