Terms and Conditions
1. Definitions
In these General Terms and Conditions, the following terms are understood to mean: Copyright Act: Copyright Act 1912 Photographic work: photographic works as referred to in Article 10 paragraph 1 sub 9 of the Copyright Act, or other works within the meaning of the Copyright Act, which can be equated with said photographic works. Image carrier: the carrier on which a Photographic work (whether or not recognizable to the eye) is recorded, such as a slide, negative, print, polaroid, CD-ROM, DVD or USB stick. Photographer: the user within the meaning of Article 6:231 of the Dutch Civil Code. Other party: the other party within the meaning of Article 6:231 of the Dutch Civil Code. Use: reproduction and/or publication within the meaning of Articles 1, 12 and 13 of the Copyright Act.
2. Application
These General Terms and Conditions apply to all legal relationships between a Photographer and an Other party, including quotations, order confirmations and oral or written agreements, even after the termination of an agreement, unless the parties have deviated from these conditions in writing and explicitly.
3. Quotation
Quotations are entirely non-binding, unless expressly stated otherwise. The Photographer has the right to withdraw this offer up to two working days after receipt of acceptance of his offer. The quotation does not oblige delivery of part of the performance at a proportional price.
4. Remuneration
4.1 If the parties have not agreed on a remuneration, the remuneration customarily used by the Photographer applies.
4.2 If and insofar as a customarily used remuneration cannot be mentioned, the Photographer will determine the remuneration in accordance with reasonableness and fairness, whereby the Photographer may, among other things, refer to (i) the remuneration customary in the market for comparable assignments, between comparable clients and comparable contractors, whereby reference may be made to remuneration as charged by colleagues of the Photographer, (ii) what has been designated as reasonable and fair in previous cases in law, (iii) comparative remuneration as charged by photographers in surrounding countries and (iv) the scope and extent of the use of the work desired by the Other party.
4.3 If it is plausible that the Photographer has incurred higher costs and/or performed additional work, which were reasonably necessary, these costs and/or this additional work are also eligible for remuneration by the Other party.
5. Invoice and payment
5.1 The Other party will check the Photographer’s invoice for inaccuracies. If the Other party has not rejected the invoice in writing with legally relevant reasons within ten working days after the invoice date and returned it to the Photographer, the invoice in question will be considered binding between the parties and any right of the Other party to complain will lapse.
5.2 Payment must be made within fourteen (14) days after the invoice date.
5.3 The Other party makes the payments owed to the Photographer without discount or appeal to set-off, except for set-off with mutually recognized offsetable advances that he has provided to the Photographer.
5.4 If the Photographer has not received the amount owed within the period referred to in 5.2, the Other party is in default and therefore owes the statutory interest, increased by 2%.
5.5 If the Other party is in default or has otherwise failed to fulfill one or more of his obligations, including an infringement of copyright, all costs for obtaining satisfaction in and out of court will be at his expense.
5.6 No use whatsoever of the Photographic work in any way is permitted as long as the Other party has not yet paid any outstanding invoice from the Photographer or has otherwise not fully complied with any obligation arising from any agreement with the Photographer.
6. Inspection
6.1 If the remuneration is in any way dependent on facts or circumstances that must be evident from the administration of the Other party, the photographer has the right, after a statement from the client, to have the administration of the client checked by an RA/AA accountant designated by the photographer.
6.2 In the event that the result of the inspection deviates more than 2% from the statement and settlement of the Other party, the costs of the inspection will be fully borne by the Other party. In addition, the Other party will then pay the remuneration owed based on the actual data, after invoicing to the Photographer.
7. Proof copy
Upon publication of a Photographic work, the Other party must immediately and without charge send a proof copy of the publication to the Photographer.
8. Delivery
8.1 Image carriers are delivered at the premises where the Photographer carries out his business. Sent Image carriers are at the risk of the Other party from the moment of dispatch until the moment that the Image carriers are received back undamaged by the Photographer.
8.2 Digital files with Photographic works are delivered in good consultation and in a manner agreed upon by both parties and are at the risk of the Other party from the moment of dispatch.
8.3 If no delivery time has been agreed, it will be determined reasonably by the Photographer.
8.4 If the Photographer and the Other party agree that the delivery time is brought forward, the Photographer has the right to increase the originally agreed remuneration by at least 50%.
8.5 Each delivery, including delivery of a part of a composite assignment, can be invoiced separately if a part of a composite assignment is separately valuable.
9. Complaints
Complaints regarding the delivered work must be communicated to the Photographer in writing as soon as possible, but in any case within ten working days after delivery of the Photographic works. The Photographer has the right to still deliver good work for rejected work within a reasonable period, unless this would lead to disproportionate damage for the Other party.
10. Possession/ownership of Image carriers
10.1 If it has not been agreed that Image carriers remain in the possession of the Other party, the Other party must ensure that they are returned to the Photographer free of charge immediately after the agreed use. Failure to comply with this obligation or failure to do so in time does not lead to loss of any right of the Photographer.
10.2 If Photographic works have been supplied as digital files, the Other party will delete and/or destroy them immediately after the agreed use and not store them for reuse. Failure to comply with this obligation or failure to do so in time does not lead to loss of any right of the Photographer.
10.3 If an Image carrier has not been returned to the Photographer within four weeks after the agreed period, it is considered lost.
10.4 In case of loss or damage to an Image carrier, the Other party is obliged to compensate the damage suffered by the photographer as a result.
10.5 Image carriers remain the property of the Photographer. The Other party only has the right to transfer ownership if this has been expressly agreed.
11. View submissions
11.1 Image carriers made available as a view submission that are not used must be returned by the Other party within ten working days after receipt.
11.2 Digital files with Photographic works received as a view submission that are not used must be deleted or destroyed by the Other party within ten working days after receipt.
11.3 In the event that Image carriers and/or digital files with Photographic works are retained longer than the agreed period, the Other party is obliged to compensate the damage suffered by the Photographer as a result.
11.4 The Other party is not only obliged to return the original Image carriers sent to him to the Photographer in a timely manner, but he will also not retain any duplicate made in any form whatsoever of the Image carriers and/or received digital files with Photographic works and will immediately (have) destroy each such duplicate.
12. Assignment
12.1 An assignment agreement is an agreement whereby the Photographer undertakes to the Other party to create and/or deliver Photographic works.
12.2 An assignment agreement is concluded by the Other party’s acceptance of the Photographer’s quotation. This acceptance can also be evident from the Photographer sending a written order confirmation to the Other party which is retained by the Other party or, in the absence thereof, from the Other party’s actual knowledge and tolerance of the performance of work by the Photographer in accordance with the quotation.
12.3 The Photographer has the right to carry out everything that is not expressly described in an assignment agreement according to his own technical and creative judgment.
12.4 Changes to the assignment by the Other party for any reason whatsoever and during the execution of the assignment agreement are at the expense of the Other party and will only be carried out by the Photographer after a separate quotation for additional costs that has been signed for approval by the Other party and returned to the Photographer.
12.5 In case of cancellation of an assignment agreement by the Other party at any time and for any reason whatsoever, the Photographer is entitled to the agreed remuneration, reduced by the costs not yet incurred.
12.6 Unless expressly agreed otherwise, the Photographer is completely free in the choice of suppliers and third parties with whom the Photographer works to execute the assignment agreement, including models and stylists.
13. Internet
13.1 In case of agreed use on the internet, the Other party will ensure that the dimensions of the Photographic work displayed by it on the internet are no larger than 800 by 600 pixels.
13.2 The Other party will not make any other copies of the Photographic works – digital or otherwise – than those strictly necessary for the agreed use on the internet. After the agreed use, the user will delete or destroy the used (working) copy(ies) of the Photographic work.
13.3 The Other party will freely and free of charge provide the Photographer with access to any part of its website on which the Photographic work is displayed. If special provisions are needed for this, he will provide them to the Photographer.
14. Copyright
The copyright to the Photographic works rests with the photographer.
15. License
15.1 Permission for use of a Photographic work by the Other party is granted exclusively in writing and in advance in the form of a license as described by the Photographer in terms of nature and scope in the quotation and/or the order confirmation and/or the invoice relating thereto.
15.2 If nothing has been stipulated regarding the scope of the license, it shall never include more than the right to one-time use, in unchanged form, for a purpose, circulation and manner as the parties intended when concluding the agreement in accordance with the Photographer’s understanding.
15.3 In the absence of a specifically agreed method of publication and/or described purpose and/or described circulation, only those powers are deemed to have been given that are standardly included in the license or that necessarily follow from the nature and purport of the agreement.
15.4 If permission has been given by the Photographer for electronic or other forms of image manipulation, the result can only be used after his express written approval.
16. Sublicenses
Unless otherwise agreed, the Other party is not authorized to grant sublicenses to third parties.
17. Copyright infringement
17.1 Any use of a Photographic work that has not been agreed upon is considered an infringement of the Photographer’s copyright.
17.2 In the event of infringement, the Photographer is entitled to a remuneration amounting to at least three times the license fee customarily used by the Photographer for such form of use, without losing any right to compensation for other damage suffered (including the right to compensation for all direct and indirect damage and all actual legal and extrajudicial costs).
18. Name credit
18.1 The name of the Photographer must be clearly stated with a used Photographic work, or be included with a reference to the Photographic work in the publication.
18.2 In case of non-compliance with this condition, the Photographer is entitled to a remuneration of at least 100% of the license fee customarily used by the Photographer, without losing any right to compensation for other damage suffered (including the right to compensation for all direct and indirect damage and all actual legal and extrajudicial costs).
18.3 When the Other party has obtained written permission to reproduce the Photographic work, in any form whatsoever, it is obliged to ensure that the name of the Photographer is affixed to these reproductions. In the case of digital/electronic copies, the Other party is also obliged to ensure that the complete metadata – as made by the Photographer part of the digital file – is preserved; this concerns information according to the EXIF, IPTC, XMP and ICC standards.
19. Moral rights
19.1 The Other party shall at all times observe the moral rights of the photographer in accordance with Article 25 paragraph 1 sub c and d of the Copyright Act when reproducing and publishing a Photographic work.
19.2 In case of violation of said moral rights, the Photographer is entitled to a remuneration of at least 100% of the license fee customarily used by the Photographer, without losing any right to compensation for other damage suffered (including the right to compensation for all direct and indirect damage and all actual legal and extrajudicial costs).
20. Rights of third parties
20.1 The Other party who publishes a Photographic work is, to the exclusion of others, responsible for obtaining permission from portrayed persons and/or other rights holders. The Other party indemnifies the Photographer against all claims in this regard.
20.2 The Photographer is obliged to cooperate to the best of his ability in tracing the persons referred to in this article.
21. Liability of Photographer
The Photographer is not liable for any damage incurred by the Other party, unless there is gross negligence or intent on the part of the Photographer or persons engaged by him. The liability is in any case limited to the amount of the invoice, or, if and insofar as there is insured damage, to the amount of the sum actually paid out under the insurance.
22. Bankruptcy/suspension of payments
Both the Photographer and the Other party have the right to immediately terminate the agreement in case of bankruptcy or suspension of payments of the other party. In case of bankruptcy of the Other party, the Photographer has the right to terminate the granted license, unless the consequences thereof are contrary to reasonableness and fairness.
23. Choice of law and forum
23.1 All cases to which these General Terms and Conditions apply are governed by Dutch law.
23.2 Any dispute regarding the text and interpretation of these General Terms and Conditions and a legal relationship between the Photographer and the Other party will be submitted to the competent court in the Netherlands.
