TERMS & CONDITIONS
1. DEFINITIONS APPLYING TO THESE GENERAL TERMS AND CONDITIONS
- Aw: Auteurswet 1912 [Dutch Copyright Act of 1912]
- Photographic Work: photographic works as referred to in Article 10, section 1 subsection 9 Aw, or other works covered by the Aw that can be equated with the said photographic works.
- Photographer: the user as defined by Book 6, Article 231 of the Dutch Civil Code.
- Client: the counterparty as defined by Book 6, Article 231 of the Dutch Civil Code.
- Usage: copying and/or publication as defined by Article 1 in conjunction with Articles 12 and 13 of the Aw.
These general terms and conditions apply to all legal relationships between a Photographer and Client, including offers, confirmations of orders and oral or written agreements, even after the termination of an agreement, unless the parties have explicitly deviated from these Terms and Conditions in writing.
Offers are entirely free of obligation unless expressly stated otherwise. The Photographer has the right to withdraw his offer up to two working days after receiving acceptance of this offer. The offer does not oblige the Photographer to deliver part of the agreement in return for a proportionate price.
4.1 If the parties have not agreed on a price, then the Photographer shall charge his usual rate.
4.2 If and insofar as there is no usual rate, the Photographer shall fix the rate in a reasonable and fair way, bearing in mind (i) the rates for similar commissions normally charged in the market between similar customers and similar suppliers, with reference to rates charged by the Photographer’s colleagues, (ii) what in past cases was by right regarded as reasonable and fair, (iii) comparable rates charged by photographers in neighboring countries, and (iv) the scope and extent of the desired usage of the work by the client.
4.3 If it is plausible that the Photographer had to spend more and/or had to carry out additional work within reason, then these costs and/or additional work shall also be payable by the client.
5. INVOICE AND PAYMENT
5.1 The client shall check that the invoice is accurate. If the client has not rejected the invoice in writing and returned it to the Photographer within ten working days of its date, providing legally relevant reasons for doing so, then the invoice shall be deemed to be binding between the parties and the client loses any right to put in a claim.
5.2 Payment shall be made within thirty days of the date of the invoice.
5.3 The client shall pay the amount due to the Photographer without any reduction or claim to compensation, except for the deduction of any advance payments agreed between the parties and previously made to the Photographer.
5.4 If the Photographer has not received the amount due within the period specified in 5.2 above, the client is in breach and therefore liable for interest at the statutory rate plus 2%.
5.5 If the client is in breach of its obligations under the agreement, including any infringement of copyright, then it is liable for all judicial and extra-judicial costs incurred in seeking compensation for the same.
5.6 Any use of the Photographic Work whatsoever is prohibited until the client has paid any outstanding invoice of the Photographer or has otherwise complied with any other obligation arising from any agreement whatsoever with the Photographer.
6.1 If the payment is dependent in any way on any facts or circumstances to be proven by the financial records of the client, then upon receiving such a statement from the client the Photographer is entitled to have the financial records audited by any RA/AA accountant he may choose to appoint.
6.2 In the event that the results of the audit differ by more than 2% from the statement and payment by the client, then the auditor’s expenses shall be paid in full by the client. The client shall then also pay to the Photographer the amount due on the basis of the correct information after this has been invoiced.
7. COMPLIMENTARY COPY
Upon publication of Photographic Work, the client should immediately and free of charge provide the Photographer with a complimentary copy of the publication.
8.1 Digital files containing Photographic Works shall be delivered following proper consultation and in a manner agreed between both parties and are at the risk of the client from the moment they are sent.
8.2 In case no delivery time or date has been agreed, the Photographer shall decide a reasonable period.
8.3 If the Photographer and the client agree to fix the delivery at an earlier date, the Photographer is entitled to increase the price originally agreed by at least 50%.
8.3 Every delivery, including the delivery of any part of a commission, may be invoiced separately if any part of a commission can be valued separately.
Complaints regarding the Photographic Work supplied should be reported to the Photographer in writing as soon as possible, within a maximum of ten working days of its delivery. The Photographer has the right to substitute the rejected work with good work within a reasonable period unless this would cause disproportionate damage to the client.
11. SUBMISSION ON APPROVAL
11.1 Digital files of Photographic Works submitted on approval which are not used should be erased or destroyed by the client within ten working days after they were received.
11.2 In the event that digital files of the Photographic Works are retained beyond the agreed period, the client shall compensate the Photographer for the damage he has suffered as a result.
12.1 A commission contract is an agreement in which the Photographer undertakes to the client to make and/or supply Photographic Works.
12.2 A commission contract becomes binding when the offer of the Photographer is accepted by the client. This acceptance can be confirmed by a written confirmation sent by the Photographer to the client to be retained by the client; or in the absence of the same, by the factual knowledge and permission of the client to the carrying out of the work by the Photographer in accordance with the offer.
12.3 The Photographer is entitled to carry out every part of the commission contract not explicitly described according to his own technical and creative judgment.
12.4 Changes to the commission by the client for whatever reason and pending the carrying out of the commission contract shall be at the expense of the client. They will only be carried out by the Photographer once a separate offer for the additional costs has been signed in agreement by the client, and returned to the Photographer.
12.5 In the event that a commission contract has been canceled by the client at whatever time and for whatever reason, the Photographer is entitled to receive the agreed price, minus costs not yet made.
12.6 Unless expressly agreed otherwise, the Photographer is at complete liberty to choose the suppliers and third parties with whom he will work in order to carry out the commission contract, including models and stylists.
13.1 In the event that the usage of Photographic Works on the Internet is agreed, the client shall ensure that the size of the Photographic Works shown does not exceed 800 by 600 pixels.
13.2 The client shall not make any copies of the Photographic Works – digital or otherwise – other than those that are strictly required for the agreed usage on the Internet. At the completion of the agreed usage, the client shall erase or destroy the used (working) copy(ies) of the Photographic Works.
13.3 The client shall provide the Photographer with unlimited access free of charge to each part of its website on which the Photographic Work is reproduced. If special arrangements need to be made to achieve this, then the client will ensure these are made.
Copyright of the Photographic Works is owned by the Photographer.
14.1 All photographic materials, such as original negatives, photos, or slides, shall be the exclusive property of the Photographer. The Photographer shall own the copyright in all images created and may use the work for samples, contests, exhibition, advertising, and self-promotion. Usage outside the bounds of this agreement will require the client’s consent.
14.2 If the client does not allow the Photographer to publish the images, an additional cost of € 250 will be charged.
15.1 The client is obtaining prints/digital files for personal use only, and shall not sell said prints/digital files or authorize any reproductions thereof by parties other than the Photographer. If the client is obtaining a print for reproduction, Photographer authorizes the client to reproduce the print only as set forth under Special Usage Requirements. In such an event, the client shall request that a copyright and credit notice for the Photographer be placed adjacent to the photograph on publication but shall have no liability if the publication refuses or omits to do so.
15.2 If the Photographer has given permission for image manipulation, electronically or otherwise, the result may only be used once explicit written consent has been obtained.
16. Sub-licenses: Unless otherwise agreed, the client is not entitled to grant sub-licenses to a third party.
17. INFRINGEMENT OF COPYRIGHT
17.1 Each unauthorized use of Photographic Work is deemed to be an infringement of the Photographer’s copyright.
17.2 Any infringement entitles the Photographer to claim compensation of at least three times the license fee usually charged by the Photographer for such type of use, without losing any right to claim compensation of other damages (including the right to compensation of all direct and indirect damages and all judicial and extra-judicial costs actually incurred).
18. PHOTOGRAPHER’S CREDIT
18.1 The name of the Photographer should be clearly credited alongside the Photographic Work used, or included elsewhere in the publication with reference to the Photographic Work.
18.2 Failure to comply with this condition entitles the Photographer to claim compensation of at least 100% of the license fee usually charged by the Photographer for such a type of use, without losing any right to claim compensation of other damages (including the right to compensation for all direct and indirect damages and all judicial and extra-judicial costs actually incurred).
18.3 If the client has obtained written consent to reproduce in whatever form the Photographic Work, it shall ensure that the name of the Photographer accompanies these reproductions.
19. MORAL RIGHTS
19.1 The client shall always respect the moral rights of the Photographer in accordance with Article 25 (1)(c) and (d) Aw when reproducing or publishing a Photographic Work.
19.2 Any infringement of these moral rights entitles the Photographer to claim compensation of at least 100% of the license fee usually charged by the Photographer for such a type of use, without losing any right to claim compensation of other damages (including the right to compensation for all direct and indirect damages and all judicial and extra-judicial costs actually incurred).
20. THIRD-PARTY RIGHTS
20.1 If the client publishes a Photographic Work, he/she/they is solely responsible for obtaining the consent of those persons depicted and/or other legally entitled parties. The client indemnifies the Photographer from all claims relating to the same.
20.2 The Photographer is obliged to cooperate in tracing the persons referred to in this article.
21. LIABILITY OF THE PHOTOGRAPHER
The Photographer is not liable for any loss suffered by the client unless such loss is caused by the gross negligence or deliberate act of the Photographer or any third party acting on his behalf. Any liability is limited to the amount of the invoice or, if and insofar as the damage is insured, up to the amount of the sum actually paid out under the insurance policy.
The Photographer and the client are each entitled to terminate the agreement with immediate effect if the client becomes bankrupt or is granted a moratorium. In the event of the bankruptcy of the client, the Photographer has the right to terminate the license, unless the consequences of doing so would be in breach of the principles of reasonableness and fairness.
23. CHOICE OF LAW AND FORUM
23.1 All matters governed by these General Terms and Conditions are subject to Dutch law.
23.2 The Vienna Sales Convention 1980 (CISG) shall not apply.
23.3 Any dispute concerning the wording and explanation of these General Terms and Conditions and a legal relationship between the Photographer and the client shall be brought before the court with relevant jurisdiction in the Netherlands. The original Dutch version of these General Terms and Conditions has been filed with the Court of Amsterdam under reference number 84/2011.