Rev. 2, 09-02-2015
For these General Conditions the following definitions apply:
- Aw: Auteurswet 1912
- Photographic work: Photographic works as described in article 10 lid 1 sub 9 Aw, or other works as described in Aw, which can be compared to photographic works.
- image carrier: the carrier which contains said Photographic Work (recognisable or not), like a slide, negative, print, polaroid, CD-rom, DVD or usb stick.
- Photographer: the user as described in art. 6:231 BW.
- Other Party: the other party as described in art. 6:231 BW.
- Use: making public or distrbuting as described in article 1 jo 12 en 13 Aw.
These General Conditions of Sales apply to all legal communications and commitments between a Photographer and the Other Party, including quotations, order confirmations and agreements on paper and orally, and to apply after the ending of the agreement, unless this is waived in writing by both Parties.
Quotations are never a commitments and may be changed, unless waived in writing. The Photographer has the right to recall his quotation up to two working days after acceptance of the quotation. The quotation never is any commitment to deliver any part or the whole of the quoted services against the quoted prices. De offerte verplicht niet tot levering van een deel van de prestatie tegen een proportionele prijs.
4. Fees and prices
4.1 If both Parties have not agreed on a price, the regular accepted fees and prices as defined by the Photographer apply.
4.2 If and when a regularly accepted fee and price cannot be defined, the Photographer will decide on a reasonable fee and price , at which he will (i) use the fair and reasonable and accepted market prices for similar assignments and services, between similar Parties, where the Prices and Fees defined in those cases can be used in this case, (ii) where those prices were seen as fair and reasonable in previous cases, (iii) applicable fees and prices are used by other Photographers in surrounding areas ad countries and (iv) the reach and scope of the use of the Photographic Work by the Other Party is roughly equal.
4.3 If proof can be delivered that higher costs and more work was needed by the Photographer, which are reasonably needed for these services, these costs will be applicable for the Other Party as well.
5. Invoice and Payment
5.1 The Other Party will check the invoice of the Photographer. If the other Party has not rejected and returned the said invoice to the Photographer with valid and legal reasons in writing within 10 work days after the Invoice Date, the Invoice will be seen as binding and all rights on rejection will be invalid.
5.2 Payment shall be done within 30 days of the Invoice Date.
5.3 The Other Party shall pay the amount due to the Photographer without any reduction or claim to compensation, except settlement agreed between the parties off against advances he has made to the Photographer .
5.4 If the Photographer has not received the amount due within the period specified in 5.2, the Party is in breach and therefore liable for the statutory interest plus 2%.
5.5 If the other party is in default or otherwise failed to fulfill any of its obligations, including any infringement of copyright , then all costs of obtaining payment in and out of court on his behalf .
5.6 Any use of the Photographic Work by any means whatsoever is permitted, as long as the other party any outstanding invoice of the Photographer has not paid or otherwise not complied with any other obligation arising from any agreement with the Photographer.
6.1 If the payment is in any way subject to facts or circumstances to be proven by the administration of the other party, the photographer after a statement from the client the right to inspect the financial records audited by one of the photographer pointing RA / AA accountant.
6.2 In the event that the results of monitoring more than 2 % from the statement and payment by the Other Party, then the cost of the audit fully borne by the other party . In addition, the other party will then on the basis of actual data due, after invoicing to the Photographer.
7. Complimentary copy
Upon publication of a Photographic Work the Other Party should immediately and free of charge, send a complimentary copy of the publication to the Photographer.
8.1 Image Carriers shall be delivered in the premises in which the Photographer carries out his business. Sent image carriers from the moment of transmission risk of the other party to the moment the image carriers by the photographer are received back undamaged.
8.2 Digital files containing Photographic Works shall be delivered following proper consultation and in a manner agreed upon by both parties and from the moment of transmission risk of the other party.
8.3 If no delivery time has been agreed, which is determined by the Photographer reasonably.
8.4 If the Photographer and the Other Party agree that the delivery at an earlier date, the Photographer has the right to increase the price originally agreed by at least 50%.
8.5 Every delivery, including the delivery of any part of a commission may be invoiced separately if any part of the composite order is valued separately.
Complaints regarding the work should as soon as possible and in any event within ten days after delivery of the Photographic Works to be notified to the Photographer. The Photographer has the right within a reasonable period with good work disapproved work, unless this would cause disproportionate damage to the Other Party.
10. Possession and ownership of Image Carriers
10.1 If there is agreement that the Image Carriers remain in the possession of the other party, without delay, after the agreed usage for free return to the Photographer wear. It is not too late or not at all shall not result in the Photographer losing any of his rights.
10.2 If Photographic Works have been delivered in digital, the Other Party shall immediately erase after the agreed usage and / or destroy and not store them for reuse. It is not too late or not at all shall not result in the Photographer losing any of his rights.
10.3 If an Image Carrier is not returned within four weeks after the agreed period to the photographer, he is considered missing.
10.4 In the event of loss or damage to an Image Carrier is the Other Party shall compensate the Photographer for his loss.
10.5 Image Carriers remain the property of the photographer. The Party is only entitled to acquire the ownership if this has been expressly agreed.
11.1 as a consignment to Image Carriers that are not used should the other party within ten working days of receipt to be returned.
11.2 Digital files of Photographic Works that are not used should the other party within ten working days of receipt to be erased or destroyed .
11.3 In the event that Image Carriers and / or digital files containing Photographic Works are retained beyond the agreed period , the Other Party shall compensate the Photographer for his loss .
11.4 The Other Party is not only obliged to return in time for the originally submitted Image Carriers him to the photographer , but he also will not copy in any form of the Image Carriers and / or Digital files of Photographic Works, and any such duplicate immediately ( do ) destroy .
12.1 A commission contract is an agreement in which the Photographer undertakes to the Other Party to make photographic works and / or supply.
12.2 A commission contract is established by acceptance by the other party of the Photographer’s offer. This acceptance can be seen from the sent by the Photographer to the Other Party a written confirmation which is held on by the other party or in the absence thereof, by the factual knowledge and permission of the other party from performing work by the Photographer in accordance with the quote.
12.3 The Photographer is entitled to anything that is not explicitly described in a commission contract to perform to his own technical and creative insight.
12.4 Changes to the contract by the other party for any reason whatsoever and pending the execution of the contract agreement, shall be borne by the other party and will only be executed by the photographer after separate quotation of additional costs has been approved and signed by the other party and to Photographer returned.
12.5 In case of cancellation of a contract agreement by the other party within 14 days after acceptance by the other party subject to a refund policy. This policy applies only to undelivered and unconsumed goods and services, except on specific customer order products manufactured or services rendered. If after this period will be canceled or the goods or services have been delivered and / or consumed, the Photographer is entitled to the agreed price, minus costs not yet made.
12.6 Unless otherwise agreed, the Photographer is at complete liberty to choose the suppliers and third parties with whom the photographer works to achieve performance of the contract agreement, including models and stylists.
13.1 In the event of agreed usage on the Internet, the Party shall ensure that the dimensions of its web depicted Photographic work no larger than 800 by 600 pixels.
13.2 The Counterparty will of the Photographic Works make any copies – digital or otherwise – other than those strictly required for the agreed usage on the Internet . After completion of the agreed usage , the user will be the used (working ) copy (ies ) of the Photographic Works delete or destroy .
13.3 The Other Party shall provide freely and free of charge access to the photographer to each part of its website on which the Photographic Work is reproduced. If special arrangements are needed , he will give it to the photographer.
Copyright of the Photographic Works is owned by the photographer.
15.1 Consent to Use of a Photographic Work the Other Party requires prior written consent in the form of a license as defined nature and scope by the Photographer in the offer and / or order confirmation and / or the relevant invoice.
15.2 If the scope of the license is not specified, it shall not go beyond the right to one single use, in original form and for a purpose, circulation and method as the parties when entering into the agreement in accordance with the concept of the Photographer intended.
15.3 In the absence of a specific agreed method of publication and / or described purpose and / or circulation, only those powers deemed to be given, which are standard included in the license or that necessarily follows from the nature and scope of the agreement .
15.4 If the Photographer has given permission for electronic or other forms of image manipulation, the result may only be used once explicit written approval.
Unless otherwise agreed, the Other Party is not entitled to grant sublicenses to third parties.
17. Infringment of Copyright
17.1 Any use of a Photographic Work is not agreed , is considered an infringement of the Photographer ‘s copyright.
17.2 Any infringement entitles the Photographer to claim compensation of at least three times the shape license fee usually charged by the Photographer for such use, without losing any right to compensation of other damages ( including the right to compensation for all direct and indirect damages and all actual judicial and extrajudicial costs).
18.1 The Photographer’s name must be clearly Photographic Work used, or included a reference to the Photographic Work in the publication. 18.2 Any breach of this condition, the Photographer to claim compensation of at least 100% of the license fee usually charged by the Photographer, without losing any right to compensation of other damages (including the right to compensation for all direct and indirect damage and all actual judicial and extrajudicial costs). 18.3 If the Other Party has obtained written consent to reproduce the Photographic Work, in whatever form, it is hereby required to ensure that the photographer’s name accompanies these reproductions. In the case of digital / electronic copies of the Party is also held there to take care of the entire metadata – as the Photographer to part of the digital file created – preserved; it involves information according to the EXIF, IPTC, XMP, and ICC standards.
19. personality rights
19.1 The Other Party shall when reproducing or publishing a Photographic work at all times respect the moral rights of the Photographer in accordance with Article 25 paragraph 1 sub c and d Aw. 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, without losing any right to compensation of other damages (including the right to compensation for all direct and indirect damages and all effective judicial and extrajudicial costs).
20. Third Party Rights
20.1 The Other Party publishes a Photographic Work, to the exclusion of others is responsible for obtaining the consent of those persons depicted and / or other copyright holders. The Party indemnifies the Photographer from all claims relating.
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 other party will arise, unless there is gross negligence or intent on the part of the photographer or his behalf. The liability is in any case limited to the amount of the invoice or, if and to the extent that there is an insured, up to the height of the lower insurance sum actually paid.
The Photographer and the Other Party shall have the right to terminate the agreement immediately in the event of bankruptcy or receivership of the other party. In case of bankruptcy of the Other Party, the Photographer has the right to terminate the license, unless the consequences are contrary to the reasonableness and fairness.
23. Regularity and choice
23.1 All cases in which these General Terms and Conditions are governed by Dutch law.
23.2 The applicability of the Vienna Sales Convention 1980 (CISG) is excluded.
23.3 Any dispute concerning the wording and explanation of these General Conditions and a legal relationship between the Photographer and the Other Party will be submitted to the competent court in the Netherlands.