Photography

1.Definition

In these General Terms and Conditions, the following definitions shall apply: Aw: Auteurswet 1912 Fotografisch werk: photographic works as referred to in Article 10 section 1 subsection 9 Aw, or other works within the meaning of the Aw, which can be equated with said photographic works.

Photographer: the user within the meaning of Article 6:231 of the Dutch Civil Code.

Other party: the other party in the sense of Art. 6:231 Civil Code.

Use: reproduction and/or publication within the meaning of Article 1 in conjunction with Articles 12 and 13 Aw.

2. Application

These General Terms and Conditions apply to all legal relationships between a Photographer and a Counter Party, including offers, confirmations of orders and oral or written agreements, even after the termination of an agreement, unless the parties have expressly deviated from these terms and conditions in writing.

3. Fee

3.1 If the parties have not agreed on a fee, the Photographer shall unilaterally and fairly determine the fee, taking into account the scope and extent of the use of the work desired by the Other Party.

3.2 Necessary costs and/or additional work must be paid by the Other Party.

4. Invoice and payment

4.1 Payment shall be made within 30 days from the date of invoice.

4.2 If the Photographer has not received the amount due within the period specified in 4.1, the Other Party shall owe statutory interest plus 2% on the invoice amount.

4.3 If the Other Party is in default or has failed in any other way to fulfil one or more of its obligations, including any infringement of copyright, then all judicial and extrajudicial costs incurred by the Photographer to obtain satisfaction shall be paid by the Other Party.

4.4 No use whatsoever of the Photographic Work is permitted until the Other Party has paid any outstanding invoice from the Photographer.

5. Complaints

Complaints regarding the Photographic Work supplied should be reported to the Photographer in writing/by email as soon as possible and in any case within ten working days of its delivery. The Photographer has the right to substitute good work for rejected work within a reasonable period, unless this would cause disproportionate damage to the Other Party.

6. Assignment

6.1 The client shall inform the Photographer in writing of any specific wishes relevant to the execution of the commission in good time before the start of the commission.

6.2 The Photographer shall carry out the commission in accordance with his own technical and creative judgment, making every effort to meet specific wishes of the client as referred to in the previous paragraph.

6.3 The commission is always to be regarded as an obligation to perform to the best of one's ability, not as an obligation to achieve a certain result.

6.4 Changes to the commission by the Other Party for whatever reason shall be at the expense of the Other Party and shall only be carried out by the Photographer after a separate offer of additional costs has been signed for approval by the Other Party and returned to the Photographer.

6.5 In the event that a commission contract is cancelled by the Other Party at any time and for any reason whatsoever, the Photographer is entitled to the agreed payment. In the event of cancellation, the non-professional client is only liable for a part of the payment, to be reasonably determined taking into account the work already carried out.

7. Delivery

Files shall be delivered in the agreed format and file type.

8. Illness / force majeure

8.1 The Photographer is not liable for not fulfilling or not fulfilling on time his obligations due to force majeure.

8.2 In addition to its definition in the law and jurisprudence, force majeure is defined as all external causes, whether anticipated or not, over which the Photographer has no control and which prevent him from fulfilling his obligations, including illness and temporary or permanent disability.

8.3 In the event of force majeure, the obligations of the Photographer may be taken over by a fellow Photographer in consultation with the client. Such a person shall be appointed by the Photographer.

8.4 If the Photographer has already fulfilled part of his obligations when force majeure occurs, or will only be able to fulfil part of his obligations, he is entitled to invoice separately that part of the services already supplied, including expenses incurred, and the customer is obliged to pay this invoice.

9. Copyright

The copyright on the Photographic Works is held by the Photographer.

10. Licence

10.1 Any permission for the use of a Photographic Work by the Other Party shall only be granted in writing/by email and in advance in the form of a licence the nature and scope of which is described by the Photographer in the offer and/or the confirmation of the commission and/or the related invoice.

10.2 If the scope of the licence is not specified, it shall never exceed the right to one single use, in unaltered form, for a purpose, circulation and manner as intended by the parties at the time they enter into the agreement, in accordance with the understanding of the Photographer.

10.3 Exclusive exploitation must always be explicitly agreed in writing and does not fall under the exploitation right mentioned in article 10.2.

10.4 The Other Party is not permitted to transfer the exploitation rights described in this article to third parties without the prior written consent of the Photographer.

10.5 Unless otherwise agreed, the Other Party is not entitled to grant sub-licences to third parties.

11. Infringement of copyright

11.1 Each use of a Photographic Work that has not been agreed is deemed to be an infringement of the Photographer's copyright.

11.2 Any infringement entitles the Photographer to claim compensation of at least three times the licence fee usually charged by the Photographer for such type of use, without losing any right to compensation of other damages (including the right to compensation for all direct and indirect damages and all judicial and extra-judicial costs actually incurred).

12. Attribution and Personal Rights

12.1 The name of the Photographer shall be clearly mentioned with a used Photographic Work, or included in the publication with a reference to the Photographic Work.

12.2 When reproducing and publishing a Photographic Work, the Other Party shall at all times respect the moral rights of the Photographer in accordance with Article 25.1subcendAt all times.

12.3 For each infringement of the moral rights vested in the Photographer by Article 25 of the Copyright Act, including the right to mention his name, the Other Party shall owe compensation of at least 100% of the licence fee usually charged by the Photographer, without losing any right to claim compensation for other damages (including the right to compensation for all direct and indirect damages and all judicial and extra-judicial costs actually incurred).

13. Liability and rights of third parties

13.1 The Photographer is authorised to enter into this Agreement and grant the aforementioned licence.

13.2 The Photographer is not liable to the Other Party for claims by third parties and/or damages resulting from the exploitation and publication of the Work, except in the case of gross negligence or wilful misconduct on the part of the Photographer.

13.3 The liability of the Photographer is in any case limited to the amount of the invoice, or, if and to the extent that the damage is insured, to the amount of the sum actually paid out under the insurance policy.

13.4 If third parties announce or bring a claim against the Photographer and/or the Other Party with regard to the Work, the Other Party and the Photographer shall decide in mutual consultation whether they will defend themselves against this and how this will be done.

14. Bankruptcy/suspension of payment

Both the Photographer and the Counter Party are entitled to terminate the agreement with immediate effect if the other party becomes bankrupt or is granted a moratorium. In case of bankruptcy of the Counter Party, the Photographer has the right to terminate the licence granted.

15. Choice of law and forum

15.1 All matters governed by these General Terms and Conditions shall be governed by Dutch law.

15.2 Any dispute concerning the wording and explanation of these General Terms and Conditions and a legal relationship between the Photographer and the Other Party shall be brought before the court with relevant jurisdiction in the Netherlands.