TERMS AND CONDITIONS
Terms and conditions are based on the general terms and conditions of DuPho [Association of Dutch Photographers, Piet Heinkade 181-K, 1019HC Amsterdam].
1. Definitions
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. Image Carrier: the carrier on which a Photographic Work (whether or not identifiable with the naked eye) is recorded, such as a slide, negative, print, duplicate copy, Polaroid, CD-rom, DVD or memory stick.
Photographer: the user as defined by Book 6, Article 231 of the Dutch Civil Code.
Other Party: the other party 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.
2. Application
These General Terms and Conditions apply to all legal relationships between a Photographer and Other Party, 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.
3. Offer
3.1 An agreement becomes binding when the offer of the Photographer is accepted by the Other Party. An offer can be accepted by a written confirmation or signing the proposal form sent out by the Photographer to the Other Party.
3.2 Offers are entirely free of obligation unless expressly stated otherwise. The Photographer has the right to withdraw his offer up to four 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. Price system
4.1 If the parties have not agreed a price, the Photographer will fix the price in a reasonable and fair way, bearing in mind the scope and extent of the desired usage of the work by the Other Party.
4.2 Necessary costs and/or additional work must be paid by the Other Part.
5. Invoice and payment
5.1 The Other Party shall check that the invoice of the Photographer is accurate. If the Other Party has not rejected the invoice in writing and returned it to the Photographer within 10 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 Other Party loses any right to put in a claim.
5.2 Payment will be made within 14 days of the date of the invoice.
5.3 The Other Party 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, the Other Party will be in breach and therefore liable for interest at the statutory rate plus 2%.
5.5 If the Other Party is in breach of any of its obligations under the agreement, including any infringement of copyright, it will be liable for all judicial and extra-judicial costs incurred by the Photographer when acquiring payment.
5.6 All use of the Photographic Work, in any shape or form, is prohibited until the Other Party has paid any of the Photographer's invoices which might be outstanding.
6. Complaints
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 Other Party.
7. Assignment
7.1 The client will notify the photographer of any specific wishes which are important for the execution of the assignment in writing and in good time before the assignment will be exerted.
7.2 The Photographer carries out the assignment according to his own technical and creative insight and is committed to meet the specific wishes of the client as referred to in the previous paragraph.
7.3 The assignment is at all times to be regarded as a best-efforts obligation and not as an obligation to achieve a result.
7.4 Changes to the assignment by the Other Party for whatever reason, are for the account of the Other Party and will only be implemented by the Photographer after a separate offer for the additional costs has been signed as approved by the Other Party and returned to the Photographer.
7.5 In the event of cancellation of an assignment contract by the Other Party, at any point in time and for whatever reason, the Photographer will be entitled to the agreed payment, minus the costs not yet made for executing the assignment.
7.6 Unless specifically agreed otherwise, the photographer completely decides which supplies (e.g. drone, camera) and third parties (e.g. content creators, models) will be used to execute the assignment.
8. Delivery
8.1 Files are to be submitted in the agreed format and file type.
8.2 Digital files are at the risk of the Other Party, from the moment they are submitted by the Photographer to the Other Party.
8.3 In case no delivery time or date has been agreed, the Photographer shall decide a reasonable period.
9. Ilness and force majeure
9.1 The photographer is not liable for the non-fulfilment or late fulfilment of his obligations as a consequence of force majeure.
9.2 Force majeure not only means that which is referred to as such in law and jurisprudence, but all externally originating causes, whether foreseen or unforeseen, on which the photographer cannot exert any influence and as a result of which he is unable to fulfil his/her obligations, including illness and temporary and permanent incapacity for work.
9.3 If, in the event of force majeure, the photographer has already partially fulfilled his/her obligations, or will only partially be able to fulfil his/her obligations, he will be entitled to invoice separately the already delivered portion of the services, including the expenses incurred, and the client will be obliged to pay this invoice.
10. Copyright
The copyright of the Photographic Works is owned by the Photographer.
11. Violation of copyright
11.1 Each unauthorized use of a Photographic Work is deemed to be an infringement of the Photographer’s copyright.
11.2 Any infringement with copyright entitles the Photographer to claim compensation of at least four times the licence fee usually charged by the Photographer for such type of use, without losing any right to claim compensation for other damage (including the right to compensation for all direct and indirect damage and all judicial and extra-judicial costs actually incurred).
12. Personality rights
12.1 The name of the Photographer must be clearly credited alongside the Photographic Work used, or included elsewhere in the publication with reference to the Photographic Work.
12.2 In the event of the copying or publication of a Photographic Work the Other Party will, at all times, observe the Photographer's personality rights in accordance with Article 25, section 1, subsection c and d of the Aw.
12.3 In case of any infringement of the Photographer's personality rights ex Article 25 of the Copyright Act, including the right to be named, the Other Party will owe compensation of at least 100% of the licence fee usually charged by the Photographer for such type of use, without losing any right to claim compensation for other damage (including the right to compensation for all direct and indirect damage and all judicial and extra-judicial costs actually incurred).
13. Licence
13.1 Unless otherwise agreed, the Other Party is not entitled to grant sub-licences to third parties.
13.2 Permission to use a Photographic Work by the Other Party will be granted exclusively in writing/by e-mail in the form of a licence, of which the nature and scope is described by the Photographer in the offer and/or the confirmation of the assignment and/or the relevant invoice.
13.3 Exclusive use must always be agreed explicitly in writing and is not covered by the right to use referred to in Article 10.2.
I3.4 If the scope of the licence is not specified, it will never extend beyond the right to one single use, in original form and for a purpose, circulation and method as intended by the parties at the time they enter into the agreement, in accordance with the Photographer's interpretation.
13.5 The Other Party is not permitted to transfer the right to use described in this article to third parties unless the Photographer has granted written permission in advance.
14. Liability and rights of third parties
14.1 The Photographer is authorised to enter into this Agreement and grant the aforementioned Licence.
14.2 The Photographer is not liable vis-a-vis the Other Party for claims by third parties and/or damage resulting from the use and publication of the Photographer’s Work, except in the event of gross negligence or intent on the part of the Photographer or any third party acting on his behalf.
14.3 The Photographer's liability is, in any event, limited to the invoice amount or, if and insofar related to insured damage, to the amount of the sum actually paid out by the insurance.
14.4 If third parties give notice of, or submit, a claim vis-a-vis the Photographer and/or Other Party with regard to the Work, the Other Party and the Photographer will determine, on the basis of mutual consultation, whether they are going to submit a defence and how.
15. Bankruptcy/Moratorium
The Photographer and the Other Party are each entitled to terminate the agreement with immediate effect if the Other Party becomes bankrupt or is granted a moratorium. In the event of the bankruptcy of the Other Party, the Photographer will have the right to terminate the licence.
16. Choice of law and forum
16.1 All matters governed by these General Terms and Conditions are subject to Dutch law.
16.2 Any dispute concerning the wording and explanation of these General Terms and Conditions and a legal relationship between the Photographer and the Other Party will be brought before the court with relevant jurisdiction in the Netherlands.