TERMS AND CONDITIONS HARM BOUWMAN PHOTOGRAPHY
DEFINITIONS
In these General Terms and Conditions, the following definitions apply:
Aw: Copyright Act 1912 Photographic work: Photographic works as referred to in Article 10 paragraph 1 sub 9 Aw, or other works within the meaning of the Aw, which can be equated with said photographic works. Image carrier: The medium on which a Photographic work (whether or not recognizable) is recorded, such as a slide, negative, print, polaroid, CD-ROM, DVD, or USB stick. Photographer: The user within the meaning of art. 6:231 Dutch Civil Code. Counterparty: The counterparty within the meaning of art. 6:231 Dutch Civil Code. Use: Reproduction and/or disclosure within the meaning of Article 1 in conjunction with 12 and 13 Aw.
APPLICATION
These General Terms and Conditions apply to all legal relationships between a Photographer and a Counterparty, including quotations, order confirmations, and oral or written agreements, even after termination of an agreement, unless the parties have deviated from these conditions in writing and expressly.
QUOTATION
Quotations are entirely without obligation, unless expressly stated otherwise. The Photographer has the right to revoke this offer up to two working days after receiving the acceptance of his offer. The quotation does not obligate the delivery of a part of the performance at a proportional price.
COMPENSATION
4.1 If no compensation has been agreed upon by the parties, the Photographer's customary fee applies.
4.2 If and to the extent that a customary fee cannot be determined, the Photographer will reasonably and fairly determine the fee, taking into account, among other things, (i) the market rates for similar assignments among comparable clients and contractors, with reference to fees charged by the Photographer's colleagues, (ii) what has been legally deemed reasonable and fair in previous cases, (iii) comparative fees charged by photographers in surrounding countries, and (iv) the scope and extent of the use of the work desired by the Counterparty.
4.3 If it is plausible that the Photographer has incurred higher costs and/or performed additional work that was reasonably necessary, these costs and/or additional work will also be eligible for compensation by the Counterparty.
INVOICE AND PAYMENT
5.1 The Counterparty shall check the Photographer's invoice for inaccuracies. If the Counterparty does not reject the invoice in writing with a statement of legally relevant reasons within ten working days of the invoice date and returns it to the Photographer, the relevant invoice will be deemed binding between the parties, and any right of the Counterparty to complain will lapse.
5.2 Payment must be made within thirty days of the invoice date.
5.3 The Counterparty shall make the payments due to the Photographer without any deduction or set-off, except for the settlement of mutually recognized advances provided to the Photographer.
5.4 If the Photographer has not received the amount due within the period referred to in 5.2, the Counterparty is in default and, therefore, liable for statutory interest, increased by 2%.
5.5 If the Counterparty is in default or otherwise fails to fulfill one or more of its obligations, including a breach of copyright, all costs incurred in and out of court to obtain satisfaction will be at the Counterparty's expense.
5.6 No use of the Photographic work in any way is allowed as long as the Counterparty has not paid any outstanding invoices from the Photographer or has not fully complied with any obligation arising from any agreement with the Photographer.
AUDIT
6.1 If the fee is in any way dependent on facts or circumstances that must be evident from the Counterparty's administration, the photographer has the right, after giving notice of the assignment, to audit the Counterparty's administration by an accountant appointed by the photographer.
6.2 In the event that the outcome of the audit deviates by more than 2% from the statement and settlement of the Counterparty, the costs of the audit will be fully borne by the Counterparty. Moreover, the Counterparty will, after invoicing by the Photographer, pay the remuneration based on the actual data.
PROOF COPY
Upon publication of a Photographic work, the Counterparty must immediately and without charge provide the Photographer with a proof copy of the publication.
DELIVERY
8.1 Image carriers are delivered at the premises where the Photographer conducts his business. Shipped image carriers are at the risk of the Counterparty from the moment of shipment until the image carriers have been returned undamaged by the Photographer.
8.2 Digital files with Photographic works are delivered in consultation and in a manner agreed upon by both parties and are at the risk of the Counterparty from the moment of shipment.
8.3 If no delivery time has been agreed upon, it will be determined by the Photographer in reasonableness.
8.4 If the Photographer and the Counterparty agree to advance the delivery time, the Photographer has the right to increase the originally agreed fee by at least 50%.
8.5 Each delivery, including a delivery of a part of a composite assignment, can be invoiced separately if a part of a composite assignment is separately valuable.
COMPLAINTS
Complaints regarding the delivered work must be communicated to the Photographer in writing as soon as possible but no later than ten working days after the delivery of the Photographic works. The Photographer has the right to deliver good work for rejected work within a reasonable period, unless this would lead to disproportionate damage to the Counterparty.
POSSESSION/OWNERSHIP OF IMAGE CARRIERS
10.1 If it has not been agreed that Image carriers remain in the possession of the Counterparty, the Counterparty must promptly arrange for the free return to the Photographer after the agreed use. Non-compliance with this obligation does not result in the loss of any right of the Photographer.
10.2 If Photographic works are delivered as digital files, the Counterparty must promptly erase and/or destroy them after the agreed use and not store them for reuse. Non-compliance with this obligation does not result in the loss of any right of the Photographer.
10.3 If an Image carrier is not 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 Counterparty is obliged to compensate the damage suffered by the photographer.
10.5 Image carriers remain the property of the Photographer. The Counterparty is only entitled to the transfer of ownership if expressly agreed.
SAMPLE SHIPMENTS
11.1 Image carriers provided as sample shipments that are not used must be returned by the Counterparty within ten working days after receipt.
11.2 Digital files with Photographic works received as sample shipments that are not used must be erased or destroyed by the Counterparty within ten working days after receipt.
11.3 If Image carriers and/or digital files with Photographic works are kept for longer than the agreed period, the Counterparty is obliged to compensate the damage suffered by the Photographer.
11.4 The Counterparty is not only obliged to timely return the original image carriers sent to him to the Photographer but also not to retain any duplicate made in any form of the image carriers and/or received digital files with Photographic works and immediately destroy any such duplicate.
2. ASSIGNMENT
12.1 An assignment agreement is an agreement in which the Photographer undertakes to create and/or deliver Photographic works to the Counterparty.
12.2 An assignment agreement is concluded by the Counterparty's acceptance of the Photographer's quotation. This acceptance may also be evidenced by the Photographer sending a written order confirmation to the Counterparty, which is retained by the Counterparty, or in the absence thereof, from the actual knowledge and tolerance of the Counterparty of the Photographer's performance of work in accordance with the quotation.
12.3 The Photographer has the right to carry out, at his own technical and creative discretion, everything not expressly described in an assignment agreement.
12.4 Changes to the assignment by the Counterparty, for any reason whatsoever and during the execution of the assignment agreement, are at the expense of the Counterparty and will only be carried out by the Photographer after a separate quote for additional costs, signed by the Counterparty for approval, has been returned to the Photographer.
12.5 In case of cancellation of an assignment agreement by the Counterparty at any time and for any reason, the Photographer is entitled to the agreed fee, reduced by the costs not yet incurred.
12.6 Unless expressly agreed otherwise, the Photographer is entirely free in the choice of suppliers and third parties with whom the Photographer works to carry out the assignment agreement, including models and stylists.
13. INTERNET
13.1 In the case of agreed use on the internet, the Counterparty will ensure that the dimensions of the Photographic work displayed by it on the internet are not larger than 800 by 600 pixels.
13.2 The Counterparty will not make any other copies of the Photographic works - digitally or otherwise - than those strictly necessary for the agreed use on the internet. After the agreed use, the user will erase or destroy the used (working) copy(ies) of the Photographic work.
13.3 The Counterparty will provide the Photographer with free and unrestricted access to any part of its website where the Photographic work is displayed. If special provisions are required for this, they will be provided to the Photographer.
14. COPYRIGHT
The copyright to the Photographic works rests with the photographer.
15. LICENSE
15.1 Permission for the use of a Photographic work by the Counterparty is granted exclusively in writing and in advance in the form of a license as described by the Photographer in nature and scope in the quotation and/or the order confirmation and/or the corresponding invoice.
15.2 If nothing has been determined regarding the scope of the license, it is never more than the right to use it once, in unchanged form, for a purpose, circulation, and manner as intended by the parties at the conclusion of the agreement according to the understanding of the Photographer.
15.3 In the absence of a specifically agreed manner of publication and/or described purpose and/or described circulation, only those powers are deemed to have been given that are standard included in the license or that necessarily result from the nature and purpose of the agreement.
15.4 If the Photographer has given permission 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 Counterparty is not authorized to grant sublicenses to third parties.
17. COPYRIGHT INFRINGEMENT
17.1 Any use of a Photographic work not agreed upon is considered an infringement of the Photographer's copyright.
17.2 In the case of infringement, the Photographer is entitled to compensation of at least three times the license fee usually charged by the Photographer for such a form of use, without losing any right to compensation for other damages suffered (including the right to compensation for all direct and indirect damages and all actual judicial and extrajudicial costs).
18. ACKNOWLEDGMENT
18.1 The name of the Photographer must be clearly stated with any used Photographic work or 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 compensation of at least 100% of the license fee usually charged by the Photographer, without losing any right to compensation for other damages suffered (including the right to compensation for all direct and indirect damages and all actual judicial and extrajudicial costs).
18.3 When the Counterparty has obtained written permission to reproduce the Photographic work in any form, it is obliged to ensure that the name of the Photographer is affixed to these reproductions. In the case of digital/electronic copies, the Counterparty is also obliged to ensure that the full metadata - as made by the Photographer part of the digital file - are retained; this concerns information according to the EXIF, IPTC, XMP, and ICC standards.
19. PERSONALITY RIGHTS
19.1 The Counterparty will always respect the personality rights of the Photographer in the reproduction and publication of a Photographic work, in accordance with Article 25 paragraph 1 sub c and d Aw.
19.2 In case of violation of these personality rights, the Photographer is entitled to compensation of at least 100% of the license fee usually charged by the Photographer, without losing any right to compensation for other damages suffered (including the right to compensation for all direct and indirect damages and all actual judicial and extrajudicial costs).
20. RIGHTS OF THIRD PARTIES
20.1 The Counterparty that makes a Photographic work public is solely responsible, to the exclusion of others, for obtaining permission from those portrayed and/or other entitled parties. The Counterparty indemnifies the Photographer from all claims in this regard.
20.2 The Photographer is obliged to cooperate to the best of his ability in the detection of the persons referred to in this article.
21. PHOTOGRAPHER'S LIABILITY
The Photographer is not liable for any damage incurred by the Counterparty, unless there is gross negligence or intent on the part of the Photographer or persons engaged by him. In any case, liability is limited to the amount of the invoice amount or, if and insofar as there is insured damage, to the amount actually paid out under the insurance.
22. BANKRUPTCY/SUSPENSION
Both the Photographer and the Counterparty have the right to terminate the agreement immediately in the event of bankruptcy or suspension of payment by the other party. In the event of the Counterparty's bankruptcy, 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 The applicability of the Vienna Sales Convention 1980 (CISG) is excluded.
23.3 Any dispute relating to the text and interpretation of these General Terms and Conditions and a legal relationship between the Photographer and the Counterparty will be submitted to the competent court in the Netherlands. These General Terms and Conditions have been filed with the Amsterdam Court under number [84/2011].