1. Definitions
In these General Terms and Conditions, the following terms shall have the meanings set out below:
General Terms and Conditions: these General Terms and Conditions of DuPho.
- Aw: the Dutch Copyright Act (Auteurswet 1912).
- Photographer: the user of these general terms and conditions within the meaning of art. 6:231 BW.
- Photographic Work/Work: the photographic work created by the Photographer, as referred to in art. 10(1)(9) Aw, or other works within the meaning of the Aw which can be equated with such photographic works.
- Use: reproduction and/or publication of the Photographic Work within the meaning of art. 1 jo. 12 and 13 Aw.
- Licence: the right to Use the Photographic Work.
- Assignment: an agreement for services within the meaning of art. 7:400 BW, concluded between the Client as principal and the Photographer as contractor.
- Client: the other party within the meaning of art. 6:231 BW, being the contracting party of the Photographer. Wherever the masculine form is used in these general terms and conditions, the feminine form shall be deemed to be included.
2. Applicability
These General Terms and Conditions apply to all legal relationships between the Photographer and the Client, including quotations, assignment confirmations and oral or written agreements, also after termination of an agreement, unless the parties have deviated from these terms and conditions in writing and expressly. The applicability of any general terms and conditions of the Client is expressly rejected.
3. Fee
3.1 If the parties have not agreed on a fee, the Photographer shall determine the fee unilaterally and in accordance with reasonableness and fairness, taking into account the work performed, the scope and extent of the Use of the Work desired by the Client.
3.2 Necessary costs and/or additional work must be reimbursed by the Client.
4. Invoicing and payment
4.1 Payment must be made within 14 days of the invoice date.
4.2 If the Photographer has not received the amount due within the period specified in 4.1, the Client will be in breach and therefore liable for interest at the statutory rate plus 2%.
4.3 If the Client is in breach of any of its obligations under the agreement, including any infringement of copyright, the Client will be liable for all judicial and extra-judicial costs incurred by the Photographer when acquiring payment.
4.4 All Use of the Photographic Work, in any shape or form, is prohibited until the Client has paid any of the Photographer’s invoices which might be outstanding.
5. Assignment
5.1 The Client shall notify the Photographer in writing of any specific wishes relevant to the performance of the Assignment, and shall do so in good time before the assignment commences.
5.2 The Photographer shall carry out the Assignment according to its own technical and creative judgement, while endeavouring to accommodate the specific wishes of the Client referred to in the preceding paragraph.
5.3 The Assignment shall at all times be regarded as an obligation of best efforts (inspanningsverbintenis), not an obligation to achieve a result (resultaatsverbintenis).
5.4 Changes to the assignment by the Client for whatever reason, are for the account of the Client and will only be implemented by the Photographer after a separate offer for the additional costs has been signed as approved by the Client and returned to the Photographer.
5.5 In the event of cancellation of an Assignment by the Client, at any time and for whatever reason, the Photographer shall be entitled to the agreed fee, unless otherwise agreed.
5.6 In the event of cancellation by a private Client not acting in the exercise of a profession or business, that Client shall owe the Photographer the costs already incurred and the work already performed.
6. Force majeure
6.1 The Photographer shall not be liable for any failure, or failure in time, to fulfil its obligations as a result of force majeure.
6.2 Force majeure shall be understood to mean, in addition to what is understood by that term in law and case law, any cause originating from outside, whether foreseen or unforeseen, over which the Photographer has no influence and as a result of which the Photographer is unable to fulfil its obligations, including but not limited to illness and temporary or permanent incapacity for work, traffic congestion and delays, fire and theft.
6.3 Force majeure shall also be understood to include technical defects, including but not limited to disruptions at hosting providers, power outages or the failure of third-party software, insofar as these occur despite demonstrably careful technical maintenance and adequate precautionary measures.
6.4 In the event of force majeure, the Photographer shall have the right, in consultation with the Client, to be replaced by a fellow photographer. This substitute shall be designated by the Photographer.
7. Copyright
The copyright of the Photographic Works is owned by the Photographer.
8. Use of the work
8.1 Permission for Use of a Photographic Work by the Client will be granted exclusively in writing and in advance, in the form of a Licence, of which the nature and scope is described by the Photographer in the quotation and/or the confirmation of the assignment and/or the relevant invoice.
8.2 If the scope of the Licence is not specified, it shall be deemed to comprise no more than the right to single use, in unaltered form, for the purpose, print run, duration and manner as the parties intended when entering into the agreement, in accordance with the Photographer’s understanding thereof.
8.3 An exclusive Licence shall not affect the Photographer’s right to use the work for its own portfolio and promotional publications for the benefit of its own practice.
8.4 The Client is not permitted to transfer the Licence described in this article to third parties, except with the prior written consent of the Photographer.
8.5 Unless otherwise agreed, the Client is not authorised to grant sub-licences to third parties.