1. Definitions
In these General Terms and Conditions the following terms shall have the following meanings: 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 the said photographic works.
Photographer: the user as defined in Article 6:231 of the Dutch Civil Code.
Other party: the other party as defined in Article 6:231 of the Dutch Civil Code.
Use: reproduction and/or publication as defined in Article 1 in conjunction with Articles 12 and 13 Aw.
2. Applicability
2.1 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 the termination of an agreement, unless the parties have expressly deviated from these conditions in writing.
2.2 By accepting the quotation / price estimate and awarding the assignment to Captured by Babette, the client agrees to the general terms and conditions as described on this page.
3. Compensation
3.1 If the parties have not agreed on compensation, the Photographer shall determine the compensation unilaterally and in good faith, taking into account the size and scope of the desired use of the work by the Other Party.
3.2 Necessary costs and/or additional work shall be reimbursed by the Other Party. If additional work (and/or necessary extra costs) is involved, this shall be discussed with the Other Party in a timely manner and the compensation shall be coordinated for approval.
4. Invoice 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 referred to in 4.1,
the Other Party shall be liable to pay the statutory interest plus 2% on the invoice amount.
4.3 If the Other Party is in default or has otherwise failed to fulfil one or more of its obligations, including copyright infringement, all costs incurred by the Photographer in obtaining satisfaction, both in and out of court, shall be borne by the Other Party.
4.4 No use of the Photographic Work in any manner whatsoever is permitted until the Other Party has paid any outstanding invoice from the Photographer.
5. Complaints
Complaints regarding the work delivered must be communicated to the Photographer in writing/by email as soon as possible, but in any case within ten business days of delivery of the Photographic Works. The Photographer reserves the right to replace rejected work with good work within a reasonable period, unless this would result in disproportionate damage to the Other Party.
6. Assignment
6.1 The Photographer has the right to carry out anything not expressly described in an assignment agreement at his own technical and creative insight.
6.2 Changes to the assignment by the Other Party for whatever reason, shall be borne by the Other Party and will only be carried out by the Photographer after a separate quotation for additional costs has been signed for approval by the Other Party and returned to the Photographer.
6.3 In the event of cancellation of an assignment agreement by the Other Party at any time and for whatever reason, the Photographer is entitled to the agreed fee. In the event of cancellation, the non-professional client is only liable for a reasonable portion of the fee, taking into account the work already carried out.
7. Copyright
The copyright of the Photographic Works rests with the photographer.
8. License + use of images / photos
8.1 Permission for use of a Photographic Work by the Other Party is granted exclusively in writing/by e-mail and in advance in the form of a license as described by the Photographer in terms of nature and scope in the quotation and/or the order confirmation and/or the relevant invoice.
8.2 If nothing has been specified regarding the scope of the license, it applies that it will never include more than the right to one-time use, in unaltered form, 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 understanding.
8.3 Exclusive exploitation must always be explicitly agreed in writing and does not fall under the exploitation right referred to in Article 8.2.
8.4 The Other Party is not permitted to transfer the exploitation right described in this Article to third parties without the prior written consent of the Photographer.
8.5 Unless otherwise agreed, the Other Party is not authorized to grant sublicenses to third parties.
8.6 Unless otherwise agreed prior to the assignment, the Photographer reserves the right to use the photographic material for their own expressions. This will be handled with care, and only images representative of the Photographer will be used for online and offline applications. Explicit permission from the Other Party is not required for this.
9. Copyright Infringement
9.1 Any use of a Photographic Work that has not been agreed upon is considered to be an infringement of the Photographer’s copyright.
9.2 In the event of any infringement, the Photographer is entitled to compensation of at least three times the license fee usually charged by the Photographer for such type 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).
10. Attribution and Personal Rights
10.1 The name of the Photographer must be clearly stated alongside any Photographic Work used, or included in the publication with a reference to the Photographic Work.
10.2 The Other Party shall at all times respect the personal rights of the Photographer in accordance with Article 25, paragraph 1, subsection 1 of the Copyright Act when reproducing or publishing a Photographic Work.
10.3 For any infringement of the personal rights to which the Photographer is entitled under Article 25 of the Copyright Act, including the right to attribution, the Other Party shall be liable to pay 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).
11. Liability and rights of third parties
11.1 The Photographer is authorised to enter into this Agreement and to grant the aforementioned License.
11.2 The Photographer shall not be liable to the Other Party for claims by third parties and/or for damages resulting from the exploitation and publication of the Work, unless in the event of gross negligence or intent on the part of the Photographer.
11.3 The Photographer’s liability is in any event limited to the amount of the invoice or, if and to the extent that damage is insured, to the amount of the sum actually paid out under the insurance.
11.4 If third parties announce or initiate a claim against the Photographer and/or Other Party with regard to the Work, the Other Party and the Photographer shall determine by mutual agreement whether and how they shall defend themselves against the claim.
12. Bankruptcy/Suspension of Payments
Both the Photographer and the Other Party have the right to immediately terminate the agreement in the event of bankruptcy or suspension of payments of the other party. In the event of bankruptcy of the Other Party, the Photographer has the right to terminate the license granted.
13. Choice of law and forum
13.1 All cases in which these General Terms and Conditions apply are governed by Dutch law.
13.2 Any dispute relating to the text and interpretation of these General Terms and Conditions and a legal relationship between the Photographer and the Other Party shall be submitted to the competent court in the Netherlands.
