TERMS AND CONDITIONS
1 These general terms and conditions apply to all agreements, commissions, offers, and quotations offered by or concluded with the photographer. These conditions may only be deviated from by express written agreement.
2 Unless expressly agreed otherwise in writing, the general terms and conditions of the Buyer do not apply to the relationship between the Buyer and the Photographer or the preceding phase.
3. Formation of the Purchase Agreement
a) Sales agreement between the Photographer and the Buyer is only concluded when the Photographer has expressly accepted an offer from the Buyer in writing.
4. Prices / Costs
a) Unless otherwise stated or agreed, all prices quoted by the Photographer include VAT and other government levies.
b) Costs of shipment, import and export duties, costs of packaging and insurance and costs for photography on location abroad shall be borne by the Buyer unless explicitly agreed otherwise.
c) A statutory increase or decrease in VAT or other government levies may be passed on in the price.
5. Delivery
a) The photographs will be delivered within 1 month of the end of the shoot
unless otherwise agreed.
b) The Buyer shall owe the photographer the full purchase price. The photographs of the relevant assignment will not be sent in high quality until full payment has been received in the manner specified by the photographer in the sales slip.
c) Delivery periods are never to be considered as deadlines unless expressly agreed otherwise.
d) The risk of loss, destruction and/or damage of the photographs passes to the Buyer at the moment of delivery. If the Buyer does not take delivery, all costs incurred by the photographer in connection with the offer and any further costs of transport, safekeeping, insurance and storage shall also be borne by the Buyer. In addition, the Buyer is liable for all damages suffered by the Photographer due to non-acceptance.
e) If the Buyer pledges or attempts to transfer ownership of all or part of the offered services/photographs to a third party before payment in full of the purchase price to the Photographer, the Buyer shall be liable for all damages suffered by the Photographer as a result of non-acceptance,
the Buyer shall owe the Artist an immediately payable penalty in the amount of the part of the purchase price not yet paid to the Photographer, without prejudice to the Photographer's right to full compensation.
f) The risk of loss, destruction and/or damage of photographs which the Buyer hands over to the Photographer for processing or repair remains with the Buyer unless otherwise agreed in writing.
6. Force majeure
a) If the Photographer is unable to meet any of his obligations to the Buyer due to force majeure, such obligation shall be suspended for the duration of the force majeure. If the force majeure condition has continued for six months, both parties shall have the right to dissolve the agreement in whole or in part, without any right to compensation for damages, costs or interest.
b) "Force majeure" includes every circumstance beyond the control of the photographer, even if it could have been foreseen at the time the agreement was made, which permanently or temporarily prevents the performance of the agreement. Force majeure shall in any case include: war or similar situations, riots, sabotage, boycott, strike, occupation, blockade, illness of the artist, shortcomings of transporters, natural disasters, bad weather, lightning strike, flooding, fire, explosion and release of hazardous substances or gases.
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7. Payment
a) Payment must be received by the photographer within 14 days of the invoice date unless otherwise agreed in writing. The photographer is entitled to make partial deliveries and invoice them separately.
b) Complaints about invoices received must be made in writing to the Photographer within 8 days of the date of dispatch or issue of the invoice, failing which the relevant invoice is unconditionally approved by the Buyer.
c) All payments by the Buyer shall be made without any deduction or set-off unless the Buyer's counterclaim against the Photographer has been expressly acknowledged or legally established by the Photographer. The Buyer is not entitled to suspend his payment obligation.
d) The Photographer is entitled to demand advance payment or payment in cash if he sees reason to do so.
e) By the mere expiry of a period of 30 days from the date of invoice, the Buyer, without the need for a notice of default or summons, shall be in default and shall be liable for the amounts owed to the Photographer as of the date of default.
from the date of default interest of 2% per month or per part thereof shall be due immediately. The photographer may furthermore suspend further deliveries until full payment of all amounts due has been received.
f) All costs, both extrajudicial and judicial costs (including all costs associated with legal assistance) that are incurred by the Artist in enforcing its rights towards the Buyer shall be borne by the Buyer. The extrajudicial costs shall be calculated in accordance with the rate of the Netherlands Bar Association, viz:
Over the first EUR 2,949.57 15%
Over the amount up to EUR 5,899.14 10%.
Over the amount up to EUR 14,747.86 8%
Over the amount up to EUR 58,991.43 5%.
Over the amount in excess of EUR 58,991.43 3%.
8. Dissolution after non-payment
If payment is not made within the other term after a reminder, the Photographer is entitled to terminate the agreement in whole or in part by written notice to the Buyer, without prejudice to his right to compensation.
9. Dissolution
a) If the Buyer does not, does not adequately or does not timely fulfill any obligation arising for him from the Purchase Agreement, as well as in the event of bankruptcy or (provisional) suspension of payment of the Buyer, the Buyer will be in default without notice of default being required and the
Artist shall be entitled without judicial intervention:
(i) suspend the performance of the Purchase Agreement until, in the opinion of the Photographer, the fulfillment of this obligation has been sufficiently secured; and/or
(ii) dissolve in whole or in part each of the Purchase Agreements which the Photographer has concluded with the Buyer, all this without prejudice to the Photographer's other rights and without the Photographer being liable for any compensation.
b) In all cases mentioned in the previous paragraph, all claims of the Photographer against the Buyer shall become immediately due and payable in full, and the Photographer shall be entitled to reclaim the relevant unpaid photographs. In such case, the Photographer and his authorised representative(s) shall be entitled to enter the Buyer's premises to take possession of the Photographs in order to allow the Photographer to enforce his rights.
10. Guarantee
a) The Buyer buys the photographs in the condition they are in at the time of purchase. The Buyer must inform himself in advance of the condition of the photographs.
b) The Photographer guarantees the authenticity of the physical prints by means of a certificate of authenticity.
c) The Photographer guarantees the Buyer against damage to the Photographs occurring during a warranty period of 30 days unless the Buyer or a third party is fully or partially liable for the damage on the basis of the law. The Buyer shall in any case be liable for incorrect or injudicious treatment of the photographs by the Buyer or a third party. Damage caused by or resulting from a defect in the framing falls outside the scope of the Photographer's guarantee or liability.
d) Any complaints about non-conformity of the photographs must be made in writing to the photographer within two months after the photographs have been taken or after the damage has occurred, in pain of forfeiture of rights.
e) If a complaint is made in time, correctly and in accordance with and in compliance with all provisions, the obligations of the photographer arising therefrom are as follows:
(i) If in the photographer's reasonable opinion, it is sufficiently proven that the photographs have been damaged and that the photographer is liable for this, the photographer shall have the choice:
(ii) Redeliver the damaged work free of charge against the return
of the damaged work;
(iii) repair the work in question;
(iv) to grant the Buyer a discount on the purchase price to be determined by mutual agreement. By fulfilling any of the foregoing performances, the Photographer shall in respect of his obligations towards the Buyer shall be fully discharged;
f) Before a photograph is sent, it is checked by the Artist and provided with a certificate of authenticity. Should any damage occur during transport and/or shipment from the photographer to the buyer, it will be restored or replaced by the photographer where possible.
restored or replaced.
g) The Photographer guarantees his buyers by providing a certificate of authenticity, stating how many works of art of the same kind are in circulation. Without a certificate of
certificate of authenticity, the work is considered a reproduction and the photographer can in no way be held responsible for any damage to the work.
h) In the event of resale, all warranty obligations of the photographer expire.
i) If the Buyer cannot return the work in the same condition it was in when it was delivered, the Buyer's claims lapse and the Photographer is not obliged to make any restitution.
i) In the event that the Photographer repairs a work, this work remains at the risk of the Buyer. Until such time as the Artist, in accordance with
paragraph 5 of this article, the work remains at the risk of the Buyer.
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11. Exclusion of right of withdrawal
a) The Photographer can exclude the Buyer's right of withdrawal for (customized) products. The exclusion of the right of withdrawal is only valid if the company clearly states this in the offer,
at least in time for the conclusion of the agreement.
b) Exclusion of the right of withdrawal applies to products that have been created by the photographer in accordance with the consumer's specifications and/or are clearly of a personal nature. This includes among other things, customised (paintings) and (decorative) frames that are made to the specific wishes of the client or have become an integral part of the work of art, as well as paintings and/or works of art commissioned by the client. This also includes the printing or (printing) of specific photographs and/or other visual works.
d) Photographs on Aluminium printed by order of the buyer shall not be subject to the right of withdrawal.
e) For Galleries, etc. who proceed to purchase one or more works, a right of withdrawal applies if the photographs and/or prints thereof do not meet the originally desired quality. Valid until 31 days after purchase.
12. Additional Terms and Conditions for Long-Term Subscription Agreement between Photographer and Client
a) Subscription Acceptance: By making the initial payment for the subscription service provided by the Photographer, the Client acknowledges and agrees to be bound by the terms and conditions outlined herein. This agreement constitutes a legally binding contract between the Photographer and the Client.
b) Subscription Duration and Payment: a. The subscription duration shall commence upon receipt of the first payment by the Photographer and shall continue for the agreed-upon period as specified in the subscription plan. b. The Client agrees to make full payment for the subscription service according to the agreed-upon payment schedule for the entire duration of the contract period.
c) Termination and Cancellation: a. Early termination of the subscription contract by the Client shall not relieve the Client of the obligation to make full payment for the remaining subscription period. b. In the event of termination due to breach of contract by either party, the breaching party shall be liable for any outstanding payments as well as any additional damages incurred by the other party. c. The Photographer reserves the right to terminate the subscription contract at any time due to non-payment or violation of the terms and conditions outlined herein.
d) Renewal and Modification: a. Upon expiration of the initial subscription period, the subscription may be renewed for additional terms upon mutual agreement between the Photographer and the Client. b. Any modifications or amendments to the subscription agreement must be made in writing and agreed upon by both parties.
e) Intellectual Property Rights: a. The Client acknowledges that all photographs, images, and other intellectual property created or provided by the Photographer during the subscription period remain the exclusive property of the Photographer, unless otherwise agreed upon in writing. b. The Client is granted a limited, non-exclusive license to use the photographs and images for the purposes outlined in the subscription agreement.
f) Acceptance: By making the initial payment for the subscription service, the Client acknowledges that they have read, understood, and agree to be bound by the terms and conditions of this agreement.
13. Copyright
a) The copyright on the work belongs to the photographer at all times. The copyright on the catalogue, brochures, etc. also belongs to the photographer. The copyright is expressly reserved by the photographer.
b) The Buyer is not permitted to publish and/or reproduce the work he has purchased. The Photographer may consult with the Buyer if the Buyer wishes to publish and/or reproduce the work, for which the Buyer must have written permission from the Artist.
c) In the case of reproduction of a work made by the Photographer without written and provable permission, the Photographer is at all times entitled to claim this work or demand its destruction.
d) On the basis of written permission, galleries etc. may use images and/or photographs for promotional purposes. Depending on the number of such wishes, an amount will be determined which they owe to the photographer unless this contributes to the promotion of the photographer or an exhibition/presentation in which he participates.
14. Due date
a) Unless otherwise stipulated in these conditions, rights of action and other powers of the Buyer in relation to the purchase and sale of the work vis-à-vis the Seller shall lapse in any case one year after the purchase agreement is concluded.
b) Rights and powers for the Buyer under the sales agreement with the Photographer are not transferable.
15. Set-off
Set-off by the Buyer of a claim of the Photographer against a counter-claim against the Photographer is only permitted to the extent that the counter-claim has been explicitly recognised by the Photographer or has been irrevocably established in law.
16. Applicable law
a) Agreements and any other legal relationships between the Buyer and the Photographer shall be governed exclusively by Dutch law, to the exclusion of the Vienna Sales Convention.
b) Disputes between the Buyer and the Photographer shall be settled in the first instance exclusively by the District Court of Zutphen.
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All the above conditions also apply to services supplied or performed by the photographer to clients, buyers and prospective buyers.