1. In these General Conditions the following are taken to mean:
Photographic work:
Photographic works as referred to in the 1912 Dutch Copyright Act,
or other
works in the sense of the 1912 Dutch Copyright Act which can be equated
with the said photographic
works.
Photograph:
The physical carrier delivered by the Photographer to the Counter Party,
on which a
Photographic work has been laid down (whether or not perceivable by
eye), such as a transparency,
print, duplicate, polaroid or floppy-disk.
Photographer:
The user in the sense of article 6:231 of the Dutch Civil Code
Counter Party:
The Counter Party in the sense of article6:231 of the Dutch Civil Code.
3. Offers are entirely without obligation, unless the contrary is expressly
stated. The Photographer has
the right, up to two days after receipt of the acceptance of his offer,
to withdraw this offer. The offer
does not impose an obligation to deliver a part of the performance
in return for a proportional price.
4. If no payment has been agreed upon, then the usual payment for the
photographer is applicable. If
one cannot speak of a usual payment, then at least the Guide Prices
of the Federation of
Photographers (the most recent version which is filed with the District
Court in Amsterdam) are
applicable and these constitute a part of these General Conditions.
Three months after the agreement
has been concluded the Photographer has the right to pass interim changes
to the Guide Prices on to
the Counter Party.
5. Photographs are delivered in the building where the Photographer
carrieson his business.
Photographs which are sent are at the risk of the Counter Party from
the moment of dispatch up to the
moment that the Photographs are received back undamaged by the Photographer.
6. If no delivery term has been agreed upon, this will be determined
in reason by the Photographer. If
the Photographer and the Counter Party agree that the delivery term
be advanced, the Photographer
has the right to increase the original payment by at least 50%.
7. If it has not been agreed that the Photograph remains in the possession
of the Counter Party, the
latter must return this immediately after use free of charge to the
Photographer. Non-performance or
non-timely performance of this obligation does not lead to the loss
of any rights of the Photographer.
Articles 24 to 27 of Section C are applicable mutatis mutandis.
8. Photographs remain the property of the Photographer. The Counter
Party only has the right to
transfer of the title if that has been expressly agreed or if this
is evidenced by the nature of the
agreement. Unless agreement to the contrary is made, the Counter Party
has no rights to transfer of
negatives or other original exposed material, or duplicates thereof.
The title to the Photographs shall in
any event remain that of the
Photographer and no use whatsoever may be made of the Photographic
Work in any manner
whatsoever as long as the Counter Party has not complied with any obligation
whatsoever which arises
from any agreement whatsoever with the Photographer.
9. Complaints must be notified to the Photographer in writing as quickly
as possible, but in any event
within ten working days after delivery. The Photographer has the right
to deliver good work after all to
replace work which has been rejected within a reasonable term, unless
this would lead to unreasonable
damages for the Counter Party.
10. All deliveries, including a delivery of a part of a composite order,
may be invoiced separately if a
part of the composite order is of value as an individual part.
11. Payment must be made within 30 days after the invoice date. After
this term has expired the
Counter Party shall be in default and shall owe the statutory interest
plus 2%. If the Counter Party is in
default or if he fails in another manner in the performance one or
more of his obligations, including
infringement of copyright, then all reasonable costs for obtaining
payment outside of court shall be for
his account. The Counter Party shall in any event owe:
- on the first Dfl. 6,500.00: 15% with a minimum of Dfl. 500,--;
- on the next amount up to Dfl. 13000,00: 10%;
- on the next amount up to Dfl. 32500,00: 8%;
- on the next amount up to Dfl. 130000,00: 5%;
- on the next amount: 3%
If it is plausible that the Photographer has incurred higher costs,
which were reasonably necessary,
these are also eligible for reimbursement.
12. If the circulation of a publication is under discussion and if this
partly determines the applicable
payment, the Photographer has the right to have the accounts of the
Counter Party checked on this
point by an accountant who is recognized by NOVAA. If differences are
found the costs of the
accountant are for the account of the Counter Party.
13. The Counter Party shall make the payments owed to the Photographer
without any deductions or
any claims invoking set-off of debts, except for set-off against advances
which are subject to set-off
which he has given to the photographer.
14. If permission for the use of a Photographic work is granted, this
only includes the right for a
once-only use, in an unchanged form, for the benefit of a purpose,
circulation and manner such as the
parties intended when the agreement was concluded. If permission has
been given for use in electronic
or other forms of image manipulation, the result may only be used following
express permission from
the Photographer. In the absence of a specific agreed manner of publication
and/or described purpose
and/or circulation, then only those powers which necessarily result
from the nature and scope of the
agreement are deemed to have been given.
15. All use of a Photograph which has not been agreed upon is considered
as an infringement of the
copyright of the Photographer. In the event of infringement the Photographer
is entitled, without for the
rest losing any rights, including the right to compensation of damages,
to compensation amounting to at
least three times the usual payment for the Photographer for such a
form of use, with a minimum of
Dfl. 500.00.
16. The name of the Photographer must be stated clearly alongside a
Photograph which is used, or
must be included in the publication with a reference to the Photograph.
In the event of non-compliance
with this condition, the Photographer shall be entitled to an extra
payment, without for the rest losing
any right (including the right to compensation of damages), of at least
100% of the amount owed for
publication rights.
17. When a Photographic work is published the Counter Party must immediately,
and at no charge,
send an example of the publication as evidence to the Photographer.
18. The Counter Party, or any third party who publishes a Photographic
Work, is responsible to the
exclusion of others for obtaining permission of persons who are portrayed
and other entitled parties.
The Photographer is obliged to cooperate, to the extent that he is
able, in tracing the persons referred
to in this article.
19. The Photographer is not liable for damages which have arisen for
the Counter Party, unless there is
a case of crass fault or purposeful action on the side of the Photographer
or the persons he has
engaged. The liability is in any event limited to the size of the invoice
amount.
20. Both the Photographer and the Counter Party have the right to immediately
terminate the
agreement in the case of bankruptcy or a moratorium of payments of
the other party.
21. All cases in which these General Conditions are applicable are governed by Dutch law.
Section B - commisions
22. The Photographer has the right to implement all things which have
not been explicitly described in a
commission according to his own technical and creative insight.
23. If a commission is cancelled, the Photographer is entitled to the
agreed payment, less the costs
which have not yet been incurred.
24. Photographs which have been made available as a consignment forinspection
and which are not
used must be returned by the Counter Party within ten working days.
Photographs which are used
must be returned by the Counter Party within three months after receipt.
If Photographs are kept for
longer than the agreed period, then at least the following amounts
are due per day:
Dfl. 2.50 for each print or each duplicate,
Dfl. 10.00 for each polaroid photograph, each transparency or negative.
25. Repair costs may be charged up to an amount of:
a. Dfl. 90.00 if the number, the code or other information on the back
of a Photograph or on the cover
of a transparency have become illegible or have disappeared during
the loan;
b. Dfl. 45.00 if a transparency has not been chosen for publication
but has been taken out of its cover.
26. If a Photograph has not been returned to the Photographer within
fourweeks after the agreed term
(including the term referred to in article 24), it shall be considered
as having been lost.
27. In the event of loss of or damage to a Photograph a payment shall
be due amounting to: a minimum
of Dfl. 1,500.00 for a transparency, negative or polaroid photograph;
a minimum of Dfl. 200.00 for a
print or a duplicate.
Damage is also taken to mean the making of notes or reproduction indications
on Photographs.
These general conditions have been filed at the district court in Amsterdam under number 163/1992