GENERAL TERMS & CONDITIONS ADH SPORTPHOTO
ADH Sportfoto: These General Terms and Conditions apply to all legal relationships between ADH Sportfoto and Other Party. ADH Sportfoto is further referred to as Photographer in these General Terms and Conditions.
Other Party: The client or assignee of ADH Sportfoto, whether or not acting in the exercise of a profession or business, that has concluded an Agreement with ADH Sportfoto or to whom ADH Sportfoto has granted a License, made a quotation, or made an offer.
In these General Terms & Conditions, the following terms have the meanings referred to:
Aw: Author Law 1912 [Copyright]
Author's rights: The exclusive right of the creator of a work within the meaning of Article 1 Aw.
BW: Dutch Civil Code.
Terms and Conditions: The present terms and conditions that apply to all Agreements between the Photographer and the Other Party.
Photographer: The creator of a Photographic Work and user within the meaning of Article 6: 231 BW.
Photo: The Photograph produced by the Photographer.
Photographic Work: 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.
Other Party: The other party as defined by Book 6, Article 231 of the Dutch Civil Code.
Agreement: The contract of assignment concluded between the Photographer and the Other Party pursuant to Article 7: 400 of the Dutch Civil Code, which may or may not be established by means of an order confirmation or an approved quotation.
Usage: The use of the Photographic work within the meaning of Article 1 jo. 12 and 13 Aw.
License: Permission to may use the Photographic Work under certain conditions from the Photographer.
Article 1. Applicability
1.1 These General Terms and Conditions apply to all quotations, order confirmations, and Agreements of the Photographer, even after the termination of an agreement, unless the parties have explicitly deviated from these conditions in writing.
1.2 General terms and conditions of the Other Party do not apply unless explicitly accepted in writing by the Photographer.
1.3 Changes or deviations from these General Terms and Conditions are only effective insofar as they have been explicitly agreed in writing between the Photographer and Other Party.
1.4 If a clause of these General Terms and Conditions should appear to be in full or partial conflict with mandatory law, the remaining provision of these General Terms and Conditions will remain in full force. For the invalid clause, the parties will determine in consultation a new provision that corresponds as closely as possible to the purport of the invalid provision.
Article 2. Assignment
2.1 The photographer is entitled to carry out work that is not explicitly described in a commission contract at its own technical and creative discretion.
2.2 Changes to the commission by the Other Party for whatever reason, are for the account of the Other Party and will only be implemented by the Photographer after a separate offer for the additional costs has been signed as approved by the Other Party and returned to the Photographer. Tacit acceptance of the change is excluded
2.3 If during the execution of the Agreement it appears that, in the Photographer's own opinion, it is necessary for the proper execution of the Agreement to change or supplement the work to be performed, then the parties will adjust the Agreement accordingly in mutual consultation whereby the Photographer is entitled to additional compensation.
Article 3. Cancellation
3.1 In the event of cancellation of a commission contract by the Other Party, at any point in time and for whatever reason, the Photographer will be entitled to the agreed payment. In the event of cancellation, a non-professional client will only owe a reasonably determined part of the payment, bearing in mind the work already performed.
3.2 If the Other Party terminates the Agreement within 24 hours after it has been concluded and the Photographer has not yet started the work, the Other Party is not obliged to pay the agreed fee.
3.4 An Agreement for which the Photographer must immediately perform work cannot be terminated.
3.5 Both the Other Party and the Photographer have the right to immediately terminate the Agreement in the event of bankruptcy or suspension of payment of the other party.
Article 4. Duration of Agreement
4.1 The Agreement ends legally after the photo has been delivered unless the parties have agreed otherwise. If the parties have agreed on a term for the delivery of the Photo, this is never a strict deadline.
Article 5. Complaints
5.1 Complaints regarding the Photographic Work supplied should be reported to the Photographer in writing as soon as possible, within a maximum of 10 days of its delivery. After this period has expired, the Other Party can no longer invoke non-compliance with the Agreement by the Photographer and the rights associated with it will lapse.
Article 6. Copyright and right of use
6.1 The copyright to the photographic works is owned by the photographer.
6.2. The license to use a Photographic work is granted in writing only by the photographer. If the Agreement has not been concluded in writing or if the Agreement does not further specify the License, the Other Party will not acquire more than a one-off non-exclusive License for the purpose, manner and edition that the parties had in mind when entering into the agreement.
6.3 An exclusive License can only be agreed by deed and is not covered by the right to use referred to in Article 6.2
6.4. The license is granted on the condition of timely and full payment of the invoice. If the Other Party fails to pay the Photographer's invoice in full and on time, the License will lapse retroactively. All disclosures and/or reproductions already made by or on behalf of the Other Party will then be regarded as an infringement of the Photographer's copyright and must be discontinued from the day after the due date of the invoice. From the day after the due date of the invoice, the Other Party is liable to pay compensation to the Photographer as described in Article 6.6 of these General Terms and Conditions.
6.5. Any disclosure of the Photo by or on behalf of the Other Party that is not covered by the License, is considered an infringement of copyright as a result of which the Other Party is liable to pay compensation to the Photographer as described in 6.6 of these General Terms and Conditions.
6.6. In the event of copyright infringement, the Other Party owes the Photographer at least a compensation amounting to three times (300%) the agreed or customary license fee for such a form of use, without prejudice to the Photographer's right to compensation according to the law.
6.7 The Other Party is not permitted to transfer the license to third parties and not entitled to grant sub-licenses to third parties unless the Photographer has granted written permission in advance.
6.8 In the event of liquidation, bankruptcy, or suspension of payment of the Other Party, the Photographer has the right to terminate the agreement with immediate effect and to withdraw the License, unless the parties agree otherwise in writing.
6.9 Termination of the Agreement does not affect the granted License and the associated rights and obligations unless the Agreement has been terminated on the basis of the provisions of 6.8 of these General Terms and Conditions.
Article 7. Personality rights
7.1 When publishing and/or reproducing the Photo, the Other Party will observe the personality rights of Article 25 Aw.
7.2 The Other Party is always obliged to clearly state the name of the Photographer when using the Photo or to include it in the publication with reference to the Photographic Work.
7.3 For each infringement of the personality rights accruing to the Photographer under Article 25 Aw, including the right to mention the name, the Other Party is obliged to pay compensation of at least 100% of the license fee customarily used by the Photographer.
Article 8. Compensation
8.1. If the photographer and the other party have not agreed to a fee, the photographer will unilaterally determine his usual fee, taking into account the size and scope for the desired Usage by the Other Party. The costs and/or additional work must be reimbursed by the Other Party.
Article 9. Invoicing and payment
9.1 Invoicing can take place from the moment of delivery of the Photo.
9.2 Payment must be made within 14 days of the invoice date unless the invoice states otherwise.
9.3 The Other Party is not entitled to suspend the payment obligation.
9.4 If the Other Party does not make use of the License, does this not release the Other Party from its payment obligation.
9.5 No use of the Photographic Work in any way whatsoever is permitted if the Other Party has not yet paid any outstanding invoice for which the payment term has expired.
9.6 In the event of late payment, the Other Party owes statutory interest, calculated from the first day after the expiry of the payment term. In the event of late payment, the Other Party will also owe extrajudicial collection costs of at least 15% of the principal, with a minimum of € 75.00.
9.7 In the event of liquidation, bankruptcy, or suspension of payment of the Other Party, the Photographer's claims are immediately due and payable.
Article 10. Liability
10.1 The Photographer is not liable vis-à-vis the Other Party for claims by third parties and/or damage resulting from the use and publication of the Photographic work, except in the event of gross negligence or intent on the part of the Photographer.
10.2 Without prejudice to the provisions of Article 10.1, the Photographer's liability is at all times limited to the amount of the invoice. The Photographer explicitly excludes any further compensation for damage and claims.
10.3 If third parties announce or submit a claim against the Photographer and/or the Other Party with regard to the disclosure of the Photographic Work, the Photographer, and the Other Party will determine in mutual consultation whether they will put up a defense and how this will be done.
Article 11. Choice of law and forum
11.1 Dutch law applies to these General Terms and Conditions to all Agreements.
11.2. Any dispute concerning the wording and explanation of these General Terms and Conditions and a legal relationship between the Photographer and the Other Party shall be brought before the court with relevant jurisdiction in the Netherlands.