Terms and Conditions Maaike Ronhaar Photography / Maron Stills
1. Definitions
In these General Terms & Conditions the following terms have the meanings referred to:
Aw: Dutch Copyright Act 1912 [Auteurswet 1912]
Photographic Work: photographic works as referred to in Article 10, section 1, subsection 9 Aw, or other works covered by the Aw that can be equated with the said photographic works.
Maaike Ronhaar Photography / Maron Stills: the user as defined by Book 6, Article 231 of the Dutch Civil Code
Other Party: the Other Party as defined by Book 6, Article 231 of the Dutch Civil Code
Usage: copying and/or publication as defined by Article 1 in conjunction with Articles 12 and 13 of the Aw.
2. Application
These General Terms and Conditions apply to all legal relationships between a Maaike Ronhaar Photography / Maron Stills and Other Party, including offers, confirmations of orders or written agreements, even after the termination of an agreement, unless the parties have explicitly deviated from these Terms and Conditions in writing.
3. Price
3.1 If the parties have not agreed on a price, Maaike Ronhaar Photography / Maron Stills shall charge her usual rate.
If there is no usual rate, Maaike Ronhaar Photography / Maron Stills shall fix the rate in a reasonable and fair way, bearing in mind the rates for similar commissions normally charged in the market between similar customers and similar suppliers, with reference to rates charged by Maaike Ronhaar Photography / Maron Stills’ s colleagues, in what in past cases was by right regarded as reasonable and fair, comparable rates charged by Maaike Ronhaar Photography / Maron Stillss in neighbouring countries, and the scope and extent of the desired usage of the work by the Other Party.
3.2 If it is plausible the Maaike Ronhaar Photography / Maron Stills had to spend more and/or had to carry additional work within reason, then these costs and/or additional work has to be paid by the Other Party.
4. Invoice and payment
4.1 The Other Party shall check if the invoice of Maaike Ronhaar Photography / Maron Stills is accurate. If the Other Party has not rejected the invoice in writing and returned it to Maaike Ronhaar Photography / Maron Stills within ten working days of its date, providing legally relevant reasons for doing so, then the invoice shall be deemed to be binding between the parties and the Other Party loses any right to put in a claim. Payment must be made upon delivery of the photos or if otherwise agreed with the Other Party and mentioned on the invoice.
4.2 If Maaike Ronhaar Photography / Maron Stills has not received the amount due within the period specified in
4.1, the Other Party is in breach and therefore liable for interest at the statutory rate plus 2%.
4.3 If the Other Party is in breach of any of its obligations under the agreement, including any infringement of copyright, then it is liable for all judicial and extra-judicial costs incurred in seeking compensation for the same.
4.4 Any use of the Photographic Work, in any shape or form, is prohibited until the Other Party has paid any outstanding invoice of Maaike Ronhaar Photography / Maron Stills.
5. Complaints
Complaints regarding the Photographic Work supplied must be reported to Maaike Ronhaar Photography / Maron Stills in writing/by e-mail as soon as possible, within a maximum of ten working days of its delivery. Maaike Ronhaar Photography / Maron Stills has the right to substitute the rejected work with good work within a reasonable period, unless this would cause disproportionate damage to the Other Party.
6. Commission
A commission contract is an agreement in which Maaike Ronhaar Photography / Maron Stills undertakes to the Other Party to make and/or supply Photographic Works.
A commission contract becomes binding when the offer of Maaike Ronhaar Photography / Maron Stills is accepted by the Other Party. This acceptance can be confirmed by a written confirmation sent by Maaike Ronhaar Photography / Maron Stills to the Other Party to be retained by the Other Party; or in the absence of the same, by the factual knowledge and permission of the Other Party to the carrying out of the Work by Maaike Ronhaar Photography / Maron Stills in accordance with the offer.
6.1 Maaike Ronhaar Photography / Maron Stills is entitled to carry out work, which is not explicitly described in a commission contract at its own technical and creative discretion.
6.2 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 Maaike Ronhaar Photography / Maron Stills after a separate offer for the additional costs has been signed in agreement by the Other Party and returned to Maaike Ronhaar Photography / Maron Stills.
6.3 In the event of cancellation of a commission contract by the Other Party, at any point in time and for whatever reason, Maaike Ronhaar Photography / Maron Stills is entitled to receive the agreed price.
7. Copyright
7.1 Copyright of the Photographic Works is owned by Maaike Ronhaar Photography / Maron Stills. The Other Party acknowledges that Maaike Ronhaar Photography / Maron Stills is the Author of the Image(s) and also the first and sole owner of all copyrights of the Image(s). The Image(s) and all copyrights remain the exclusive property of Maaike Ronhaar Photography / Maron Stills without limitation.
7.2 Copyright metadata contained within any digital file may not be altered, or removed, without the express consent of Photographer Maaike Ronhaar Photography / Maron Stills.
7.3 Unless otherwise agreed, Maaike Ronhaar Photography / Maron Stills retains the right to use the Image(s) for her self-promotion.
8. Licence
8.1 Permission to use a Photographic Work by the Other Party will be granted exclusively in writing/by e-mail in the form of a licence, of which the nature and scope is described by Maaike Ronhaar Photography / Maron Stills in the offer and/or the confirmation of the commission and/or the relevant invoice.
8.2 If the scope of the licence is not specified, it will never extend beyond the right to one single use, in original form and for a purpose, circulation and method as intended by the parties at the time they enter into the agreement, in accordance with Maaike Ronhaar Photography / Maron Stills's interpretation.
8.3 Exclusive use must always be agreed explicitly in writing and is not covered by the right to use referred to in Article 8.2.
8.4 The Other Party is not permitted to transfer the right to use described in this article to third parties unless Maaike Ronhaar Photography / Maron Stills has granted written permission in advance.
8.5 Unless otherwise agreed, the Other Party is not entitled to grant sub-licences to third parties.
8.6 Photographic Works shot by Maaike Ronhaar Photography / Maron Stills may be used by Maaike Ronhaar Photography / Maron Stills to promote professional activities. For example in the portfolio on Maaike Ronhaar Photography / Maron Stills’s website. Maaike Ronhaar Photography / Maron Stills remains the owner of the Photographic Work made and therefore the Other Party is not allowed to sell the Photographic Work for commercial use without the written permission of Maaike Ronhaar Photography / Maron Stills.
9. Infringement of copyright
9.1 Any unauthorized use of a Photographic Work is deemed to be an infringement of Maaike Ronhaar Photography / Maron Stills’s copyright.
9.2 Any infringement entitles Maaike Ronhaar Photography / Maron Stills to claim compensation of at least three times the licence fee usually charged by Maaike Ronhaar Photography / Maron Stills for such type of use, without losing any right to claim compensation for other damage (including the right to compensation for all direct and indirect damage and all judicial and extra-judicial costs actually incurred).
10. Reference to name and Personality Rights
10.1 The name of Maaike Ronhaar Photography / Maron Stills must be clearly credited alongside the Photographic Work used, or included elsewhere in the publication with reference to the Photographic Work.
10.2 In the event of the copying or publication of a Photographic Work the Other Party will, at all times, observe Maaike Ronhaar Photography / Maron Stills's personality rights in accordance with Article 25, section 1, subsection c and d of the Aw.
10.3 In the event of any infringement of Maaike Ronhaar Photography / Maron Stills's personality rights ex Article 25 of the Copyright Act, including the right to be named, the Other Party will owe compensation of at least 100% of the licence fee usually charged by Maaike Ronhaar Photography / Maron Stills for such type of use, without losing any right to claim compensation for other damage (including the right to compensation for all direct and indirect damage and all judicial and extra-judicial costs actually incurred).
11. Liability and rights of third parties
11.1 Maaike Ronhaar Photography / Maron Stills is authorised to enter into this Agreement and grant the aforementioned Licence.
11.2 Maaike Ronhaar Photography / Maron Stills 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 Maaike Ronhaar Photography / Maron Stills.
11.3 Maaike Ronhaar Photography / Maron Stills's liability is, in any event, limited to the invoice amount or, if and insofar related to insured damage, to the amount of the sum actually paid out by the insurance.
11.4 If third parties give notice of, or submit, a claim vis-à-vis Maaike Ronhaar Photography / Maron Stills and/or Other Party with regard to the Photographic Work, the Other Party and Maaike Ronhaar Photography / Maron Stills will determine, on the basis of mutual consultation, whether they are going to submit a defence and how.
12. Delivery
12. Unless Otherwise agreed the photo files will be delivered by Maaike Ronhaar Photography / Maron Stills via an online gallery. The Other Party is responsible for making a backup of the submitted files. Files are kept for at least one month after the Photographic Work is provided. Unused material cannot be retrieved at a later stage.
13. Bankruptcy/moratorium
Maaike Ronhaar Photography / Maron Stills and the Other Party are each entitled to terminate the agreement with immediate effect if the Other Party becomes bankrupt or is granted a moratorium. In the event of the bankruptcy of the Other Party, Maaike Ronhaar Photography / Maron Stills will have the right to terminate the licence.
14. Choice of law and forum
14.1 These General Terms and Conditions are governed by Dutch law.
14.2 Any dispute concerning the working and explanation of these General Terms and Conditions and a legal relationship between Maaike Ronhaar Photography / Maron Stills and the Other Party will be brought before the courts with relevant jurisdiction in the Netherlands.