General conditions of photography
Article 1. Definitions
In these general terms and conditions, the following definitions shall apply:
- Quotation: all offers by photographer to (legal) persons with whom it is intended to enter into an agreement.
- Agreement: the agreement of assignment between Photographer and Client
- Assignment: the service or product to be provided by the photographer.
- Photographer: Imca van de Weem Photography, KvK52505839 , also user of these general terms and conditions and contractor.
- Client: the (legal) person(s) with whom photographer has entered into the agreement, also the acceptor of these general terms and conditions.
- Cancel: termination or dissolution of the contract.
- Written: electronic communication such as e-mail, provided that the identity of the sender and the authenticity of the communication are sufficiently established. The burden of proof regarding receipt of electronic communications shall at all times lie with the client.
- Use: reproduction and/or disclosure within the meaning of the 1912 Copyright Act
- Aw: 1912 Copyright Act
Article 2. Application
- These general terms and conditions apply to all legal relations between photographer and client, as well as to all quotations, offers and agreements.
- Any terms or conditions set by the client that differ from, or do not appear in, these general terms and conditions are binding on the photographer only if and insofar as they have been expressly accepted in writing by the photographer.
Article 3. Offer
- Photographer makes an offer in the form of a quote or price list.
- Unless otherwise agreed, the offer loses its validity 30 days from the date of dispatch by the photographer.
- Price quotes in offers and quotations may undergo changes due to (unforeseen) change in work or price increase of raw materials. Photographer will notify client as soon as possible.
Article 4. Acceptance of assignment
- Client must explicitly accept the offer in writing. If the client fails to do so, but nevertheless agrees, or at least creates that impression, that photographer is performing work under the agreement, then the offer is considered accepted.
- Photographer reserves the right to refuse an assignment if new information becomes available after acceptance that makes execution unacceptable to Photographer.
- After acceptance, the agreement can only be modified by mutual agreement. In such a case, Photographer is entitled to adjust the price payable for the agreement.
Article 5. Gift Certificates
- Photographer offers personalized gift certificates only.
- Gift certificates are therefore not subject to the right of withdrawal and cannot be returned.
- Gift certificates have a validity period of 1 year from issue date. After this, the value of the gift certificate expires.
- Surplus value of a gift certificate (for example, when the certificate is turned in for a
different type and cheaper photo shoot than listed) will not be refunded upon return of the voucher. However, it is possible to use the remaining credit for future purchases.
Article 6. Implementation of the assignment
- Photographer shall carry out the assignment to the best of his/her knowledge and ability and in accordance with the requirements of good craftsmanship, in the style in which photographer usually works.
- Photographer shall make every effort and will act to the best of his ability in the given and existing circumstances during the photo shoot and/or reportage. Client agrees to make conditions as favorable as possible for photographer and to take measures where necessary, including but not limited to instructing other attendees.
- Photographer delivers the images in her usual style, applying overall image optimization to light, color, contrast and cropping, among others. Hereby, only some post-processing will be done by photographer to remove or reduce existing elements in the photograph, including but not limited to the removal or reduction of disturbing elements in the environment and matters of a temporary nature. Post-processing beyond this is only after consultation with photographer and may incur additional costs.
- Client is obliged to do and omit all that is reasonably necessary and desirable to enable the timely and proper execution of the assignment.
Article 7. Design books, magazine and online promotional materials
- Photo assignments are designed according to photographer’s discretion, skill and style.
- The first draft of a photo album or book will be submitted digitally within 4 weeks after photo selection is made.
- Client will be given a maximum of two opportunities to have changes made to the design. A larger number of changes and/or changes at a later date, are only possible for a fee.
- Two weeks after requested changes, photographer submits new design to client.
- Photographer will not have photo books printed until client has approved the design.
- Once the design phase is underway, or already completed, the purchase of the book cannot be waived.
Article 8. Delivery
- Photographer, unless otherwise agreed, only uses estimated delivery times.
- Online presentation of photo shoots have an estimated delivery time of 21 days, unless otherwise agreed upon.
- Online presentation of weddings have an estimated delivery time of 6 weeks, unless otherwise agreed upon
- The online presentation will remain available free of charge for six months. This period may be extended upon request.
- During the period when the online presentation is available, the possibility exists for client to order products from photographer.
- Ordering products through the online ordering module creates an agreement between client and a professional photo lab, to which photographer is not a party.
- From the moment photos are available online, client has 1 opportunity within 14 days to indicate which photos client would like to receive also in black and white.
- Photo books, unless otherwise agreed, will be delivered 8 weeks after payment of the invoice. Delivery time may depend on the chosen material.
- In the case of wedding photography, digital photo files will also be delivered to client in jpg format on USB stick no later than four weeks after they are made available online. In the case of business agreements, digital files are delivered by mutual agreement. In the case of all other photo shoots, it is possible to purchase the digital files in low resolution but not in high resolution. Prints or prints on any material can be obtained through the photographer at all times.
- Photographer will give advance notice of products with longer lead times. The estimated delivery time of these products will be communicated to client by email.
- Delivery will not be made until payment for the relevant service, files or product has been received.
- Delivery, unless otherwise agreed, shall be by regular mail.
- RAW files will not be delivered (see also Clause 13.9)
Article 9. Reimbursement
- If no fee is agreed upon by the parties, the photographer’s customary fee shall apply.
- If one cannot speak of a customary fee, Photographer shall charge a reasonable and fair fee for the work delivered.
- If it is plausible that photographer has incurred higher costs and/or performed additional work, which were reasonably necessary, photographer will pass this on to the client.
- The final fee will be based on work performed and expenses incurred on an after-the-fact basis taking into account the agreed hourly rate and other customarily applied prices.
- All amounts quoted by photographer are exclusive of VAT, unless otherwise agreed upon.
Article 10. Payment terms
- Photographer will send an (electronic) invoice to the client for the amount owed by the client, unless otherwise agreed.
- At least 25% of the total amount is required as a deposit and will have to be paid prior to the assignment, unless otherwise agreed upon.
- Unless otherwise agreed, the payment term is 14 days from the invoice date.
Article 11. Cancellation and suspension
- If an invoice is not paid within the term of payment, the photographer may, after notifying the client, suspend all her work on behalf of the client until the amount of the invoice is paid.
- If the client fails to provide the necessary information in time for the execution of the order or fails to be present (in time) while it is necessary for the execution of the order, the photographer is entitled to suspend or terminate the agreement.
- Suspension or dissolution of the agreement shall be in writing.
- In case of cancellation of the confirmation of assignment within 7 days of the scheduled assignment by the client, photographer will charge 50% of the agreed total price.
- In case of serious circumstances which make it impossible for photographer to carry out the assignment himself on the agreed date, photographer will, if necessary, arrange for a substitute photographer, or if possible agree on a new date.
- If due to justifiable circumstances, including but not limited to illness and extreme weather conditions, it is impossible to execute the assignment on the agreed date, a new date will be agreed upon by mutual consent no more than three times.
- Payment obligation also applies if client does not wish to use the work or products produced under the agreement.
- If an invoice is not paid within the payment period, legal interest is due on the outstanding invoice amount without further notice of default by photographer.
Article 12. Complaints
- Complaints about the performance of the agreement and/or objections to an invoice must be submitted in writing to the photographer no later than 7 days after receipt of the photo files.
- Complaints after the deadline mentioned in paragraph 1 will not be considered.
- Submitted complaints or objections do not suspend the payment obligation.
Article 13. Copyright
- Each agreement shall include the license described in this article with respect to Photographer’s photographic work, if not otherwise agreed.
- Copyright and other intellectual property rights to all works developed as part of the assignment are held by the photographer, Imca van de Weem.
- Photographer reserves the right to use the works for their own promotional purposes and publications, including, but not limited to, website and weblog, portfolio, advertisements, social media, magazine articles, in print, trade show materials and demonstration materials. However, never without the explicit consent of the client.
- Client is not entitled to reproduce the work unless otherwise agreed.
- Client is expressly not entitled to use or trade the photographs for business or commercial purposes, or at least for other purposes outside the domestic circle, without prior permission from photographer.
- Unless otherwise agreed, Client is not authorized to grant sublicenses to third parties, nor to transfer its own license.
- Client must request written permission to submit a photograph for the purpose of contests and third-party publications.
- Client shall observe the photographer’s personality rights, including the obligation to mention his name, as stated in Section 25 Aw.
- Digital or analog editing or modification of the delivered works is not allowed without prior written consent of photographer.
- Any use of a work by Imca van de Weem, the photographer, that has not been agreed upon is considered an infringement of the photographer’s copyright.
- In case of infringement of the copyrights and/or personality rights of Imca van de Weem/ photographer, Imca van de Weem charges three times the usual license fee for such a case, as compensation for the damage suffered.
- Compensation does not entitle you to further use of the photographer’s work.
Article 14. Portrait rights
- Photographer reserves the right to use the works for his own promotional purposes and publications, including, but not limited to, website and weblog, portfolio, advertisements, social media, magazine articles, in print, trade show materials, unless otherwise agreed upon. However, never without the explicit consent of the client. This in accordance with the provisions AVG legislation 2020.
- Photographer reserves the right to license the works to third parties for promotion. However, never without the explicit consent of the client.
- Objections to disclosure of portraits must be made known to photographer in writing prior to the agreement. Permission to publish works is also recorded by both parties in a written statement of portrait rights.
- Differing agreements are also recorded in writing.
- Client, by giving the assignment, automatically gives permission to the photographer to save the digital files on any medium. All saved files will not be accessible to third parties and will be stored under the most secure conditions. This is entirely in accordance with the provisions of the 2020 AVG legislation.
Article 15. Liability
- Photographer is not liable for any damages incurred by the client unless there is intent or gross negligence on the part of the photographer or his representatives.
- Photographer is not liable for color variations on non-calibrated monitors or prints not supplied by photographer.
- Liability is limited to the amount of the invoice amount.
Article 16. Amendments to these terms and conditions
- Photographer reserves the right to amend or supplement these terms and conditions.
- Changes will be communicated to the client by photographer in a timely manner and in writing.
- If the client does not wish to accept a proposed change, he may, until the date on which the new general terms and conditions come into force, terminate the agreement by this date.
Article 17. Other provisions
- If any provision of the agreement and/or the general terms and conditions is found to be void or voidable, the remaining provisions and the agreement shall remain in force.
- All legal relations between Imca van de Weem Photography and client are governed by Dutch law.