General conditions of Buiten-beeld / Pixtura located in Nijkerk, Besselmansgoed 12, 3863 XK. (CoC Gooi- en Eemland nr. 32106023).
In these General Conditions, the following definitions are used:
Photographic work: photographic works as intended in the AW 1912, or other works in the sense of AW 1912, that can be compared to the intended photographic works.
Photo: the (electronically transmitted) digital data file and/or the physical carrier, delivered by Buiten-beeld / Pixtura to the Other party, on which a Photographic Work (whether or not recognizable with the eye) has been stored, like a slide, negative, print, duplicate, Polaroid, floppy disk of any other optical or electro-magnetic carrier.
Buiten-beeld / Pixtura: the user in the sense of 6:231 BW.
Other Party: the Other Party in the sense of art. 6:231 BW.
2. Scope General Conditions
These General Conditions apply to all legal relationships between Buiten-beeld / Pixtura and an Other Party, including quotations, order confirmations and oral or written agreements, also after the agreement has been terminated, unless parties have expressly diverted from these conditions in writing. General Conditions that are used by an Other Party, are at all times emphatically rejected by Buiten-beeld / Pixtura.
Quotations and completely non-binding, unless expressly mentioned otherwise. Buiten-beeld / Pixtura has the right to annul a quotation until two days after the quotation has been offered. The quotation does not imply an obligation to provide a part of the services at a proportional price.
A commission is arranged through the acceptance by the Other Party of the quotation of Buiten-beeld / Pixtura, which acceptance can be shown through the sending by Buiten-beeld / Pixtura to the Other Party of a written confirmation, or in case of the lack thereof, by the factual knowledge and toleration by the Other Party of the execution of activities by Buiten-beeld / Pixtura in accordance with the quotation.
4.1 In the course of the agreement Buiten-beeld / Pixtura has the right to increase the prices.
The other party has the right to cancel the agreement on the date that the price increase will come into effect. In case of an increase of costs facing Buiten-beeld / Pixtura that cannot be charged to the Other Party on the basis of the agreement, and on which Buiten-beeld / Pixtura cannot exert any influence, Buiten-beeld / Pixtura has the right, if a period of three months has elapsed after the start of the agreement, to increase the price. If this increase exceeds 15% of the agreed price, parties can terminate the agreement in question, provided the Other Party reimburse Buiten-beeld / Pixtura for any products or services that have already been provided and/or purchased by Buiten-beeld / Pixtura, without either party being obliged to pay any damages.
4.2 All prices include VAT, unless stated otherwise.
4.3 In case no compensation has been agreed, the compensation that is generally used by Buiten-beeld / Pixtura applies.
4.4 Each delivery, including a delivery of part of a compound assignment, may be billed separately if and when a part of a compound assignment is of value.
4.5 Payment must take place within 30 days of the billing date. After this term, the Other Party is negligent and bound to pay the legal interest, increased with 2%. If the Other Party is negligent or in any other way fails to meet his obligations, including a violation of copyright, he is responsible for all costs - legal and otherwise - involved in gaining satisfaction.
If it is reasonable to assume that Buiten-beeld / Pixtura has incurred higher costs or has had to carry out extra work that was reasonably speaking necessary, these costs and this extra work will be charged to the Other Party.
Disagreement concerning the invoice does not affect any payment obligations.
4.6 The Other Party will pay the amounts he owes to Buiten-beeld / Pixtura without discount or call for compensation, except to balance any down payments that both parties have agreed on that have been made to Buiten-beeld / Pixtura.
5. Publications conflicting with nature preservation
Buiten-beeld / Pixtura reserves the right not to deliver visual material for publications that conflict with nature preservation. This is at the discretion of Buiten-beeld / Pixtura and may be done without prior announcement or justification.
6. Delivery period
If no delivery period has been agreed, it will be set by Buiten-beeld / Pixtura within reason. If Buiten-beeld / Pixtura and the Other Party agree that the delivery period is reduced, Buiten-beeld / Pixtura has the right to increase the originally agreed compensation by at least 50%.
All materials that are made available by may also be made available by Buiten-beeld / Pixtura to third parties. Unless it is expressly agreed otherwise in writing, customer may never claim the exclusive use, in whatever way, of the material used by customer.
From the moment when Buiten-beeld / Pixtura makes material and / or whatever work from a photographer available to the customer, the customer is not allowed to contact the photographer in question directly, or to enter into an agreement with the photographer, or to conduct any kind of business whatsoever with the photographer in question.
Buiten-beeld / Pixtura declares that the intellectual property rights, and in particular the copyrights, of the available material, including photographs, videos, slides and other images and texts, reside with Buiten-beeld / Pixtura. Insofar as the rights referred to above reside with the author or third parties, Buiten-beeld / Pixtura is licensee of the afore-mentioned rights, and has been authorised by the claimant to act against a breach of the claimant's rights, in the broadest sense of the word, and to claim damages.
Based in the copyright, Buiten-beeld / Pixtura only has the right to grant of refuse the multiplication and/or publication of the material that has been sent to customers.
Every use of a Photographic work that has not been agreed will be considered a violation of the copyright of Buiten-beeld / Pixtura. Upon violation, Buiten-beeld / Pixtura, without any right, including the right of restitution of all the direct and indirect damage and extralegal costst, is entitled to at least triple the usual compensation for a use of that kind, with a minimum van € 400,-.
9. Authorisation for publication
If Buiten-beeld / Pixtura sends a customer material, that in no way implies that authorisation has been granted for the publication and/ or multiplication of said material. The right of publication and/ or multiplication is only granted after the agreement with Buiten-beeld / Pixtura has come about and the invoiced amount has been paid in full.
In the case of reprint or reuse the customer is obliged to reapply for permission from Buiten-beeld / Pixtura. Use of the material that has been sent with the permission of Buiten-beeld / Pixtura will be considered a breach of the copyright.
Authorisation for the use of a Photographic Work by the Other Party will only be granted in writing and in advance in the form of a license according to the nature and scope described by Buiten-beeld / Pixtura in the quotation and/or order confirmation and/or the relevant invoice. When the scope of the license has not been determined, it will never exceed the right to one-time usage, conforming to the goal, edition and method the parties intended when they entered the agreement according to the understanding of Buiten-beeld / Pixtura. If authorisation has been granted for the use of electronic or other forms of image manipulation, the result may only be used after express permission from Buiten-beeld / Pixtura. In the absence of a specifically agreed method of publication and/or defined purpose and/or determined edition, only those permissions are deemed to have been granted that of needs flow from the nature and scope of the agreement.
10. Property rights
Photographs remain the property of the photographer in question. Buiten-beeld / Pixtura has the (exclusive) (selling) rights of the photographic work. The Other Party has no right of transfer of the property unless this has been expressly agreed. Unless agreed otherwise, the Other Party has no right to transfer the negatives, or other original recording material, or duplication thereof. The copyright of the Photographic work and the photograph in any case and at all times rests with Buiten-beeld / Pixtura / the photographer in question. No use of the Photographic Work in any way whatsoever is allowed, as long as the Other Party has failed to fulfil an outstanding invoice from Buiten-beeld / Pixtura or in any other way has failed to meet any obligation resulting from the agreement with Buiten-beeld / Pixtura.
For as the customer has failed to reimburse Buiten-beeld / Pixtura for the services/products defined in this agreement, or has failed to compensate damages due to negligence, the goods provided by Buiten-beeld / Pixtura remain the property of Buiten-beeld / Pixtura. Buiten-beeld / Pixtura stays the owner of the items until such moment as the items have been processed or have become the legal property of the customer in any other way. The customer is not allowed to lend or hand over the items mentioned here, before the moment the customer has become owner of the items. In case of damages to items that have not been paid, insurance compensation must be paid out to Buiten-beeld / Pixtura to the amount that the customers still owes Buiten-beeld / Pixtura.
Complaints regarding the work that has been delivered should be addressed in writing to Buiten-beeld / Pixtura as soon as possible, and at any rate within ten working days after delivery of the photograph. Buiten-beeld / Pixtura has the right to substitute the defective work with good work within a reasonable term, unless this were to result in disproportionate damage for the Other Party. Buiten-beeld / Pixtura has no responsibility for complaints that are reported after 10 workdays.
If the edition, the number of purchased copies or the media budget of the Other Party is subject to discussion, and this in part determines the applicable compensation, Buiten-beeld / Pixtura has the right, at its own expense, to have an accountant check the books of the Other Party with regard to this item. When a deviation is established, the Other Party will pay the accountant's costs. In addition, the Other Party will pay the outstanding compensation on the basis of the actual data, after receiving an invoice from Buiten-beeld / Pixtura.
13. Name reference
The name of Buiten-beeld / Pixtura and the photographer in question must be mentioned clearly when a Photographic Work is used, or included in the publication with a reference to the Photographic Work. If a customer fails to comply with this condition, Buiten-beeld / Pixtura is entitled to an additional compensation, without forfeiting any right (including the right to compensation of all direct and indirect damages and all the actual legal and extralegal costs), of at least 100% of the amount in publication rights.
14. Image modification
Modifying images with the use of image processing software is allowed, provided the essence of the photograph remains untouched.
15. Proof copies
When a Photographic Work is published, the Other Party need to forward two copies to Buiten-beeld / Pixtura forthwith and free of charges.
16. Portrait Right
The Other Party who publishes a Photographic Work, is exclusively responsible for obtaining permission of people who have been portrayed and other claimants. Buiten-beeld / Pixtura is obliged to cooperate within its ability in finding the persons referred to in this article.
Buiten-beeld / Pixtura is not responsible for any damage to the Other Party, unless it is the result of gross negligent or intent on the part of Buiten-beeld / Pixtura or persons that have been authorised by Buiten-beeld / Pixtura. Buiten-beeld / Pixtura accepts no responsibility for indirect or derived damage, or loss of profit. The responsibility can never exceed the invoice amount, or the height of the actual compensation in case of and to the extent of any insured damage.
18. It is in no way and under no circumstances allowed to sell images to third parties. Violation of this condition means that Buiten-beeld / Pixtura is entitled to an additional compensation, without forfeiting any right (including the right to compensation of all direct and indirect damages and all the actual legal and extralegal costs), of at least three times the usual compensation for a use of that kind, with a minimum van € 400,-.
19. Orders and alterations
Buiten-beeld / Pixtura has the right to carry out everything that has not been expressly described in an order in accordance with its own technical and creative understanding. Alterations in the order by the Other Party, for what ever reason and during the execution of the order, will be paid for by the Other Party, and will not be carried out by Buiten-beeld / Pixtura after a separate quotation of additional costs has been signed by the Other Party and returned to Buiten-beeld / Pixtura.
In case of cancellation of an order by the Other Party at whatever moment and for whatever reason, Buiten-beeld / Pixtura is entitled to the agreed compensation, minus any costs that have not yet been incurred.
Unless expressly agreed otherwise, Buiten-beeld / Pixtura is free to choose whichever suppliers and third parties whose services Buiten-beeld / Pixtura uses to carry out the order.
22.1 Buiten-beeld / Pixtura accepts no further liability for the activities and delivery of the materials, and no further guarantee other than that which has been provided to the customer in writing, with the exception of gross negligence and/or deliberate intent.
22.2 In so far as liability of Buiten-beeld / Pixtura has to be assumed, it is at all times limited to the insured or reasonably insurable portion. For the non-insured or reasonably non-insurable portion, liability is excluded.
22.3 Buiten-beeld / Pixtura is not liable for functional unsuitability of items and/or services it has provided to the customer. Buiten-beeld / Pixtura is not liable for any inaccuracies with regard to place, kind and identity of the visual material provided by Buiten-beeld / Pixtura.
22.4 If with regard to any damage for which Buiten-beeld / Pixtura, based on these conditions is no liable, but the customer, and consequently Buiten-beeld / Pixtura is held responsible by third parties - including the claimant of the copyright vis-à-vis Buiten-beeld / Pixtura -, the customer will completely safeguard Buiten-beeld / Pixtura in this matter, and reimburse whatever compensation Buiten-beeld / Pixtura has to pay to third parties in accordance with an action agreement that has been made with the permission of the customer, or any irreversible ruling from the highest legal courts or any comparable verdicts.
22.5 If on the part of Buiten-beeld / Pixtura there is a non-attributable shortcoming (force majeure), Buiten-beeld / Pixtura has the right, without legal intervention to terminate the agreement in full or in part, or to have it legally terminated, without being legally bound to pay any damages or honour any guarantee, and the customer is obliged to pay Buiten-beeld / Pixtura for the costs in has incurred in this matter.
22.6 Shortcomings for which Buiten-beeld / Pixtura cannot be held accountable include any circumstance that has come about independently of the will of Buiten-beeld / Pixtura, even i fit could be foreseen at the time the agreement was reached, that temporarily or permanently prevents or delays the execution of the agreement, as well as, insofar it has not been included in the above, riots, epidemics, fire, traffic breakdown, labour strikes, exclusion, loss or damage during transportation, accident or illness of Buiten-beeld / Pixtura staff or other third parties Buiten-beeld / Pixtura uses, import or other governmental restrictions, war, threat of war, civil war, and any other serious disturbance with the company of Buiten-beeld / Pixtura or its suppliers, in any way whatsoever. The above-mentioned listing is purely indicative and not exclusive of other items.
23 Alterations general conditions
23.1 Buiten-beeld / Pixtura in all cases has the right to alter the general conditions. Buiten-beeld / Pixtura will notify the Other Party at least one month before the changes come into effect, by e-mail or letter, regarding the content of the changes. Buiten-beeld / Pixtura will publish the altered conditions on its website at least one month before they come into effect. Parties are bound by the altered condition from the day they come into effect.
23.2 In case the Other Party does not wish to agree with the alteration in the general conditions as published by Buiten-beeld / Pixtura, the Other Party has the right to terminate the agreement in writing within seven workdays after the notification referred to in article 23.1 against the date mentioned in the notification as the date that the altered conditions come into effect.
24. Termination agreement
Both Buiten-beeld / Pixtura and the Other Party have the write to terminate the agreement immediately in case of bankruptcy or suspension of payment of the Other Party.
25. Dutch law
All cases in which these General Conditions apply are subject to Dutch law. Any dispute with regard to the text and interpretation of these General Conditions and a legal relationship between Buiten-beeld / Pixtura and the Other Party will submitted to an authorised judge in the Netherlands.
26. Settlement disputes
All disputes arising from or in connection with this agreement or the way it has been reached, within the confines of the law, will be settled by an authorised judge in the Arrondissement Arnhem.
Deposited at the chamber of commerce Gooi en Eemland 30 august 2007 under number 32106023