Article 1 – Definitions
- Eric Elenbaas Agency: the private limited liability company, having its registered office in Amsterdam and trading under the names of Eric Elenbaas Agency (from hence on forward noted as EEA) and also serving as the Creative’s representative;
- Creative: the maker, photographer, illustrator or motion-design, director, concept designer, styling artist who is represented by EEA;
- Client: the natural person or legal entity that commissions EEA and/or the Creative to perform engagements or with which EEA has concluded an agreement;
- End Product: all tangible and intangible objects, including – but not limited to – provisional and/or final designs, sketches, drawings, models, work drawings, detailed drawings, photographic products, formats, texts, slogans, catchphrases, campaigns, advertising campaigns, film productions, musical pieces, products created using computer- aided manipulation and/or editing, voices, sounds and effects, and the carriers on which such objects are recorded, such as slides, photo negatives, Polaroid photographs, CDs or digital files, whether or not supplied to the Client by EEA as interim, partial or end results of the activities performed under the engagement;
- Reference Materials: All objects, persons, information and data that the Client provides to EEA and/or the Creative for purposes of carrying out the engagement;
- Other Party: the other party as defined by Book 6, Article 231 of the Dutch Civil Code.
- Aw: Auteurswet 1912 (Dutch Copywright Act of 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.
- Usage: copying and/or publication as defined by Article 1 in conjunction with Articles 12 and 13 of the Aw.
Article 2 – Applicability of these Terms & Conditions
- These Terms & Conditions govern all agreements between EEA and/or the Creative and the Client, unless EEA explicitly waives their applicability in writing.
- These Terms & Conditions govern all agreements between EEA and Other Party, including offers, confirmations of orders and oral or written agreements, even after the termination of the of an agreement, unless the parties have explicitly deviated from these Terms and Conditions in writing.
- EEA explicitly rejects the applicability of any terms and conditions of the Client/Other Party.
- EEA explicitly rejects the applicability of any terms and conditions of independent Creative’s represented by another agency or working independently.
- EEA explicitly rejects the applicability of any terms and conditions of Third Parties hired for by EEA.
- EEA explicitly rejects the applicability of any terms and conditions of other Representatives/Agencies.
Article 3 – Quotes and Agreement and Prices
- All quotes provided for by EEA are strictly non-binding. Agreements are not deemed to have been concluded until the Client has received a written order confirmation from EEA (E-mails being considered to constitute written order confirmations) or if the agreement has been signed by both parties.
- If the parties have not agreed on a price, then the Creative represented by EEA shall charge the usual rates.
- If it is plausible that the Creative represented by EEA had to spend more and/or had to carry out additional work within reason, then these costs and/or additional work shall also be payable by the Other Party/Client.
- EEA considers an eight hour working day to be a full day. Overtime shall be payable by the Other Party on top of the dayrate agreed on by EEA and the Other Party/Client.
- All prices stated in quotes, Order Confirmations and Agreements are denominated in Euros and are stated net of VAT.
- The prices are based in part on costs as at the moment that they were calculated. EEA is entitled to charge any increases in prevailing costs and/or fluctuations in exchange rates for foreign currencies to the Client, both before and after the Agreement is concluded. If such price changes occur, the Client is not entitled to demand that the Agreement be dissolved, unless reliance on this clause is unreasonable or unfair. If the Agreement is dissolved on such grounds, the Client must at the minimum reimburse the costs already incurred by EEA (both internal costs, based on EEA’s calculations, and external costs).
Article 4 – Engagements
- If no order confirmation has been sent, the agreement is deemed to have been concluded if and as soon as EEA commences work on the engagement, insofar that work is commenced as a result of arrangements or communications on behalf of the Client on which EEA reasonably may rely.
- Any amendments to the agreement must be agreed upon in writing. The costs attached to such amendments, and any extra time required, will be for the Client’s expense. E-mails are considered to constitute written confirmations.
- EEA is entitled to outsource the engagement or any elements thereof to third parties not in EEA’s employ, or commission such third parties to perform the engagement or any elements thereof, the choice of third party being at EEA’s discretion. EEA is entitled to have the Engagement performed in accordance with EEA’s own creative understand- ing and views, unless explicitly agreed otherwise.
- The Client is responsible for timely delivery of all data or Reference Materials reason- ably required for the performance of the engagement. The Client must also provide all other cooperation that is, reasonably, required in connection with the performance of the Engagement. If EEA is forced to suspend work on the Engagement because this obligation on the Client’s part has not been fulfilled, the costs caused by that suspension, and any damages resulting, will be for the Client’s expense.
- If no representative of the Client is present during the actual performance of the engagement, nor available with a reasonable degree of effort, EEA is deemed to act as the Client’s Contact or Representative – insofar as is necessary –. As a consequence, EEA is entitled to make changes to the performance of the Engagement and Client is obliged to remunerate EEA for any costs arising in connection with such changes.
Article 5 – Dissolution
- If the Client does not allow EEA and/or the Creative sufficient opportunity, within reason, to perform the engagement or if the Client fails to fulfill its obligations under the agreement, regardless of any instance of force majeure at the Client, EEA is entitled to dissolve the agreement.
- If the Client terminates or defers the Agreement, in whole or in part, the Client will be liable to compensate EEA for damages.
- In both the instances defined in the previous item, the compensation for damages will include at the minimum the total value of the Engagement, less the costs and commitments that EEA has incurred or entered into in respect of third parties and that need not be paid or fulfilled as a result of the termination of the Agreement.
- Compensation for damages is payable on demand at the moment that the Agreement is dissolved, without any written notice of default being required. Legal interest relating to damages is payable from the moment that the Agreement is dissolved.
- In the event of dissolution as defined in this Article 6, the Client is obliged to return to EEA all visual materials supplied, including but not limited to the End Product.
Article 6 – Invoice & Payment
- The Other Party shall check that the invoice of EEA is accurate. If the Other Party has not rejected the invoice in writing and returned it to EEA 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 shall be made within fourteen days of the date of the invoice.
- The Other Party shall pay the amount due to EEA without any reduction or claim to compensation, except for the deduction of any advance payments agreed between the parties and previously made to EEA.
- If the Parties have agreed that payment will be made in installments, late payment will result in the entire amount being payable on demand, without any notice of default being required.
- Failure to make full payment to EEA will in all instances result in any approval previously granted to use the End Product supplied being withdrawn.
- If the Parties have agreed on the payment of an advance, that advance must be paid within 8 days and must be in EEA’s possession on the working day prior to the first day of production/shoot. If that advance is not in EEA’s possession by then, EEA and/ or the Creative are entitled to suspend work or the production until the advance has been received.
- In the event of non-payment or late payment, the Client is liable to pay trade interest from the date on the relevant invoice. All other costs, such as collection costs, extra- judicial costs and all legal fees will also be for the Client’s account, in all cases subject to a minimum of 10% of the amount invoiced.
- In the event of non-payment or late payment on the part of the Client, EEA and/or the Creative will have a right of retention in respect of all objects provided by them to the Client, until the Client has paid all amounts owed to EEA.
- The Client hereby waives all rights to offset or deferral in connection with any payment.
- EEA is at all times entitled to demand payment of an advance by the Client. If the Client fails to comply with such a demand, EEA is entitled to suspend the performance of the Agreement or dissolve the Agreement in whole or in part, in which instances the Client will be obliged to pay the total amount of the Engagement.
- Any use of the works provided for by EEA or the Creative’s represented by EEA whatsoever is prohibited until the Other Party has paid any outstanding invoice of EEA or has otherwise complied with any other obligation arising from any agreement whatsoever with EEA.
Article 7 – Complimentary Copy
- Upon publication of the work, the Other Party should immediately and free of charge provide EEA with both a complimentary copy of the publication and digital copies of the publication such as High Res images.
Article 8 – Deadlines, postponement
- The deadlines specified in the quote and Agreement are targets, unless otherwise agreed.
- If the Client specifies requirements in terms of weather conditions during the production, the consequences of any failure of the required weather conditions to appear will be entirely for the Client’s expense, if the work or the production has to be postponed as a result of that failure.
- Image Carriers shall be delivered in the premises in which EEA carries out his business. From the moment they are sent out until the moment they are received back undamaged by the EEA, Image Carriers are at the risk of the Other Party.
- Digital files containing Photographic Works shall be delivered following proper consultation and in a manner agreed between both parties and are at the risk of the Other Party from the moment they are sent.
- In case no delivery time or date has been agreed, EEA shall decide a reasonable period.
- If EEA and the Other Party agree to fix the delivery at an earlier date, EEA is entitled to increase the price originally agreed by at least 50%.
- Every delivery, including the delivery of any part of a commission, may be invoiced separately if any part of a commission can be valued separately.
Article 9 – Complaints & Revisions
- Complaints regarding Work supplied should be reported to EEA in writing as soon as possible, within a maximum of five working days of its delivery. EEA has the right to substitute the rejected work with good work within a reasonable period.
Article 10 – Possession/ownership of Image Carriers
- If there is no agreement that the Image Carriers remain in the possession of the Other Party, it shall ensure that these are returned immediately after the agreed usage to EEA without any cost for the EEA. Doing so too late or not at all shall not result in EEA losing any of his rights.
- If Photographic Works have been delivered in digital form, the Other Party shall immediately erase and/or destroy them following the agreed usage and not store them for re-usage. Doing so too late or not at all shall not result in the Photographer losing any of his rights.
- If an Image Carrier is not returned to the Photographer within four weeks after the agreed period, it shall be regarded as missing
- In the event that an Image Carrier is missing or damaged, the Other Party shall compensate EEA for his loss.
- Image Carriers remain the property EEA. The Other Party is only entitled to acquire the ownership if this has been expressly agreed.
Article 11 – Submission on Approval
- Image Carriers submitted on approval which are not used should be returned by the Other Party within five working days after they were received.
- Digital files of Photographic Works submitted on approval which are not used should be erased or destroyed by the Other Party within ten working days after they were received.
- In the event that Image Carriers and/or digital files containing Photographic Works are retained beyond the agreed period, the Other Party shall compensate EEA for the damage he has suffered as a result.
- The Other Party is not only obliged to return in time to EEA the originally submitted Image Carriers; he shall not copy and keep the Image Carriers in any form whatsoever, and/or keep any digital files he received containing Photographic Works, and must immediately destroy any such copy.
Article 12 – Commissions of Photographic Work
- A commission contract is an agreement in which EEA undertakes to the Other Party to make and/or supply Photographic Works of other work.
- A commission contract becomes binding when the offer of EEA is accepted by the Other Party. This acceptance can be confirmed by a written confirmation sent by the Photographer 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 the Photographer in accordance with the offer.
- The Photographer is entitled to carry out every part of the commission contract not explicitly described according to his own technical and creative judgment.
- Changes to the commission by the Other Party for whatever reason and pending the carrying out of the commission contract shall be at the expense of the Other Party. They will only be carried out by the Photographer once a separate offer for the additional costs has been signed in agreement by the Other Party, and returned to EEA.
- In the event that a commission contract has been cancelled by the Other Party at whatever time and for whatever reason, EEA is entitled to receive the agreed price, minus costs not yet made.
- Unless expressly agreed otherwise, EEA is at complete liberty to choose the suppliers and third parties with whom he will work in order to carry out the commission contract, including models and stylists.
Article 13 – Internet
- The Other Party shall provide EEA with unlimited access free of charge to each part of its website on which the Work is reproduced. If special arrangements need to be made to achieve this, then the Other Party will ensure these are made.
Article 14 – Title, License and Copyright
- Copyright of the Work is owned by EEA or the Creative represented by EEA.
- The ownership rights and intellection property rights attached to the End Product, which are understood to include the copyrights and neighbouring rights, belong to EEA and/or the Creative.
- The Client’s use is restricted to the purpose, the territories, the period, the frequency and the media agreed between the Parties. If the Parties have not specified any arrangements concerning user rights, the user right is deemed to be once-only and restricted to use for a maximum period of one year, in the Netherlands, and utilizing the medium of the initial use. Any other form of use requires prior written approval from EEA.
- The Client may not make any changes or edits to the End Product without EEA’s written approval, nor allow any third parties the opportunity, whether intentional or unintentional, to use, reuse, download or edit the photographs in digital form or otherwise.
- In addition to the above, the Client may not transfer the title to, pledge, lend, lease the End Product supplied by EEA and/or the Creative, or provide it in any other fashion, to any third party, nor encumber the End Product with third-party claims or rights, unless EEA has granted its explicit approval for such and unless the Client has full filled all its obligations in respect of EEA and/or the Creative.
- If the approval as meant in the previous items has not been granted, the Client is obliged to indemnify EEA and/or the Creative in full for damages.
- In addition, the Client must pay EEA and/or the Creative the following mark-ups, at the minimum, expressed as percentages of the fees paid or payable to the relevant Creative and any other persons or employees in connection with the Engagement, in the following situations:
- use in Europe, but outside the Netherlands: 100%
- use outside Europe: 100%
- use in a different medium: 50% per medium
- use for a longer period: 100% per year, with a minimum of one year.
The mark-ups specified in items a to d, above, may be cumulative, and are payable on demand from the moment of each instance of unauthorized use, without any notice of default being required.
- If the Parties have agreed that the title to the End Product to be supplied is to be transferred to the Client, or that a license is to be granted to the Client, such arrangements will, in all instances unless explicitly agreed otherwise in writing, be subject to the condition precedent that the Client has paid all amounts owed to EEA and/or the Creative under whatever agreement. The right to use the End Product supplied to the Client will not exist until the moment that the Client has paid all amounts owed to EEA and/or the Creative under whatever agreement.
- The Client indemnifies EEA and/or the Creative against any third-party claims arising in connection with intellectual property rights relating to the Reference Materials supplied by the Client or any ideas, synopses, treatments, scenarios, scripts, story lines, formats or concepts approved by the Client and detailed, edited and/or executed by EEA and/or the Creative, and against loss of, theft of, destruction of or damage to the Reference Materials and/or any data provided and/or supplied by the Client.
- If agreed, the Client must state the Creative’s name in each instance of use of the End Product. The Client must also impose this obligation upon any relevant third parties.
- EEA and/or the Creative are at all times entitled to use the End Product for their own publicity or promotion.
Article 15 – License
- Use by the Other Party of a Photographic Work requires prior written consent.
- If the scope of the license is not specified, it shall not 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 the interpretation of the Photographer.
- In the absence of a specifically-agreed method of publication and/or described purpose and/or described circulation , the only authority deemed to have been conferred is that which is included in the license as standard or which, given the nature and scope of the agreement, necessarily follows from this.
- If the photographer has given permission for image manipulation, electronically or otherwise, the result may only be used once explicit consent has been obtained.
Article 16 – Sub License
- Unless otherwise agreed, the Other Party is not entitled to grant sub-licenses to a third party.
Article 17 – Infringement of copyright
- Each unauthorized use of a Photographic Work is deemed to be an infringement of the Photographer’s copyright.
- Any infringement entitles EEA to claim compensation of at least three times the license fee usually charged by the Photographer for such type of use, without losing any right to claim compensation of other damages (including the right to compensation of all direct and indirect damages and all judicial and extra-judicial costs actually incurred).
Article 18 – Creative’s and EEA’s credit
- The name of the Creative and EEA should be clearly credited alongside the Photographic Work used, or included elsewhere in the publication with reference to the Photographic Work. Unless specifically agreed upon by both the Client/Other Party and EEA.
- Failure to comply with this condition entitles EEA to claim compensation of at least 100% of the license fee usually charged for such a type of use, without losing any right to claim compensation of other damages (including the right to compensation for all direct and indirect damages and all judicial and extra-judicial costs actually incurred).
- If the Other Party has obtained written consent to reproduce in whatever form the Photographic Work, it shall ensure that the name of the Creative and EEA accompanies these reproductions. In the case of digital/electronic copies, the Other Party shall also ensure that the entire metadata that was included in the digital file by the Creative and EEA – information according to the EXIF, IPTC, XMP and ICC standards -shall be preserved.
Article 19 – Third Party Rights
- If the Other Party publishes a Photographic Work, it is solely responsible for obtaining the consent of those persons depicted and/or other legally entitled parties. The Other Party indemnifies EEA from all claims relating to the same.
- EEA is obliged to cooperate in tracing the persons referred to in this article.
Article 20 – Liability of EEA and Creative
- EEA/Creative is not liable for any loss suffered by the Other Party unless such loss is caused by the gross negligence or deliberate act of EEA/Creative or any third party acting on his behalf. Any liability is limited to the amount of the invoice or, if and insofar as damage is insured, up to the amount of the sum actually paid out under the insurance policy.
- Shipment or delivery of the End Product, to whatever party and to whatever location, is for the Client’s account and risk.
- If the Client default in taking receipt of the End Product shipped by EEA or if no delivery is taken of the End Product for reasons independent of EEA’s will, that circumstance will be for the Client’s risk. In such situations, EEA is entitled to store the End Product, or give it in storage, for the Client’s account and risk and to demand payment as if delivery had been made.
- Neither EEA nor the Creative is liable for any damages attributable to third parties hired by the Client or by EEA, or attributable to any materials used or persons hired by such third parties.
- EEA has taken out sufficient liability insurance. Any liability on the part of EEA and/ or the Creative will in no instance exceed the amount payable by the liability insurer.
- The Client is at all times responsible for the consequences of using the End Product. The Client hereby indemnifies EEA against all claims from third parties in connection with such use.
Article 21 – Force Majeur
- In the event of force majeure on the part of EEA, EEA is entitled either to suspend the performance of the Agreement, or to dissolve the Agreement in whole or in part. In such an event, the Client is not entitled to dissolve the Agreement, to demand fulfillment and/or compensation for damages. If fulfillment by EEA is permanently impossible, the Client is obliged to reimburse any costs, within reason, already incurred by EEA.
Article 22 – Bankruptcy/Moratorium
- EEA 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, EEA has the right to terminate the license, unless the consequences of doing so would be in breach of the principles of reasonableness and fairness.
Article 22 – Choice of Law and forum
- All matters governed by these General Terms and Conditions are subject to Dutch law.
- The Vienna Sales Convention 1980 (CISG) shall not apply.
- 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.
The original Dutch version of these General Terms and Conditions has been filed with the Court of Amsterdam under reference number 64/2012 on the 11th of July 2012.