In these General Terms and Conditions the following concepts are used in the following meaning, unless explicitly stated differently:

Transcription

1 1. Definitions In these General Terms and Conditions the following concepts are used in the following meaning, unless explicitly stated differently: A. Hollandse Hoogte: Hollandse Hoogte B.V., having its offices at Danzigerkade 9-C, 1013 AP Amsterdam, the Netherlands, registered at the Chamber of Commerce in Amsterdam under number B. Customer: The purchaser of the products and/or services of Hollandse Hoogte B.V., whether or not acting in the exercise of a profession or enterprise that has accepted the applicability of these General Terms and Conditions i n any way. C. Licensor: The supplier of the Photo, including photographers, agencies and collections, on behalf of which Hollandse Hoogte acts as intermediary. D. The Photo: a photographic work in the sense of the Auteurswet, or another work in the sense of that law, which work with a photographic work can be regarded equally, and of which a file and license of use will be delivered by Hollandse Hoogte to the Customer. E. Activities: all that Hollandse Hoogte, in addition to the delivery of Photos, at the request of the Customer, executes, makes, executes, (let be) executed, (let be) made and/or (let be) executed, all in the broadest sense of the word. Including, but not limited to, photographing in commission, commercial exploitation, editing services, the design and manufacturing of a Photo, the giving of advice and the execution of services on location. F. Commission: the request of the Customer to Hollandse Hoogte to let against payment one or more Photos b e d e l i v e r e d and/or activities to be executed. G. Offer: an offer of Hollandse Hoogte to the Customer for the delivery of a Photo and/or the execution of Activities. H. Agreement: the rights and obligations of Hollandse Hoogte and the Customer, deriving from the Offer and the Commission. 2. Applicability 2.1 These General Terms and Conditions are applicable to all legal relations between Hollandse Hoogte and the Customer, also after the termination of an Agreement, unless parties in writing and explicitly have deviated from these General Terms and Conditions. The Agreement is concluded by t h e Commission of the Customer and acceptation thereof by 2.2 General Terms and Conditions that are used by the Customer are explicitly refused by 3 Offer, Delivery and Payment 3.1 Photos of Hollandse Hoogte are made available and/or via digital transmission. Hollandse Hoogte operates, for the publication of Photos, various websites, including Offers of Hollandse Hoogte are fully non-binding, unless explicitly stated differently. An Offer of Hollandse Hoogte obliges Hollandse Hoogte never to comply with a part of the offered performance against a proportional part of the price. 3.3 If no other fee in writing has been agreed, then Hollandse Hoogte shall apply the usual fees therefore. Prices can be obtained at Hollandse Hoogte is authorised to charge in-between changes in the Agreement, executed at the request of the Customer, to the Customer. All fees to be paid by the Customer to Hollandse Hoogte are exclusive of VAT. 3.4 All Activities can be invoiced to the Customer. Payment must take place within thirty (30) days after date of the invoice. After the expiration of this term the Customer is in default and he is liable to pay the interest by law, increased with 2%. If Hollandse Hoogte has to proceed to

2 collection of claims, the collection costs will be charged to the Customer. These costs amount to 15% of the invoiced amount, with a minimum of Complaints shall be submitted no later than ten [10] days after delivery in writing to 4 (Intellectual) Property and Use 4.1 The (intellectual) property that rests on the Photo shall remain with Hollandse Hoogte and/or its Licensors, unless this has been agreed explicitly and in writing differently. 4.2 The Customer shall notify Hollandse Hoogte in advance of the intended use, the purpose, medium, duration, way and number of copies. In case of use on the internet the Customer shall inform Hollandse Hoogte of each website for which he wishes to use the Photo. 4.3 No use whatsoever of the photo file and/or the Photo by the Customer is permitted, for as long as the Customer has not fully complied with each agreed and/or recorded obligation, such as the p a y m e n t of the fee, deriving from whichever agreement with 4.4 A license provided by Hollandse Hoogte to the Customer encompasses a non-exclusive permission to one-time use on the agreed way for a certain purpose. Permission for use in a medium does not include permission for publication in/on another medium. The licence is interpreted in a limited way, to the advantage of Licensor and 4.5 The Customer may: a. Publish the Photo one-time, in unchanged form, solely in accordance with the publication criteria agreed with Hollandse Hoogte; b. To make a copy of the Photo to the extent necessary for the agreed use. 4.6 the Customer is not authorised: a. to grant sub-licences with regard to the Photo to third parties or to assign the granted rights; b. to re-publish, sell on, buy for another, transfer or to distribute the Photo; c. to publish the Photo without stating the name, as described hereafter; d. to make other copies of the Photo digital or otherwise than those which are strictly necessary for the agreed use; e. to store the Photo in a databank, archive or other possible form of digital storage, that goes beyond the use of the Photo in accordance with the Agreement; f. to use the Photo in a downloadable or printable format meant for distribution; g. to use the Photo in such a context that this is harmful for Hollandse Hoogte or its Licensors, or violates a right of a portrayed person, such as but not limited to a way that negatively influences the honour and good name, violates the privacy, is of a sexual nature, contains a serious charge, or is otherwise illegal. 4.7 The Customer has the following obligations: a. the Customer shall ensure that when letting be published or publication and the multiplication or letting be multiplied of the Photo, in whichever form, the name of the source of the Photo at all times is clearly stated at the Photo, meaning at least under or on the Photo or in the colophon in which reference is made to the Photo, by means of the following reference: <Name photographer>, <name Licensor>, Hollandse Hoogte, or by means of another reference agreed with Hollandse Hoogte to/statement of the Photo in the publication; b. In the case of digital/electronic publication/reproduction the Customer is also obliged to ensure that the full metadata - such as these are made by Hollandse Hoogte as a part of the digital file will be maintained; it thereby concerns information in accordance with the EXIF, the IPTC, the XMP and the ICC-standards. In case of non-compliance with the previous Hollandse Hoogte is entitled to a fee of at

3 least 100% of the license fee usually applied by Hollandse Hoogte, without losing any right to compensation of other incurred damage (including the right on compensation of all direct and indirect damage and all actual in and out-of-court costs of legal assistance); c. the Customer and/or each end user that publishes or let publish the Photo, is fully responsible for obtaining the permission (to the extent required) of the portrayed person(s) and/or other entitled persons, if the portrait rights or intellectual property rights, including but not limited to portrait, copy, model and/or trade mark rights, have not been safeguarded explicitly and in writing by Hollandse Hoogte. The Customer safeguards Hollandse Hoogte, and its Licensor and any other concerned entitled person of all claims in that regard; d. In case of agreed use on the internet the Customer shall ensure that the dimensions of the Photo displayed by him on the internet shall not be larger than 800 by 600 pixels. e. Customer shall ensure that the Photo cannot be reproduced by third parties. f. after the end of the agreed use the Customer shall delete or destroy all files of the Photo; Upon publication of the Photo in whichever form the Customer must immediately and without c h a r g i n g costs send at least one evidentiary copy (whether or not in digital form) with the publication of the Photo to The Customer shall provide Hollandse Hoogte freely and without charge access to each part of the website on which the Photo is represented or via which this is displayed. If hereto special facilities are required then the Customer shall provide these to Hollandse Hoogte reserves the right to check publications of the Customer in which the Photo is has been published. Changes a. The Customer is not authorised to change, manipulate or mutilate the Photo in such a manner, that is damaging for Hollandse Hoogte or its Licensors, or violates article 25 o f t h e Auteurswet. b. The Customer shall discuss desired changes of the Photo firstly with c. If the Customer has permission of Hollandse Hoogte or Licensor to manipulate or strongly treat the Photo, the result thereof may only be used after explicit permission in writing. d. The copyrights on the changed Photo shall be with Hollandse Hoogte and the Customer shall u p on first request of Hollandse Hoogte cooperate free of charge to any formality to effectuate that transfer. 4.8 Each use by the Customer of the Photo that has not explicitly been agreed with Hollandse Hoogte will be regarded as a violation of the (Intellectual) Property rights of Hollandse Hoogte and/or its Licensors. Then the Customer is liable to pay to Hollandse Hoogte a fee of at least three times (3x) the usual fee at Hollandse Hoogte for (such a form of) use of the Photo, with a minimum of , without that Hollandse Hoogte loses any right on compensation of other incurred damage (including the right to compensation of all direct and indirect damage and all actual in-court and out-of-court costs), or any other right deriving from the law. 4.9 If the Photo has been used in violation of what has been stipulated in the Agreement, then the rights granted in the Agreement shall automatically be withdrawn and the Customer upon first request of Hollandse Hoogte shall remove or let be removed the Photo from the websites and its digital systems If the Photo is used by third parties of whom it can be assumed that this use is in violation of the Agreement, the Customer shall notify Hollandse Hoogte hereof immediately.

4 4.11 The name Hollandse Hoogte and the logo of Hollandse Hoogte are registered trademarks. It is forbidden to use this name or the logo, without the prior permission in writing from Hollandse Hoogte, or the obligation to stating the name Hollandse Hoogte reserves the right not to allow certain use of the Photo and on whichever ground. Hollandse Hoogte shall inform the Customer in such a case. If a licence is already granted, then that will be withdrawn upon such notification automatically and directly. Parties shall then enter into consultation about a replacement Photo or a financial arrangement. Social Media 4.13 If Hollandse Hoogte has agreed with the Customer a licence for use on social media platforms, then in addition to the other stipulations of these General Terms and Conditions the following conditions shall apply: a. Hollandse Hoogte grants the Customer a non-exclusive licence for the use of the Photo on the agreed websites, hereinafter the Websites. Under permitted use will be understood the one-time publication of the Photo on the Websites, for the agreed accounts. b. The General Terms and Conditions that the provider of the Website uses do not apply to this Agreement. To the extent required these are rejected explicitly by c. It is third parties permitted to share the Photo solely on the Website. Use by third parties outside the Website is a violation of the copyrights. The Customer safeguards Hollandse Hoogte for the damage and costs that relate thereto. 5 Liability 5.1 Hollandse Hoogte shall make an effort to update and extend its website with domain name frequently. Despite this care and attention it is possible that the content is incomplete or incorrect. No rights can be derived from the content of the website. Hollandse Hoogte is not liable for damage that in any way relates to the use of the website or the impossibility to consult the website. Unauthorised or improper use of the website or the content thereof can violate the intellectual property rights of Hollandse Hoogte in the broadest sense of the word or be illegal towards it. 5.2 Hollandse Hoogte respects the privacy of the Customer and shall make every effort to protect this. Hollandse Hoogte shall not make the personal data of the Customer available to third parties without explicit prior permission of the Customer, unless Hollandse Hoogte has a lawful obligation thereto. Hollandse Hoogte draws the Customer attention to the fact that data provided by the Customer to Hollandse Hoogte, such as name, ( ) address and phone number(s), are recorded in the database of This file has been registered with the College Bescherming Persoonsgegevens. The customer data are only used for the administration of Hollandse Hoogte, for the execution of the agreements concluded with Hollandse Hoogte, for improvement of its provision of services and to keep the Customer informed about interesting information and offers of products and services of Hollandse Hoogte, possibly also after termination of the agreement. The Customer can request his/her own data and request Hollandse Hoogte in writing to let these data be corrected or removed, unless the storage obligation by law obliges Hollandse Hoogte to keep the data.

5 5.3 Hollandse Hoogte is not liable for damage which has emerged for the Customer, unless there is an instance of gross negligence or wilful intent at the side of Hollandse Hoogte or by third parties employed by it. The liability is then in any case limited to the amount of the invoice. 5.4 The Customer is obliged to report each change of address within a reasonable term prior to that change in writing to In the absence thereof the Customer shall be liable for all damage that derives here from. 5.5 In case of bankruptcy or suspension of payment, or cessation of the enterprise of the Customer, the Customer is required to (let) notify Hollandse Hoogte hereof without delay and has Hollandse Hoogte the right to terminate the Agreement with immediate effect. 6 Disputes 6.1 The laws of the Netherlands govern these General Terms and Conditions, as well as all Offers and Agreements otherwise concluded between parties, irrespective of the residence or (legal) seat and/or nationality the Customer may have and irrespective of the place where the delivery has taken place. The Vienna Purchase Treaty (1980 CISG) has been excluded. 6.2 The District Court in Amsterdam, the Netherlands, is exclusively authorised to rule over or take knowledge of disputes, emerged further to these General Terms and Conditions and/or Offers and/or Agreements otherwise concluded between parties, unless a mandatory lawful stipulation declares another court to be competent. These General Terms and Conditions have been filed at the Chamber of Commerce in Amsterdam under number