general conditions
Section A - General
1. In these General Conditions the following is taken to mean
Photographic work: Photographic works as referred to in the 1912 Dutch Copyright Act, or other works in the sense of the 1912 Dutch Copyright Act which can be equated with the said photographic works
Photograph: The physical carrier delivered by the Photographer to the Other Party, on which a Photographic work has been laid down (whether or not perceivable by eye), such as a Transparency, Negative, Print, Duplicate, Floppy- disk, Polaroid or electromagnetic carrier, as well as electronic data
Photographer, in this context
Visual Eye Talk: The user in the sense of article 6:231 of the Dutch Civil Code
Proofing: A Visual Eye Talk folder with a proof of the photos taken during the photo session
Other Party: The Other Party in the sense of article 6:231 of the Dutch Civil Code
2. These General Conditions are applicable to all legal relationships between Visual Eye Talk and an Other Party, including offers, order confirmations, a verbal or written agreement, also after an agreement has been terminated, unless the parties have deviated from these conditions expressly and in writing. General Conditions which are employed by an Other Party are expressly rejected by Visual Eye Talk.
3. Order confirmations are binding, unless expressly stated otherwise. Visual Eye Talk has the right, up to two days after receipt of the acceptance of its offer, to withdraw the offer. The order confirmation does not impose an obligation to deliver a part of the performance in return for a proportional price.
4. If no payment has been agreed upon, then the usual tariff of
Visual Eye Talk is applicable. In so far as one cannot speak of a usual tariff, then at least the Guide Prices of the Federation of Photographers, (including BUR = base usage rate) (the most recent version which is filed with the District Court in Amsterdam, The Netherlands) are applicable and these constitute a part of these General Conditions.
In case three months have passed after the agreement has been concluded
Visual Eye Talk has the right to pass interim changes to the Guide Prices on to the Other Party.
5. If Visual Eye Talk and the Other Party agree that the delivery term be advanced, Visual Eye Talk has the right to increase the original payment by at least 30%, as so called rush costs.
6. The Other Party is only entitled to the transfer of ownership in case this has been expressly agreed or if this is evidenced by the nature of the agreement.
Unless agreement to the contrary is made, the Other Party has no right of transfer of negatives or other original exposed material, or duplicates thereof. The Copyright to the Photographs shall in any event remain that of Visual Eye Talk and no use whatsoever may be made of the Photographic work in any manner as long as the Other Party has not complied with any obligation which arises from any agreement whatsoever with
Visual Eye Talk.
7. Complaints related to the quality of the delivered photographic work must be notified to Visual Eye Talk in writing as quickly as possible, but in any event within ten working days after delivery of the photo(‘s). Visual Eye Talk has the right to deliver improved work after all to replace work which has been rejected within a reasonable term, unless this would lead to unreasonable damages for the Other Party.
8. Any delivery, including a delivery of a part of a composite order, may be invoiced separately if a part of the composite order is of value as an individual part.
9. Payment must be fulfilled the moment that
- The order confirmation, or offer has been
signed by the Other Party and returned
to Visual Eye Talk or
- The order form has been filled in, signed
and returned to Visual Eye Talk or
- An e-mail Photo order has been sent to,
and received by Visual Eye Talk
The Other Party on his turn will check the order confirmation/invoice for correctness. The order confirmation/invoice will be binding if the Other Party has not communicated in writing his duly specified objections against the order confirmation/invoice to Visual Eye Talk within fourteen days. Thus no right to reclamation can be made.
10. If the circulation of a publication is under discussion and if this partly determines the applicable payment, Visual Eye Talk has the right to have the accounts of the Other Party checked on this point by an accountant who is recognized by NOVAA (Nederlandse Orde van Administratie- consulenten). In case differences are found the costs of the accountant are for the account of the Other Party. Furthermore, the Other Party will on the basis of the actual data, pay on receipt of invoice the compensation to Visual Eye Talk.
11. The Other Party shall make the payments owed to Visual Eye Talk without any deductions or any claims invoking compensation of debts, except for set-off against advance payments which are subject to acknowledgement by Visual Eye Talk.
12. If permission for the use of a Photographic work is granted, which will only be given on a written base as a license in an offer or invoice by
Visual Eye Talk, this only includes the right for a once-only use, in an unchanged form, for the benefit of a specified purpose, circulation and manner such as the parties intended when the agreement on the offer and/or invoice was concluded. If permission has been given for use in electronic or other forms of image manipulation, the result may only be used following express permission from Visual Eye Talk. In the absence of a specific agreed manner of publication and/or described purpose and/or circulation, only those permissions may be assumed to be given as which are standard given in the BUR license (Base Usage Rate), or which are in compliance with the written agreement and which include first use of the photographs.
13. Any use of a Photograph which has not been agreed upon is to be considered an infringement of the copyright of
Visual Eye Talk. In the event of infringement Visual Eye Talk is entitled, without losing any other rights, including the right to compensation of damages, to compensation amounting to at least three times the usual payment for
Visual Eye Talk for such a form of use.
14. The name of the Photographer and her Company ‘Visual Eye Talk’ must be stated clearly alongside a Photograph which is used, or must be included in the publication with a reference to the Photograph. In the event of non-compliance with this condition,
Visual Eye Talk shall be entitled to an extra payment, without losing any other rights (including the right to compensation of damages, legal expenses in or outside Court Procedures), of at least 100% of the amount owed for Publication Rights (Section D – Publication Rights).
15. When a Photographic work is published the Other Party must immediately, and at no charge, send a sample of the publication as evidence to Visual Eye Talk.
16. The Other Party who publishes a Photographic Work is to the exclusion of others responsible for obtaining permission of persons who are portrayed and other entitled parties. Visual Eye Talk is obliged to cooperate, to the extent that he is able, in tracing the persons referred to in this article.
17. Visual Eye Talk is not liable for damages which have arisen for the Other Party, unless there is a case of gross negligence or purposeful action on the side of Visual Eye Talk or the persons it has engaged. The liability is in any event limited to the amount of the invoice.
18. Both Visual Eye Talk and the Other Party have the right to immediately terminate the agreement in the case of bankruptcy or a moratorium of payments of the Other Party.
19. All cases in which these General Conditions are applicable are governed by Dutch law. Any disagreement in connection with the text and/or the explanation of these General Conditions and a legal relationship between Visual Eye Talk and a Party will be presented to the (Dutch) Court in
These General conditions are a translation of the official General conditions in Dutch which have been filed at the Chamber of Commerce in
Section B - Assignments
20. An assignment will come about when the order confirmation or offer has been signed for the photo shoot to take place on an agreed date and time. Right after this agreement the photo session fee including the possibly agreed traveling expenses will be fully paid by the Other Party on the bank account of
Visual Eye Talk.
The moment the Other Party makes an order he is obliged to make the payment on the bank account of Visual Eye Talk. Upon receipt of the order and the payment Visual Eye Talk is obliged to execute the order and send it within fourteen days to the Other Party in The Netherlands.
21. Visual Eye Talk has the right to implement all things which have not explicitly been described in the assignment according to his own technical and creative insight. In case the Other Party wishes to make changes in the assignment agreed upon
Visual Eye Talk is entitled to change the original offer and request an additional payment if he deems proper.
22. Unless explicitly arranged otherwise Visual Eye Talk is entirely free to use other suppliers and third parties for the fulfillment of its assignment. This includes amongst others models and stylists.
Section C – Free productions and deliveries from archives
23. Photographs which have been made available as a consignment for perusal and which will not be used must be returned by the Other Party within ten working days. Photographs which are used must be returned by the Other Party within three months after receipt. If Photographs are kept for longer than the agreed period, a fee is due for every day the photos are not returned to Visual Eye Talk. The prices due are shown on the web site of
Visual Eye Talk.
The Other Party is not only obliged to return the original Photograph to
Visual Eye Talk, every duplicate in any form must be destroyed immediately.
24. Repair costs may be charged in case:
a. The number, the code or other information on the back of a Photograph or on the cover of a transparency have become illegible or have disappeared during the loan;
b. A transparency has not been chosen for publication but has been taken out of its cover. The prices due are shown on the web site of Visual Eye Talk.
25. If has not been agreed that the Photo will remain in possession of the Other Party the Photo must immediately be returned free of charge to
Visual Eye Talk. Non-observance of this obligation will not lead to loss of any right of Visual Eye Talk.
26. If a Photograph has not been returned to Visual Eye Talk within four weeks after the agreed term (including the term referred to in article 25), it shall be considered to be lost.
27. In the event of loss or damage to a Photograph a payment shall be due. The price due is stated on the web site of Visual Eye Talk.
The adding of notes or reproduction indications on Photographs will also be considered as damage.
Section D – Publication Rights
28. Licenses: At Visual Eye Talk you do not actually ‘buy’ a photo, rather you license the right to use it in a specified manner. The price for each photo depends on how you are going to use the photo:
- You are licensing the rights for one-
time, non- exclusive use of a photo in
print or in digital form. The copyright
of the photo remains the exclusive
property of Visual Eye Talk,
- The right to use the photo remains with
the purchaser of the license and can
not be transferred, sublicensed or
re- sold to an Other Party,
- If you use a photo on a webpage, you
must place a copyright notice on the
same page (© Visual Eye Talk) to deter
unauthorized copying.
The prices of Publication Rights are shown on the web site of Visual Eye Talk.
Section E – Specific Conditions
29. Rate: This is meant to imply per working hour in between 08:00 am. and 06:00 pm.; In between 06:00 pm. and 12:00 pm. the double rate is being charged. For assignments which take less then one hour, the full rate will be charged.
30. Traveling expenses: Within 10 km (6 miles) of the studio traveling expenses will not be charged. When the assignment is further away traveling expenses will be charged after communicating the best and cheapest means of transportation.
31. Cancellation costs: Payment is due the moment the assignment is made on the understanding that when the Other Party cancels an assignment
Visual Eye Talk will refund the following amount:
- Not later then 48 hours for the start of
the assignment, 50% of the amount
already paid;
- Not later then 24 hours for the start of
the assignment, 25% of the amount
already paid;
- Cancellation on the spot, 0% of the
amount already paid.
32. Weather-bound (necessary in connection with bad weather) cancellation: 100% of the amount already paid, unless the parties agree to different conditions.
33. Cost of materials: These are included in the cost price. This is understood to mean transparency and/or negative films, developing of films, a proofing, a bound book or digital medium storage.
34. Expenditure: This is understood to mean travel expenses, parking expenses, accommodation expenses, possibly hired personal, hire of various equipment, administrative costs etc.
35. V.A.T.: The prices agreed upon with individuals and foundations will include the V.A.T. rate applicable at that time. For organizations and companies the prices will be excluded the V.A.T. rate applicable at that time.
These general conditions have been filed at the Chamber of commerce in The Hague under number:
51242656 0001.
Last revised February 15th 2013
