General Conditions of the Dutch Federation of Photographers BFN.
Section A - general
1.In these General Conditions the following are 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 Counter Party, on which a Photographic work has been laid down (whether or not perceivable by eye), such as a transparency, print, duplicate, polaroid or floppy-disk.
Photographer: the user in the sense of article 6:231 of the Dutch Civil Code
Counter Party: the Counter Party in the sense of article 6:231 of the Dutch Civil Code.
2.These General conditions are applicable to all legal relationships between a Photographer and a Counter Party, 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 a Counter Party are expressly rejected by the Photographer.
3.Offers are entirely without obligation, unless the contrary is expressly stated. The Photographer has the right, up to two days after receipt of the acceptance of his offer, to withdraw this offer. The offer 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 payment for the photographer is applicable. If one cannot speak of a usual payment, then at least the Guide Prices of the Federation of Photographers (the most recent version which is filed with the District Court in Amsterdam) are applicable and these constitute a part of these General Conditions. Three months after the agreement has been concluded the Photographer has the right to pass interim changes to the Guide Prices on to the Counter Party.
5.Photographs are delivered in the building where the Photographer carries on his business. Photographs which are sent are at the risk of the Counter Party from the moment of dispatch up to the moment that the Photographs are received back undamaged by the Photographer.
6.If no delivery term has been agreed upon, this will be determined in reason by the Photographer. If the Photographer and the Counter Party agree that the delivery term be advanced, the Photographer has the right to increase the original payment by at least 50%.
7.If it has not been agreed that the Photograph remains in the possession of the Counter Party, the latter must return this immediately after use free of charge to the Photographer. Non-performance or non-timely performance of this obligation does not lead to the loss of any rights of the Photographer. Articles 24 to 27 of Section C are applicable mutatis mutandis.
8.Photographs remain the property of the Photographer. The Counter Party only has the right to transfer of the title if that has been expressly agreed or if this is evidenced by the nature of the agreement. Unless agreement to the contrary is made, the Counter Party has no rights to transfer of negatives or other original exposed material, or duplicates thereof. The title to the Photographs shall in any event remain that of the Photographer and no use whatsoever may be made of the Photographic Work in any manner whatsoever as long as the Counter Party has not complied with any obligation whatsoever which arises from any agreement whatsoever with the Photographer.
9.Complaints must be notified to the Photographer in writing as quickly as possible, but in any event within ten working days after delivery. The Photographer has the right to deliver good work after all to replace work which has been rejected within a reasonable term, unless this would lead to unreasonable damages for the Counter Party.
10.All deliveries, 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.
11.Payment must be made within 30 days after the invoice date. After this term has expired the Counter Party shall be in default and shall owe the statutory interest plus 2%. If the Counter Party is in default or if he fails in another manner in the performance one or more of his obligations, including infringement of copyright, then all reasonable costs for obtaining payment outside of court shall be for his account. The Counter Party shall in any event owe:
- on the first Euro 6,500.00: 15% with a minimum of Euro 500,--;
- on the next amount up to Euro 13000,00: 10%;
- on the next amount up to Euro 32500,00: 8%;
- on the next amount up to Euro 130000,00: 5%;
- on the next amount: 3%
12.If the circulation of a publication is under discussion and if this partly determines the applicable payment, the Photographer has the right to have the accounts of the Counter Party checked on this point by an accountant who is recognized by NOVAA. If differences are found the costs of the accountant are for the account of the Counter Party.
13.The Counter Party shall make the payments owed to the Photographer without any deductions or any claims invoking set-off of debts, except for set-off against advances which are subject to set-off which he has given to the photographer.
14.If permission for the use of a Photographic work is granted, this only includes the right for a once-only use, in an unchanged form, for the benefit of a purpose, circulation and manner such as the parties intended when the agreement 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 the Photographer. In the absence of a specific agreed manner of publication and/or described purpose and/or circulation, then only those powers which necessarily result from the nature and scope of the agreement are deemed to have been given.
15.All use of a Photograph which has not been agreed upon is considered as an infringement of the copyright of the Photographer. In the event of infringement the Photographer is entitled, without for the rest losing any rights, including the right to compensation of damages, to compensation amounting to at least three times the usual payment for the Photographer for such a form of use, with a minimum of Euro 500.00.
16.The name of the Photographer 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, the Photographer shall be entitled to an extra payment, without for the rest losing any right (including the right to compensation of damages), of at least 100% of the amount owed for publication rights.
17.When a Photographic work is published the Counter Party must immediately, and at no charge, send an example of the publication as evidence to the Photographer.
18.The Counter Party, or any third party who publishes a Photographic Work, is responsible to the exclusion of others for obtaining permission of persons who are portrayed and other entitled parties. The Photographer is obliged to cooperate, to the extent that he is able, in tracing the persons referred to in this article.
19.The Photographer is not liable for damages which have arisen for the Counter Party, unless there is a case of crass fault or purposeful action on the side of the Photographer or the persons he has engaged. The liability is in any event limited to the size of the invoice amount.
20.Both the Photographer and the Counter Party have the right to immediately terminate the agreement in the case of bankruptcy or a moratorium of payments of the other party.
21.All cases in which these General Conditions are applicable are governed by Dutch law.
Section B - commisions
22.The Photographer has the right to implement all things which have not been explicitly described in a commission according to his own technical and creative insight.
23.If a commission is cancelled, the Photographer is entitled to the agreed payment, less the costs which have not yet been incurred.
Section C - free productions and deliveries from archives
24.Photographs which have been made available as a consignment for inspection and which are not used must be returned by the Counter Party within ten working days. Photographs which are used must be returned by the Counter Party within three months after receipt.
25.If a Photograph has not been returned to the Photographer within fourweeks after the agreed term (including the term referred to in article 24), it shall be considered as having been lost. In the event of loss of or damage to a Photograph a payment shall be due amounting to: a minimum of EURO 1,500.00. Damage is also taken to mean the making of notes or reproduction indications on Photographs. These general conditions have been filed at the district court in Amsterdam under number 163/1992