English - Hollandse Hoogte

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English - Hollandse Hoogte
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 33180162.
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 Hollandse Hoogte.
2.2 General Terms and Conditions that are used by the Customer are explicitly refused by
Hollandse Hoogte.
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 www.hollandsehoogte.nl.
3.2 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. 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
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 € 250.00.
3.5 Complaints shall be submitted no later than ten [10] days after delivery in writing to
Hollandse Hoogte.
4.1
4.2
4.3
4.4
4.5
a.
4 (Intellectual) Property and Use
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.
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.
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 Hollandse Hoogte.
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 Hollandse Hoogte.
The Customer may:
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.
b.
to grant sub-licences with regard to the Photo to third parties or to assign the granted rights;
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;
to re-publish, sell on, buy for another, transfer or to distribute the Photo;
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
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.
f.
Customer shall ensure that the Photo cannot be reproduced by third parties.
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 Hollandse Hoogte. 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. 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 Hollandse Hoogte.
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 €
250.00, 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.
4.10 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.
4.11 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.
4.12 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
Hollandse Hoogte.
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
www.hollandse-hoogte.nl 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, (e-mail) address and phone number(s), are
recorded in the database of Hollandse Hoogte. 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.
5.3 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 Hollandse Hoogte. 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 33180162.