General terms and conditions Justin Manders Photography
J. Manders h.o.d.n. Justin Manders Fotografie (hereinafter: JMF) is registered with the Chamber of Commerce under number 74634003 and has its registered office at Zeestraat 9 (2691KA) in 's-Gravenzande.
Article 1 - Definitions
1. In these general terms and conditions, the following terms are used in the following meanings unless expressly stated otherwise.
2. Company: The natural or legal person acting in the exercise of a profession or business.
3. Consumer: The natural person not acting in the exercise of a profession or business.
4. Service provider: The Service Provider offering Services to the Client.
5. Client: The Company or Consumer who has appointed JMF, granted projects to JMF for Services performed by JMF, or to whom JMF has made a proposal under an Agreement.
6. Offer: any offer or quotation to the Client for the provision of Services by JMF.
7. Services: JMF offers both corporate and private photography services such as business photography, wedding photography, boudoir photography and portrait photography.
8. Agreement: any Agreement and other obligations between the Client and JMF, as well as proposals by JMF for Services provided by JMF to the Client, which are accepted by the Client and have been accepted and performed by JMF with which these general terms and conditions form an indissoluble whole.
Article 2 - Applicability
1. These general terms and conditions apply to any Offer by JMF, any Agreement between JMF and Client and any service offered by JMF.
2. Before an Agreement is concluded, the Client will be provided with these general terms and conditions. If this is not reasonably possible, JMF will indicate to the Client how the Client can inspect the general terms and conditions.
3. Deviation from these general terms and conditions is not possible. In exceptional situations the general terms and conditions may be deviated from insofar as this is explicitly agreed in writing with JMF.
4. These general terms and conditions also apply to additional, amended and follow-up orders from the Client.
5. Client's general terms and conditions are excluded.
6. If one or more provisions of these general terms and conditions are partially or wholly void or annulled, the remaining provisions of these general terms and conditions shall remain in force, and the void/annulled provision(s) shall be replaced by a provision with the same purport as the original provision.
7. Uncertainties about the content, interpretation or situations not regulated in these general terms and conditions shall be assessed and explained according to the spirit of these general terms and conditions.
8. The applicability of Sections 7:404 and 7:407 (2) of the Civil Code is explicitly excluded.
9. Where reference is made in these general terms and conditions to she/he/him, this should also be construed as a reference to he/him/his, if and to the extent applicable.
Article 3 - The Offer
1. All Offers made by JMF are without obligation, unless expressly stated otherwise in writing. If the Offer is limited or valid under specific conditions, this will be explicitly stated in the Offer.
2. JMF is only bound by an Offer if it is confirmed in writing by the Client within 14 days, unless agreed otherwise. Nevertheless, JMF is entitled to refuse an Agreement with a (potential) Client for a reason that is valid for JMF.
3. The offer contains a description of the Services offered. The description is sufficiently specified so that the Client is able to make a proper assessment of the offer. Any details in the offer are only indicative and cannot be a ground for any compensation or dissolution of the Agreement.
4. Offers or quotations do not automatically apply to follow-up orders.
5. Delivery dates in JMF's offer are in principle indicative and if exceeded do not entitle the Client to dissolution or compensation, unless explicitly agreed otherwise.
Article 4 - Conclusion of the Agreement
1. The Agreement is concluded when the Client has accepted an Offer or Agreement from JMF by paying the down payment
2. JMF is not bound by an Offer if the Client could reasonably have expected or should have understood that the Offer contains an obvious mistake or clerical error. The Client cannot derive any rights from such a mistake or clerical error.
3 If the Client cancels an order that has already been confirmed, the actual costs already incurred (including time spent) will be charged to the Client.
4. Any Agreement entered into with JMF or any project awarded to JMF by the Client shall vest in the Company and not in any individual person associated with JMF.
5. The right of withdrawal of Customer being a Business is excluded, unless agreed otherwise. The Client being a Consumer has the right of withdrawal during the statutory period of 14 days, unless JMF has already started providing the Services with the Client's consent. The Client waives its right of withdrawal by means of such consent.
6. If the Agreement is entered into by more than one Principal, each Principal shall be jointly and severally liable for the fulfilment of all obligations arising from the Agreement.
Article 5 - Duration of the Agreement
1. The Agreement is entered into for a definite period, unless the content, nature or purport of the assignment implies that it is entered into for an indefinite period. The duration of the assignment also depends on external factors including but not limited to the speed at which the photographs can be taken
2. Both the Client and JMF may dissolve the Agreement on the grounds of an attributable failure to perform the Agreement if the other party is given written notice of default and a reasonable term in which to fulfil its obligations and it still fails to fulfil its obligations correctly. This also includes the Customer's payment and cooperation obligations.
3. The dissolution of the Agreement shall not affect the Client's payment obligations insofar as JMF has already performed work or provided performance at the time of dissolution. The Client must pay the agreed compensation.
4. In the event of early termination of the Agreement, the Client shall owe JMF the costs actually incurred up to that point at the agreed rate.
5. The Client being a Consumer may cancel the Agreement free of charge by e-mail up to two months before the commencement date. In case of cancellation as of two months before the commencement date, JMF is entitled to withhold the down payment, which will not be refunded.
6. The Customer being a Business may cancel the Agreement free of charge by e-mail up to one month after the down payment has been made. After expiry, JMF is entitled to charge Customer being a Business for the reserved time and the costs actually incurred up to that time.
OR (proposal 2 for companies):
If the Client being a Company cancels an Agreement already concluded, the following costs will be charged. In case of cancellation up to one month before the commencement date, the Principal will be charged 20% of the offer amount. Up to three weeks prior to the commencement date, 50% of the offer amount will be charged, and up to one week prior to the commencement date, 75% of the offer amount will be charged.JMF is at all times entitled to charge higher costs if it has incurred more costs for the execution of the Agreement.
6. Both the Client and JMF may terminate all or part of the Agreement in writing with immediate effect, without further notice of default, in the event that one of the parties has been granted a suspension of payments, bankruptcy has been applied for or the company concerned ends up being liquidated. If a situation as referred to above arises, JMF is never obliged to repay monies already received and/or to pay compensation.
7. If the appointment cannot take place due to adverse weather conditions or force majeure on the part of JMF, the parties shall consult to reschedule the appointment. Costs already incurred will be borne by the Client, unless agreed otherwise.
Article 6 - Performance of services
1. JMF shall endeavour to perform the agreed service with the utmost care as may be expected of a good service provider. JMF guarantees a professional and independent Service. All Services are performed on the basis of an obligation to perform to the best of one's ability, unless a result has been explicitly agreed in writing which is described in detail.
2. The Agreement under which JMF performs the Services is leading for the scope and extent of the services. The Agreement will only be performed for the benefit of the Client. Third parties cannot derive any rights from the content of the Services performed in connection with the Agreement.
3. The information and data provided by the Client are the basis on which the Services offered by JMF and the prices are based. JMF is entitled to adjust its Services and its prices if the information provided turns out to be incorrect and/or incomplete.
4. Before JMF commences the Services, an introductory meeting will take place, unless agreed otherwise. The Client must inform JMF, either during the interview or in any event prior to commencement of the Services, of any circumstances that are or may be of importance, including any points and priorities to which the Client wishes attention.
5. When performing the Services, JMF is not obliged or obliged to follow the Client's instructions if this changes the content or scope of the agreed Services. If the instructions result in further work for JMF, the Client shall be obliged to pay the additional additional costs accordingly on the basis of a new quotation.
6. JMF is entitled to engage third parties to perform the Services at its own discretion.
7. If the nature and duration of the assignment so require, JMF shall keep the Client informed of progress in the interim via the agreed manner.
8. The performance of the Services is based on the information provided by the Client. If the information has to be changed, this may have consequences for any established planning. Under no circumstances is JMF liable for adjusting the planning. If the commencement, progress or delivery of the Services is delayed because, for instance, the Client has not supplied all the information requested or has not supplied it on time or in the required format, does not cooperate sufficiently, any advance payment has not been received on time by JMF, or there is a delay due to other circumstances that are for the account and risk of the Client, JMF is entitled to a reasonable extension of the term of delivery or completion. Any damage and additional costs resulting from a delay due to a cause as referred to above will be at the Client's expense and risk.
9. If damage occurs to JMF's equipment at the Client's location, and the damage is the result of a cause attributable to a Client and/or its employees or third parties engaged by the Client, the Client is obliged to fully compensate JMF for the damage suffered.
10. Client will receive the photos after client has paid the agreed amount in full.
11. The Client is not permitted to hire another photographer in addition to JMF.
12. If the Client is obstructed by family members or other invitees at the time of the performance of the wedding photography and JMF cannot capture certain moments as a result, JMF shall never be liable for the absence of certain photographs.
13. If the Client also books a videographer, the Client must make a choice whether the videographer or JMF is leading. If the videographer is leading, JMF may take fewer photographs.
14. If Client wishes to use the photobooth service, JMF will place the photobooth at the agreed location of Client. Client must ensure that the location is accessible by car. Power outlets should also be available. The use of the photobooth may be subject to further conditions of use and/or rental.
15. In case of boudoir photography, Client must be at least 18 years of age, to this end Client will have to provide proof of identity if requested.
Article 7 - Obligations of the Client
1. The Client is obliged to provide all information requested by JMF as well as relevant attachments and related information and data in time and/or before commencement of the work and in the desired form for the correct and efficient execution of the Agreement. Failing this, JMF may be unable to carry out and/or deliver the photographs in full. The consequences of such a situation will at all times be at the Client's expense and risk.
2. JMF is not obliged to check the accuracy and/or completeness of the information provided to it or to update Client regarding the information if it has changed over time, nor is JMF responsible for the accuracy and completeness of the information compiled by JMF for third parties and/or provided to third parties under the Agreement.
3. JMF may, if necessary for the performance of the Agreement, request additional information. Failing this JMF is entitled to suspend its work until it receives the information, without being liable to pay any compensation to the Client on any account whatsoever. In the event of changed circumstances the Client must notify JMF of this immediately, or no later than 3 working days after the change becomes known.
4. If the Client provides a location or makes its own (business) space available to JMF, the space must meet the requirements set by JMF.
Article 8 - Photography
1. The performance of photography work includes editing of photos, unless otherwise agreed.
2. Photography is an expression of creativity and taste. If Client agrees to the offer, Client also agrees to JMF's photography style and approach. JMF is entitled to carry out the work according to its own insight and creativity, taking into account the Client's wishes.
3. If, in order to execute the Agreement effectively, JMF is forced to rent additional material or space, or has to increase the number of photos, or if it appears afterwards that more time is required for editing, additional costs may be charged. JMF will inform the Client of this in good time.
4. JMF may require the Client to make additional arrangements regarding the execution, costs or duration of the assignment if, in JMF's opinion, weather conditions or other external factors prevent the effective execution of the Agreement. Such circumstances may in such case give cause to perform additional work.
5. The copyright on photographic works is vested exclusively in JMF, unless explicitly agreed otherwise. Permission to use a photographic work by the Client is only granted in writing and in advance in the form of a licence as determined by JMF. With regard to the transferability of copyrights, naming on photographic works or infringement of JMF's copyrights, Article 18 of these general terms and conditions applies.
6. The Client is not allowed to use the photos for commercial or non-profit purposes, unless otherwise agreed.
7. If the Client requests ownership on the photographic Works, this can only be transferred with the explicit consent of JMF in which case additional charges will apply.
8. The Client may only receive photographs approved and edited by JMF. Client is never entitled to 'raw', unedited photos.
Article 9 - Delivery
1. The completion date is never a strict deadline, the guideline being the agreed date, unless explicitly agreed otherwise. JMF shall deliver the photo report to be developed when, in its professional opinion, it meets the Client's specifications, which may deviate from the agreed delivery date.
2. If performance is to be carried out in phases, or if the Client must give its approval, JMF is entitled to suspend performance of the Agreement or the term of delivery until the Client has given its approval. The Client must then evaluate and approve or reject the work delivered within 7 days of delivery. If Principal does not reject the delivered work within this period, the delivered work shall be deemed to have been accepted. Client may not base an approval or rejection in a later phase on aspects that have already been approved in an earlier phase.
3. JMF shall endeavour to provide the services within the agreed term, in so far as this can reasonably be required of it. If there is urgency, the Client shall be obliged to pay the corresponding fee.
4. JMF has the right to sign all the works it has delivered or to mention its name or have it mentioned. He also has the right to use all his works, designs and all matters subject to his intellectual property rights for his own promotion and/or publicity without (prior) explicit permission from the Client.
5. The Client is not allowed to edit the delivered photos himself.
Article 10 - Additional work and changes
1. If during the performance of the Agreement it appears that the Agreement needs to be amended, or at the request of the Client further work is required to achieve the desired result of the Client, the Client is obliged to pay for this additional work in accordance with the agreed rate. JMF is not obliged to comply with this request, and may require the Client to conclude a separate Agreement for this purpose and/or to refer it to an authorised third party.
2. If the additional work is the result of JMF's negligence, JMF made a wrong estimate or could have reasonably foreseen the work in question, these costs will not be passed on to the Client.
Article 11 - Prices and payment
1. All prices are in principle exclusive of sales tax (VAT), unless otherwise agreed.
2. JMF shall perform its services in accordance with the agreed (hourly) rate.
3. If and insofar as a fixed price has been agreed for performing certain services, and performing those services results in additional work that cannot reasonably be considered to be included in the fixed price, JMF is entitled to charge the additional costs to the Client.
4. Travel expenses are included in the price. Parking costs incurred by the Contractor on behalf of the Client may be charged to the Client, unless otherwise agreed.
5. Any additional costs shall be borne by the Client.
6. The Client is obliged to fully reimburse the costs of third parties used by JMF after approval by the Client, unless explicitly agreed otherwise. This includes expenses for a location, styling, make-up artist and props.
7. The parties may agree that the Client should pay an advance payment. If an advance payment has been agreed, the Client must pay the advance payment before the performance of services is commenced.
8. The remaining amount is to be paid afterwards, unless otherwise agreed (such as partial delivery).
9. The client cannot derive any rights or expectations from an estimate issued in advance, unless the parties have expressly agreed otherwise.
10. JMF is entitled to increase the applicable prices and rates annually in accordance with the applicable inflation rates. Other price changes during the Agreement are only possible if and insofar as they are explicitly laid down in the Agreement.
11. The Client must pay these costs in a lump sum, without set-off or suspension, within the specified payment period of no later than 14 calendar days as stated on the invoice, to the account number and details of JMF made known to it.
12. In case of liquidation, insolvency, bankruptcy, involuntary liquidation or petition for payment against the Client, the payment and all other obligations of the Client under the Agreement shall become immediately due and payable.
Article 12 - Collection policy
1. If Customer does not meet its payment obligation, and has not fulfilled its obligation within the stipulated payment term of 14 calendar days, Customer being a Business shall be in default by operation of law. Customer being a Consumer will first receive a written reminder with a term of 14 days after the date of the reminder to still meet the payment obligation with an indication of the extrajudicial costs if Consumer does not meet her obligations within that term, before she is in default.
2. From the date that the Client is in default, JMF will be entitled, without further notice of default, to statutory commercial interest from the first day of default until full payment, and compensation of the extrajudicial costs in accordance with Article 6:96 of the Dutch Civil Code, to be calculated in accordance with the graduated scale from the Decree on compensation for extrajudicial collection costs of 1 July 2012.
3. If JMF has incurred more or higher costs that are reasonably necessary, such costs will be eligible for reimbursement. The integral judicial and execution costs incurred will also be borne by the Client.
Article 13 - Privacy, data processing and security
1. JMF will treat the Client's (personal) data with care and will only use them in accordance with the applicable standards. If requested, JMF will inform the data subject accordingly. Questions about the processing of personal data and further information may be sent by e-mail to email@example.com.
2. Client is himself responsible for the processing of data processed using a service of JMF. The Client also guarantees that the content of the data is not unlawful and does not infringe any third-party rights. In this context the Client shall indemnify JMF against any claim, legal or otherwise, relating to these data or the performance of the Agreement.
3. If the Agreement requires JMF to provide security of information, such security will comply with the agreed specifications and a security level that, given the state of the art, the sensitivity of the data, and the associated costs, is not unreasonable.
Article 14 - Suspension and dissolution
1. JMF is entitled to retain the data, data files and more it has received or realised if the Client has not yet (fully) met its payment obligations. This right remains in full force if a valid reason arises for JMF that justifies suspension in that case.
2. JMF is authorised to suspend the fulfilment of its obligations as soon as the Client is in default with respect to any obligation ensuing from the Agreement, including late payment of its invoices. The suspension will immediately be confirmed to the Customer in writing.
3. In such a case, JMF shall not be liable for any damage, on any grounds whatsoever, resulting from the suspension of its work.
4. The suspension (and/or dissolution) shall not affect the Client's payment obligations for work already performed. Furthermore, the Client is obliged to compensate JMF for any financial loss suffered by JMF as a result of the Client's default.
Article 15 - Force majeure
1. JMF is not liable if it cannot fulfil its obligations under the Agreement as a result of a force majeure situation.
2. Force majeure on the part of JMF means in any case, but is not limited to: (i) force majeure of JMF's suppliers, (ii) failure to properly fulfil the obligations of suppliers prescribed or recommended to JMF by the Client or its third parties, (iii) defectiveness of software or any third parties involved in the performance of the service, (iv) government measures, (v) failure of electricity, internet, data network and/or telecommunication facilities, (vi) illness of (employees of) JMF or third parties engaged by it, and (vii) other situations that, in JMF's opinion, fall outside its sphere of influence and temporarily or permanently prevent it from fulfilling its obligations.
3. In the event of force majeure, both Parties have the right to dissolve the Agreement in whole or in part. All costs incurred prior to the dissolution of the Agreement will in that case be paid by the Client. JMF shall not be obliged to compensate the Client for any losses caused by such rescission.
Article 16 - Limitation of liability
1. If any result stipulated in the Agreement is not achieved, a shortcoming of JMF shall only be deemed to exist if JMF explicitly promised this result when accepting the Agreement.
2. If there is an attributable failure by JMF, JMF is only obliged to pay any compensation if the Client has given JMF notice of default within 14 days of discovering the failure and JMF has not subsequently rectified this failure within a reasonable term. The notice of default must be submitted in writing and contain such an accurate description/substantiation of the shortcoming that JMF is able to respond adequately.
3. If the performance of Services by JMF results in JMF's liability, such liability shall be limited to the total amount invoiced under the Agreement, but only in respect of direct damage suffered by the Client unless the damage is the result of an intentional act or omission or fault on JMF's part. Direct damage is understood to mean: reasonable costs incurred to limit or prevent direct damage, the determination of the cause of the damage, the direct damage, the liability and the manner of repair. Liability is further limited to the maximum amount paid by the insurance company per claim per year.
4. JMF expressly excludes all liability for consequential damage. JMF is not liable for consequential damage, indirect damage, trading loss, loss of profits and/or losses suffered, missed savings, damage due to business stagnation, asset losses, delay damage, interest damage and immaterial damage.
5. The Client shall indemnify JMF against all claims by third parties as a result of a defect as a consequence of a service provided by the Client to a third party that consisted partly of Services provided by JMF, unless the Client can prove that the damage was caused solely by JMF's service.
6. JMF does not guarantee the correct and complete transmission of the content of and e-mail sent by/on behalf of JMF, nor its timely receipt.
7. Any claims by the Client for shortcomings on the part of JMF shall lapse if these are not reported to JMF in writing, stating reasons, within one year after the Client was aware or could reasonably have been aware of the facts on which it bases its claims. One year after the termination of the Agreement between the parties, JMF's liability lapses.
Article 17 - Confidentiality
1. JMF and the Client undertake to keep confidential all confidential information obtained in the context of an assignment. Confidentiality arises from the assignment and must also be assumed if it can reasonably be expected to be confidential information. Confidentiality does not apply if the information concerned is already public/general knowledge, the information is not confidential and/or the information was not disclosed to JMF during the Agreement with the Client and/or was obtained by JMF in any other way.
2. JMF shall always exercise due care when dealing with any business-sensitive information provided by the Client.
3. If, on the basis of a statutory provision or a judicial decision, JMF is obliged to disclose confidential information to a third party designated by the law or a competent court or third party, and JMF cannot invoke a right to privilege, JMF is not obliged to pay any compensation and does not provide the Client with any grounds for dissolution of the Agreement.
4. The transfer or distribution of information to third parties and/or publication of statements, advice or productions provided by JMF to third parties shall require JMF's written consent, unless such consent is expressly agreed in advance. The Client shall indemnify JMF against any claims by such third parties as a result of reliance on such information distributed without JMF's written consent.
5. The confidentiality obligation shall also impose on JMF and the Client any third parties they engage.
Article 18 - Intellectual property rights
1. All IP rights and copyrights of JMF including in any case, but not limited to, all designs, models and photographs are held exclusively by JMF and are not transferred to the Client unless explicitly agreed otherwise.
2. If it is agreed that one or more of the aforementioned items or works of JMF are transferred to the Client, JMF is entitled to conclude a separate Agreement for that purpose and to demand an appropriate monetary payment from the Client. Such compensation must be paid by the Client before it acquires the relevant items or works with the IP rights vested in them.
3. The Client is prohibited from disclosing and/or reproducing, modifying or making available to third parties (including use with commercial purposes) any documents subject to JMF's IP rights and copyrights without JMF's express prior written consent. If the Client wishes to make changes to items delivered by JMF, JMF must explicitly approve the intended changes.
4. JMF retains at all times the right to mention its name on the photographic works it produces (ex Article 25 of the Copyright Act). The Client is not allowed to remove or change any indication concerning copyrights, brands, trade names or other intellectual property rights from the works.
5. Unless agreed otherwise, the Client acquires a right to use the works made in its Assignment. The Client is prohibited from using the items and documents on which JMF's intellectual property rights rest other than as agreed in the Agreement. If the Client makes changes without JMF's prior written permission, the Client shall owe an immediately payable penalty of EUR 2,500 and EUR 250 for each day that the breach continues.
6. The parties will inform each other and take joint action if IP rights are infringed.
7. Any infringement by the Client of JMF's IP rights (and copyrights) shall be punished by a one-off fine in the amount of €10,000 (in words: ten thousand euros) and a fine of €100 (in words: one hundred euros) for each day that the infringement continues.
8. Client gives permission to JMF to post the photos taken on its website and/or social media channels for advertising and promotional purposes.
Article 19 - Indemnity and accuracy of information
1. The Client is itself responsible for the accuracy, reliability and completeness of all data, information, documents and/or records, in any form whatsoever, that it provides to JMF in the context of an Agreement, as well as for the data that it has obtained from third parties and which have been provided to JMF for the purpose of performing the Service.
2. The Client shall indemnify JMF against any liability pursuant to failure to comply with the obligations regarding the timely provision of all accurate, reliable and complete data, information, documents and/or records.
3. The Client shall indemnify JMF against all claims of the Client and third parties engaged by it or working under it, as well as of clients of the Client, based on the failure to obtain, or to obtain in a timely manner, any permissions required within the framework of the performance of the Agreement.
4. The Client shall indemnify JMF against any third-party claims arising from the work performed for the Client, including but not limited to intellectual property rights on the data and information provided by the Client that may be used in the performance of the Agreement and/or the Client's acts or omissions vis-à-vis third parties.
5. If the Client provides electronic files, software or information carriers to JMF, the Client guarantees that they are free of viruses and defects.
Article 20 - Complaints
1. If the Client is not satisfied with JMF's service or otherwise has complaints about the performance of its assignment, the Client is obliged to report these complaints as soon as possible, but no later than 7 calendar days after the relevant occasion that led to the complaint. Complaints can be reported verbally or in writing via firstname.lastname@example.org with the subject line "Complaint".
2. The complaint must be sufficiently substantiated and/or explained by the Client for JMF to be able to handle the complaint.
3. JMF will respond to the complaint in substance as soon as possible, but at the latest within 7 calendar days of receiving the complaint.
4. The parties will try to reach a solution jointly.
Article 21 - Applicable law
1. The legal relationship between JMF and the Client is governed by Dutch law.
2. JMF is entitled to amend these general terms and conditions and will inform the Client accordingly.
3. All disputes arising from or as a result of the Agreement between JMF and the Client shall be settled by the competent court of The Hague District Court (location The Hague) unless provisions of mandatory law designate another competent court.
's-Gravenzande, 21 October 2021