Article 1: Definitions
In these general terms and conditions, the following terms are used with the meaning stated below, unless stated otherwise.
1.1 Contractor: pindakaasstudio, registered in the trading register of Chamber of Commerce, 53 13 66 08.
1.2 Client: Any party that takes a service from or has an agreement with pindakaasstudio.
1.3 Content: the contents of posts on social media or on a website, including images, text & video material.
1.4 Photographic work: photographic works as referred to in the Aw 1912, or other works in the sense of Aw 1912, which can be aligned with the aforementioned photographic works.
1.7 Social Media: all internet applications with which it is possible to share information in the form of text, video, image and music in a user-friendly way.
Article 2: General
2.1. These general terms & conditions apply to every offer and agreement between pindakaasstudio and the client to which pindakaasstudio has declared these terms & conditions applicable, insofar as the parties have not expressly deviated from these conditions in writing.
2.2 These terms & conditions are also applicable to agreements where pindakaasstudio needs to involve third parties.
2.3 These general terms and conditions are known to both parties at the start of the agreement
2.4 Deviations and additions to these general terms and conditions are only valid if agreed in writing between both parties.
2.5 If any clause of these general terms and conditions is void or is nullified, the other clauses of these general terms and conditions will remain in full force. pindakaasstudio and the client will then agree on new clauses to replace the void or nullified clauses, whereby the purpose and intent of the original clauses will be observed as much as possible.
2.6 If there is a lack of clarity about the interpretation of one or more clauses of these general terms and conditions, then the explanation must take place ‘in the spirit’ of these terms & conditions.
2.7 If a situation arises between the parties that is not regulated in these general terms and conditions, this situation must be assessed ‘in the spirit’ of these general terms and conditions.
Article 3: Quotes & offers
3.1 The Client guarantees the correctness and completeness of the data provided by or on its behalf to pindakaasstudio on which pindakaasstudio bases its offer. The Client will always make sure the requirements that the performance of pindakaasstudio must meet are correct and complete.
3.2 All offers and quotations from pindakaasstudio are free of obligation, unless a deadline for acceptance has been set in the offer. If no acceptance period has been set, no rights can be derived from the quotation or offer in any way if the product to which the quotation or offer relates is no longer available in the meantime.
3.3 pindakaasstudio can not be abide to quotations or offers if the client can reasonably understand that the quotations or offers, or any part thereof, contain an obvious mistake or error.
3.4 If the acceptance deviates (whether or not on minor points) from the offer included in the quotation or offer, pindakaasstudio is not bound by it. In that case, the agreement will not be concluded in accordance with this deviating acceptance, unless pindakaasstudio indicates otherwise.
3.5 A composed quotation does not oblige pindakaasstudio to perform part of the assignment against a corresponding part of the stated price. Offers or quotations do not automatically apply to future orders.
Article 4: Price, invoice & payment
4.1 pindakaasstudio invoices 30% before the project starts, with the balance paid upon completion prior to delivery. Payment of the deposit is required by the client before starting on any work.
4.2 Payment by The Client is required within 14 (fourteen) days of receipt or invoice from pindakaasstudio. pindakaasstudio accepts payment by direct deposit and the bank account details will be made available to you when the invoice is sent. Monthly payments are billed at the beginning of each month.
4.3 Rates are exclusive of VAT and other levies that are or will be imposed by the government. Rates are valid only for 2018. Necessary costs and/or additional work must be paid by the the Client.
4.4 All use of the work of pindakaasstudio, in any shape or form, is prohibited until the Client has paid any of the invoices which might be outstanding.
4.5 If no fixed price has been agreed, pindakaasstudio charges an hourly rate of € 70 excl. VAT, travel and accommodation costs and any other costs. If third parties raise the prices outside the sphere of influence of pindakaasstudio, pindakaasstudio is entitled to pass this increase on to the Client. Think, for example, of increasing taxes, levies and material costs.
4.6 If the pindakaasstudio has not received the amount due within the period specified in 4.2, the Client will be in breach and therefore liable for interest at the statutory rate plus 2%.
4.7 If the Client is in breach of any of its obligations under the agreement,
including any infringement of copyright, it will be liable for all judicial and extra judicial costs incurred by pindakaasstudio when acquiring payment.
4.8 If the Client is in omission in the timely fulfillment of his obligations, then all reasonable costs incurred in obtaining payment are billed to the Client. The extrajudicial costs are calculated on the basis of what is customary in the Dutch collection practice.
4.9 However, if pindakaasstudio has incurred higher costs for collection that were reasonably necessary, the costs actually incurred will be eligible for reimbursement. Any legal and execution costs incurred will also be billed to the Client. The Client also owes interest on the collection costs due.
Article 5: Start, work scope, execution, turnaround times & end of agreement
5.1 Unless a starting date is included in the agreement, an agreement is concluded on the day that pindakaasstudio has received the agreement signed by the Client.
5.2 pindakaasstudio is under the responsibility of The Client from the time of reporting for duties, and throughout the booking. All reasonable care will be taken to ensure work is completed to the highest achievable standard.
5.3 pindakaasstudio will take all reasonable care to check proofs carefully for accuracy in all respects, ranging from spelling to technical illustrations. However, it is considered the responsibility of The Client to check all artwork carefully before final sign off and publishing.
5.4 pindakaasstudio agrees to provide freelance creative services to the Client to the scope, quality, deadline and prices as outlined between them in writing via email or in a formal contract.
5.5 Anything request not listed in writing via email or in a formal contract is not included. Any reasonable requests for additional work will be considered. Any requests for changes must be made by the Client in writing. Any change to the scope of the work after acceptance by pindakaasstudio may be subject to additional charges. Should such changes negate any part of the work already completed at the time of the changes, the Client accepts responsibility for payment for any work completed to date.
5.6 Pinda & Kaas agrees to:
- Carry out work to the scope, quality, deadlines and prices as agreed via written communications or in a formal contract.
- Provide original, high-quality content as requested by the Client.
- Follow any special instructions provided by the Client and agreed by pindakaasstudio.
- Treat the Client with professionalism, courtesy, honesty, and integrity at all times.
- Respond to any communications within a reasonable timescale, normally the same day.
The Client agrees to:
- Provide supporting & relevant information, topics, guidance, ideas, and other material as requested by pindakaasstudio to allow for creation of the work.
- Answer any questions asked by pindakaasstudio
- Provide prompt feedback on created content as requested by pindakaasstudio.
- Promptly pay the deposit and fees as stated and invoiced by pindakaasstudio.
5.7 Upon completion of the work to the client’s satisfaction, and payment of any remaining fees, this contract will be considered fulfilled. After completion of the work, pindakaasstudio bears no more responsibility to the work and the client is free to do with it as they wish.
5.8 The Client is always responsible for the accuracy, completeness and consistency of the information provided to pindakaasstudio. Inaccuracies, incompleteness and inconsistencies are for the account and risk of the client.
5.9 The client shall ensure that all data, of which pindakaasstudio indicates that these are necessary or of which the Client should reasonably understand that these are necessary for the execution of the agreement, are provided to pindakaasstudio in reasonable time. If the data required for the execution of the agreement have not been provided to pindakaasstudio in time, pindakaasstudio has the right to suspend the execution of the agreement and / or the additional costs resulting from the delay according to the rates then applicable to charge the Client. The implementation period does not start before the Client has made the data available to pindakaasstudio. pindakaasstudio is not liable for damage of any kind, because pindakaasstudio has assumed incorrect and / or incomplete information provided by the Client.
5.10 pindakaasstudio has the right to have certain work done by third parties if and insofar proper execution of the agreement requires.
Article 6: Complaints
6.1 Complaints regarding the work of pindakaasstudio must be reported to pindakaasstudio in writing/by email as soon as possible, within a maximum of ten working days of its delivery. pindakaasstudio has the right to substitute the rejected work with good work within a reasonable period, unless this would cause disproportionate damage to the Client.
Article 7: Copyright
7.1 The copyright to any work created by pindakaasstudio remain with pindakaasstudio until any outstanding balance for the work is made in full. When pindakaasstudio is paid for, full copyright and any related rights pass to the Client. At that point, the Client takes full ownership of the work and may make any changes and publish the content wherever they wish.
7.2 The Client must deal with any work / data / information in such a way that it can not be used improperly by third parties. In connection with this, the client is only obliged to use the designs in the manner as agreed.
7.3 pindakaasstudio reserves the right to use the knowledge gained through the execution of the work for other purposes, in so far no confidential information is brought to the knowledge of third parties.
7.4 pindakaasstudio reserves the right to use parts of developed content in later projects.
7.5 pindakaasstudio and any subcontractors (third parties) reserves the right to use the content developed for the Client in whole or in part for the purpose of promotional acquisition purposes.
7.6 The Client is responsible for arranging, prior to publication, any necessary legal clearance of materials pindakaasstudio prepares. pindakaasstudio will not be held liable for any legal infringements as a result of artwork being distributed or published under the direction of The Client.
7.7 Any unauthorized use of work done by pindakaasstudio is deemed to be an infringement of pindakaasstudio’s copyright.
7.8 Any infringement entitles pindakaasstudio to claim compensation of at least three times the licence fee usually charged by pindakaasstudio for such type of use, without losing any right to claim compensation for other damage (including the right to compensation for all direct and indirect damage and all judicial and extra-judicial costs actually incurred).
Article 8: Licence
8.1 Permission to use a Photographic Work by the Client will be granted
exclusively in writing/by e-mail in the form of a licence, of which the nature and scope is described by pindakaasstudio in the offer and/or the confirmation of the commission and/or the relevant invoice.
8.2 If the scope of the licence is not specified, it will never extend beyond the right to one single use, in original form and for a purpose, circulation and method as intended by the parties at the time they enter into the agreement, in accordance with pindakaasstudio’s interpretation.
8.3 Exclusive use must always be agreed explicitly in writing and is not covered by the right to use referred to in Article 8.2.
8.4 The Client is not permitted to transfer the right to use described in this article to third parties unless pindakaasstudio has granted written permission in advance.
8.5 Unless otherwise agreed, the Client is not entitled to grant sub-licences to third parties.
Article 9: Reference to name and Personality Rights
9.1 The client will, if applicable, state the full name of pindakaasstudio in its publications / statements / social posts of the developed content. The name of pindakaasstudio must be clearly credited alongside the developed content, or included elsewhere in the publication with reference to the developed content.
9.2 In the event of the copying or publication of a Photographic Work the Other Party will, at all times, observe the Photographer’s personality rights in accordance with Article 25, section 1, subsection c and d of the Aw.10.3
9.3 In the event of any infringement of pindakaasstudio’s personality rights ex Article 25 of the Copyright Act, including the right to be named, the Client will owe compensation of at least 100% of the licence fee usually charged by pindakaasstudio for such type of use, without losing any right to claim compensation for other damage (including the right to compensation for all direct and indirect damage and all judicial and extra-judicial costs actually incurred).
Article 10: Liability & rights of 3th parties
10.1 pindakaasstudio makes every effort to maintain the highest possible work standards, however cannot accept responsibility for any loss, expense or liability of any kind incurred whilst preparing work for The Client in a freelance capacity. To the extent permitted by law, pindakaasstudio shall not be liable to the Client or to any third party for any loss or damage arising directly or indirectly in connection with the provision of services. The Client will indemnify and holds harmless pindakaasstudio from and against any claims, costs, expenses, negligence, actions or suits suffered, sustained or incurred by the Client or any third party. This includes, without limitation, interruptions caused by acts of Nature, or any other circumstances beyond reasonable control, any lost profits, business interruption, loss of data or otherwise, even if expressly advised of the possibility of such damages.
10.2 pindakaasstudio is not liable vis-à-vis the Client for claims by third parties and/or damage resulting from the use and publication of our work, except in the event of gross negligence or intent on the part of pindakaasstudio.
10.3 pindakaasstudio’’s liability is, in any event, limited to the invoice amount or, if and insofar related to insured damage, to the amount of the sum actually paid out by the insurance.
10.4 Direct damage is exclusively means reasonable costs to determine the cause and extent of the damage, insofar as the determination relates to damage in the sense of these conditions, any reasonable costs incurred due to the defective performance of pindakaasstudio, to the extent that these can be attributed to pindakaasstudio and reasonable costs incurred to prevent or limit damage, insofar as the client demonstrates that these costs have led to limitation of direct damage as referred to in these general terms and conditions. For damages, such as but not limited to loss of profits and / or stagnation damage, which is an indirect consequence of the goods and / or services provided by pindakaasstudio, pindakaasstudio is only liable for the maximum amount that the insurer of pindakaasstudio pays for this damage.
10.5 The exclusions and limitations referred to in this article do not apply if the damage is the result of intent or deliberate recklessness of employees of pindakaasstudio or third parties engaged by pindakaasstudio.
10.6 Unless performance by pindakaasstudio is permanently impossible, the liability of pindakaasstudio arises due to imputable shortcoming only if the Client gives pindakaasstudio immediate written notice of default, whereby a reasonable period for the purification of the shortcoming is made, and pindakaasstudio will continue to be accountable in the fulfillment of its obligations after that term. The notice of default must contain a detailed description of the shortcoming, so that pindakaasstudio is given the opportunity to respond adequately.
10.7 Condition for the existence of any right to compensation is always that the Client reports the damage to pindakaasstudio in writing within 96 hours of the occurrence thereof.
Article 11: Bankruptcy & moratorium
11.1 pindakaasstudio and the Client are each entitled to terminate the agreement with immediate effect if the Client becomes bankrupt or is granted a moratorium.
11.2 In the event of the bankruptcy of the Client, pindakaasstudio will have the right to terminate the licence.
Article 12: Confidentiality
12.1 pindakaasstudio agrees not to misuse or disclose any confidential information that may be made available by The Client.
12.2 Any documents that the client provides to pindakaasstudio that are not intended to be included in the final work will be kept confidential. Any work created by pindakaasstudio that is not intended to be published or distributed publicly via a website, social media, or some other means will be kept confidential, and not shared with anyone outside pindakaasstudio. Any NDA agreement provided by the Client and signed by pindakaasstudio supercedes this clause.
12.3 pindakaasstudio may link to publicly distributed or published work from her website, portfolio, social media accounts or other areas, unless requested not to by the Client. Any such requests will be honored.
Article 13: Dissolution and cancellation of the agreement
13.1 Should The Client wish to cancel/terminate the agreement and discontinue any work in progress, The Client must notify pindakaasstudio immediately of this intention. Hours worked to that point will be invoiced. In the case of cancellation/termination, outstanding invoices are required to be paid within 7 (seven) days of the invoice issue date.
13.2 These terms can only be varied, amended or altered by written agreement between pindakaasstudio and The Client.
13.3 If the work is cancelled, the client will be liable to pay any fees in full for the creation and production of the work to date. Any cancellations must be made in writing, and provide a 2 weeks notice.
13.4 If, after an agreement has been concluded, the Client cancels the order in whole or in part, pindakaasstudio is entitled to charge all costs incurred in connection with that assignment to the Client, with a minimum of 50% of the costs still to be paid. pindakaasstudio will, after payment of the costs, hand over all content already developed to the Client.
13.5 If the client does not fulfill his obligations, pindakaasstudio has the right to fully or partially suspend the execution of the agreement and to charge the resulting costs according to the usual rates, all this without prejudice to the right of pindakaasstudio to exercise any other legal and / or agreed right.
13.6 The mere exceeding of a delivery term or completion date does not put pindakaasstudio in default. In all cases, pindakaasstudio will only be in default due to time-out after the Client has given notice of default in writing. The notice of default must contain as complete and detailed a description of the shortcoming as possible. pindakaasstudio must be offered a reasonable period in which to excecute the agreement.
13.7 If one of the parties, after a written summon by the other party, remains in default to comply to an obligation, the other party is entitled, without further notice or judicial intervention, to cancel the relevant agreement with immediate effect, and without compensation towards the other party.
Article 14: Force majeure
14.1 None of the parties is obliged to fulfill any obligation, if he is prevented from doing so as a result of force majeure, that is to say: a shortcoming, which can not be attributed to one of the parties and is not due to his fault and also not by virtue of the law, legal acts or in society is at his expense. In the event of force majeure, the party concerned will inform the other party in writing, stating the cause, the nature, the expected duration of the force majeure and the provisions of the agreement that can not be fulfilled as a result. The execution of the relevant provisions will be suspended during the force majeure.
14.2 Force majeure also means: (I) force majeure of suppliers of pindakaasstudio (II) defect of goods, equipment, software or materials of third parties whose use by the Client is prescribed to pindakaasstudio, (III) government measures, ( IIII) power failure, internet failure, computer network or telecommunication facilities, (IIIII) war, job occupation, strike and general transport problems.
14.3 If the force majeure situation lasts longer than two months, the parties will try to reach an agreement about changes to the provision (s) of the agreement suspended by force majeure. In the absence of such agreement within one month, either party may terminate this agreement without being obliged to hold any compensation towards the other party. pindakaasstudio, however, reserves the right to payment of goods already delivered, work performed and / or services provided.
Article 15: Changes and additional work
15.1 If pindakaasstudio has performed work or other performances at the request or with the prior consent of the Client that fall outside the content or scope of the agreed activities and / or performances, these activities or performances shall be compensated by the Client in accordance with the agreed rates and failure to do so according to the usual rates of pindakaasstudio. pindakaasstudio is never obliged to comply with such a request and may require that a separate written agreement be concluded for this.
15.2 Due to activities or performances as referred to in this article, the agreed or expected time of completion of the service and the mutual responsibilities of the parties can be influenced. The fact that during the execution of the agreement (the demand for) additional work occurs is never the reason for the client to terminate or dissolve the agreement.
15.3 pindakaasstudio will inform the Client about the financial consequences of the extra work or performances as referred to in this article.
Article 16: Indemnity
16.1 The client agrees to hold pindakaasstudio harmless for any such damages that may arise from pindakaasstudio’s work. In no event shall pindakaasstudio be liable for any direct, indirect, punitive, incidental, special consequential damages whatsoever arising out of or connected with the use or misuse of their work product. pindakaasstudio assumes no responsibility for any special, incidental, indirect, or consequential damages of any kind, or any damages whatsoever (including without limitation, those resulting from her work product or from: (1) user or client reliance on the materials or documents produced (2) costs of replacement content (3) loss of use, data, or profits (4) delays or business interruptions, (5) and any theory of liability, arising out of or in connection with the use or performance of pindakaasstudio’s work whether or not pindakaasstudio has been advised of the possibility of such damages.
16.2 If pindakaasstudio should be approached by third parties for that reason, then the Client is obliged to assist pindakaasstudio both in and out of court and to do everything that may be expected of him in that case without delay. Should the Client fail to take adequate measures, then pindakaasstudio is entitled, without notice of default, to proceed to this. All costs and damage on the part of pindakaasstudio and third parties thereby arise, are fully at the expense and risk of the Client.
Article 17: Choice of law and forum
17.1 All matters governed by these General Terms and Conditions are subject to Dutch law.
17.2 Any dispute concerning the wording and explanation of these General Terms and Conditions and a legal relationship between pindakaasstudio and the Client will be brought before the court with relevant jurisdiction in the Netherlands.