Definitions mentioned in these General Terms and Conditions
Aw: Auteurswet 1912 [Dutch Copyright Act of 1912]
Aerial photograph: photographic works as referred to in Article 10 section 1 subsection 9 Aw, or other works covered by the Aw that can be equated with the said photographic works.
Image Carrier: the carrier on which a Photographic work (whether or not identifiable with the naked eye) is recorded, such as a slide, negative, print, duplicate copy, Polaroid, CD-rom, DVD, Blu-ray or memory stick.
Aerial photographer: the user as defined by Book 6, Article 231 of the Dutch Civil Code.
Other party: the other party as defined by Book 6, Article 231 of the Dutch Civil Code.
Usage: copying and/or publication as defined by Article 1 in conjunction with Articles 12 and 13 of the Aw.
Application for these General Terms and Conditions
These General Terms and Conditions apply to all legal relationships, where RPX4U intercedes, between an Aerial Photographer and Other Party, including offers, confirmations of orders and oral or written agreements, even after the termination of an agreement, unless the license conditions or the Aerial photographer explicitly let know that these Terms and Conditions do not apply, and other Terms and Conditions are given.
The copyright as well as the right of publication is based (in accordance with the provisions of the Copyright Act) to the Aerial photographer whose work is sold, unless otherwise expressly in the licensing terms is agreed.
Payment / delivery.
Existing aerial photograph material (stock photographs) will only be delivered by RPX4U after a payment of the customer is received, after which the order will be processed directly and in accordance with the specifications of the customer.
The Other party can request an offer for making of a aerial photographs through the RPX4U website. These offers are entirely free of obligation unless expressly stated otherwise. The Aerial photographer has the right to withdraw his offer up to two working days after receiving acceptance of this offer.
The Aerial photographer is authorized to request from the Other party a for RPX4U and the Aerial photographer acceptable security about the payment before the work carried out (further). Refusal of giving such security gives the Aerial photographer the right to terminate the Agreement without the necessity for any judicial intervention and without the obligation to compensation anything.
Complaints regarding the Aerial photographs supplied should be reported to the RPX4U and Aerial photographer in writing as soon as possible, within a maximum of ten working days of its delivery. The Aerial photographer has the right to substitute the rejected work with good work within a reasonable period, unless this would cause disproportionate damage to the Other Party.
In the event that the usage on the Internet is agreed, the Other Party shall ensure that the size of the Aerial photographs shown does not exceed as agreed.
The Other Party shall not make any copies of the Aerial photographs – digital or otherwise – other than those that are strictly required for the agreed usage on the Internet. At the completion of the agreed usage, the Other Party shall erase or destroy the used (working) copy(ies) of the Aerial photographs.
The Other Party shall provide the Aerial photographer with unlimited access free of charge to each part of its website on which the Aerial photographs are reproduced. If special arrangements need to be made to achieve this, then the Other Party will ensure these are made.
Use by the Other Party of a Aerial photographs requires prior written consent in the form of a license the nature and scope of which is described by the Aerial photographer on the RPX4U website and/or in the offer and/or the confirmation of the commission and/or the relevant invoice.
If the scope of the license is not specified, it shall not 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 the interpretation of the Aerial photographer.
In the absence of a specifically-agreed method of publication and/or described purpose and/or described circulation, the only authority deemed to have been conferred is that which is included in the license as standard or which, given the nature and scope of the agreement, necessarily follows from this.
If the Aerial photographer has given permission for image manipulation, electronically or otherwise, the result may only be used once explicit written consent has been obtained.
Standard non-commercial use. (currently only available)
The Order party has the right to use the aerial photographs for non-commercial purposes only. Non commercial activities and website, that generating revenue by advertising are excluded/
standard commercial use. (will shortly be available).
The other Party has the right to use the aerial photographs for commercial purposes.
Unless otherwise agreed, the Other Party is not entitled to grant sub-licenses to a third party.
Infringement of copyright
Each unauthorized use of Aerial photograph is deemed to be an infringement of the copyright of the Aerial photographers that publish their aerial photographs on the RPX4U website. The Aerial photographer is empowered demand compensation for damage, which according to the General Terms and Conditions.
Any infringement entitles the Aerial photographer to claim compensation of at least three times the license fee usually charged by the Aerial photographer for such type of use, without losing any right to claim compensation of other damages (including the right to compensation of all direct and indirect damages and all judicial and extra-judicial costs actually incurred).
The name of the Aerial photographer should be clearly credited alongside the Aerial photographs used, or included elsewhere in the publication with reference to the Aerial photographs.
Failure to comply with this condition entitles the Aerial photographer to claim compensation of at least 100% of the license fee usually charged by the Aerial photographer for such a type of use, without losing any right to claim compensation of other damages (including the right to compensation for all direct and indirect damages and all judicial and extra-judicial costs actually incurred).
If the Other Party has obtained written consent to reproduce in whatever form the Aerial photographs, it shall ensure that the name of the Aerial photographer accompanies these reproductions. In the case of digital/electronic copies, the Other Party shall also ensure that the entire metadata that was included in the digital file by the Aerial photographer – information according to the EXIF, IPTC, XMP and ICC standards - shall be preserved.
RPX4U serves as an intermediary; RPX4U is not liable in case of problems with the quality of the delivered pictures. RPX4U can only act as a mediator between the customer, the Aerial photographer and other parties.
The Aerial photographer is not liable for indecent or not fulfilling its obligations as a result circumstances beyond one's control. These circumstances are among others; war, danger of war, mobilization, riots, martial law, strikes or exclusion, fire, accident or illness of staff, restrictions of public authorities, weather conditions. The Aerial photographer is not liable for any loss suffered by the Other Party unless such loss is caused by the gross negligence or deliberate act of the Aerial photographer or any third party acting on his behalf. Force majeure, gives the Aerial photographer and RPX4U the right, to terminate the agreement or to extend the time of delivery, without the Other parties right to claim for compensation for damages. Any liability is limited to the amount of the invoice or, if and insofar as damage is insured, up to the amount of the sum actually paid out under the insurance policy.
RPX4U, The Aerial photographer and the Other Party are each entitled to terminate the agreement with immediate effect if the other party becomes bankrupt or is granted a moratorium. In the event of the bankruptcy of the Other Party, RPX4U and the Aerial photographer has the right to terminate the license , unless the consequences of doing so would be in breach of the principles of reasonableness and fairness.
Choice of law and forum
All matters governed by these General Terms and Conditions are subject to Dutch law. The Vienna Sales Convention 1980 (CISG) shall not apply. Any dispute concerning the wording and explanation of these General Terms and Conditions and a legal relationship between the Aerial Photographer and the Other Party shall be brought before the court with relevant jurisdiction in the Netherlands.
Reference: these General Terms and Conditions are based on the General Terms and Conditions of the fotografenfederatie.