General terms and conditions of Kwinten bv

1. General provisions

1.1. To each quotation/order and to the contract, these general terms and conditions shall apply exclusively and to the exclusion of the customer's general terms and conditions, even if they are contrary to the customer's terms and conditions, except for departures agreed upon in writing, which can in no case be interpreted by the customer as a general departure from the present terms and conditions applicable to past and/or future commercial relations between the parties. Under no circumstances can our agreement be inferred from the circumstance that we would have concluded the contract without protesting against the customer's terms and conditions or similar provisions.

1.2. By accepting the quotation and/or placing an order, the customer is irrefutably deemed to be familiar with these general terms and conditions and to accept them without reservation.

1.3. The nullity / unenforceability of a provision contained in one of the articles of these terms and conditions shall in no way affect the enforceable character of the other provisions and Fotostudio Kwinten undertakes to replace the provision in question with a valid / enforceable provision that comes as close as possible to the intention of the parties.

2. Intellectual property

2.1. Unless expressly provided otherwise, we retain the (intellectual) property (cable, audiovisual exploitation, private copy, publishing, etc.) on all our works. Original digital files, negatives, transparencies, sketches, layout and slides remain our property. The risk, including all risks of loss, destruction and damage, of the work delivered passes to the client from the time of delivery.

2.2. Since the cession of a work does not imply the cession/transfer of the copyrights over it, nor can it be assumed that it does, any reproduction, publication, exhibition or other form of use is possible only with our prior written consent and the mention of our name, and is strictly limited to the description given in the present document.

Fotostudio Kwinten grants the customer a revocable (except in case of violation of the license terms), non-exclusive and non-transferable right to use our works in accordance with the terms of this article 2.2 (hereinafter, the “License.”).

Under no circumstances can the customer invoke the License outside its statutory commercial activity. Practically, the customer is prohibited any kind of use or action that is not explicitly provided for Book XI Economic Code, in particular Title 5 in favor of the user or not explicitly permitted by the agreement, including:

• making permanent or temporary, whole or partial, unauthorized reproductions of the works;
• editing, modifying or adapting the works;
• pass on or distribute the works, put the works online, e.g. on the Internet, or any other communication of the works to the public;
• any form of distribution, including renting or lending the works;
• commercializing the works or any other works based on the works;

2.3. If (certain) intellectual property rights are transferred, such transfer shall not take effect until the agreed price has been paid. It is the sole responsibility of the customer to take such measures as may be necessary to protect the transferred rights, and/or make them enforceable against third parties.

2.4. The transfer mentioned in article 2.3 does not affect the right of Fotostudio Kwinten to apply and exploit the general principles, ideas, etc. underlying the services / their subject matter for other purposes without restriction, either for itself or for third parties. Nor does the transfer mentioned in article 2.3 affect the right of Fotostudio Kwinten to undertake, for itself or third parties, assignments similar or identical to those done or to be done for the benefit of the client.

2.5. The customer must respect the moral rights attached to our works. Our name (Fotostudio Kwinten) must be clearly and unambiguously mentioned with respect to any reproduction. The client thus undertakes to respect the integrity of our works, and in particular to faithfully reproduce the colors and not to mutilate or distort them without our prior consent.

2.6. In the event of a violation of its obligations under this article by the customer - or its director/manager or appointee for whom the customer is acting on its behalf - the customer shall owe Fotostudio Kwinten a lump-sum compensation of 250 Euros per violation without prejudice to Fotostudio Kwinten's right to be compensated as provided for in the SOFAM Tariff or up to the amount of its actual damages if these damages are higher than the aforementioned lump sums and without prejudice to its right to bring other claims such as a cessation claim.

SOFAM rates
A lump-sum minimum compensation of 1) 200 %, 2) 100%, 3) 300%, 4) 200% of the basic right calculated according to the SOFAM Tariff, with a minimum of 125 euros, respectively, shall be due in case of 1) use without prior authorization, 2) use without mentioning the name of the author and/or of his right holder, 3) use with name signature with a name other than that of the real author and/or of his right holder, 4) violation of the integrity of the work.

2.7. This Article shall remain in effect for a term of ten (10) years after the end of the Agreement.

3. Ordering, concluding and executing the agreement

3.1. Photos, catalogs, leaflets or other publicity documents provided by Fotostudio Kwinten have no contractual value. Offers remain valid for one month.

3.2. The agreement is deemed to be concluded from the moment Fotostudio Kwinten has explicitly accepted or started the assignment. Changes to the agreement must be made in writing and shall always be subject to the prior and express approval of Fotostudio Kwinten.

3.3. We undertake to respect the terms of the order form faithfully and to the best of our ability. Fotostudio Kwinten provides its services in accordance with the criteria of the means commitment and does not give any guarantee for particular results.

3.4. The customer guarantees that he possesses all rights, titles and licenses / authorizations required in order to allow Fotostudio Kwinten to provide the services and about which the customer will have to inform himself in any case. The use of our works is at the sole responsibility of the client. He alone is responsible for the necessary permits regarding the persons and goods depicted on these works, and for the texts and captions associated with their use. All costs associated with the customer's obligations are at his expense.

3.5. If the execution is suspended or interrupted due to circumstances due to the client or his appointee, Fotostudio Kwinten shall determine when it can restart the services, without any compensation for delay.

3.6. Without being liable for any compensation, Fotostudio Kwinten may judge that the execution cannot take place due to external factors beyond the control of Fotostudio Kwinten and / or due to poor / faulty information / default by the client. In this case, the services / their object will still be charged to the customer, who will compensate them.

3.7. Once the agreement is concluded, Fotostudio Kwinten has the right to charge a minimum order contribution of up to 3x the price of the photo session with a minimum of €450,00 in addition to the start-up cost of the photo session.

4. Deliveries / force majeure

4.1. If no delivery period has been agreed upon, we undertake to deliver within a reasonable period corresponding to the customs of the profession. If the agreed delivery period is exceeded by more than twenty-one (21) days solely due to reasons attributable solely to us, and provided that the customer has not made any changes to the terms of the order form, we undertake to reduce the agreed price by 10 %. If the customer requests to shorten the delivery period, we reserve the right to increase the original amount of the order by at least 50 %.

4.2. Studies, preliminary designs, proofs, delivery at sight - All our studies, designs, preliminary designs and proofs (photographs, drawings, sketches, models, texts, videos, etc...) that are not followed by a final order within the stipulated period will be invoiced to the customer at the agreed hourly rate, plus costs incurred. In this case, no use, in any way, is permitted.

4.3. Until full payment by the customer of all amounts due by him under the agreement, the goods (carriers of the works) remain the property of Fotostudio Kwinten, even if the goods have already been processed, and in case of non-payment or incomplete payment, the unpaid goods can be retrieved at any time without the consent of the customer. Once the goods are delivered or from the notification to the customer that he may pick up the goods, the buyer bears all risks including all risks of loss, theft, destruction and damage. Storage of the goods pending collection by the customer is therefore at the customer's risk.

4.4. Negatives, slides, documents, digital or otherwise, and miscellaneous items entrusted to us by the client as part of an order are held by us without guarantee before, during and after the services. A separate charge may be made for storage of goods. We are not obliged to keep the positives, negatives or digital files in our archives once the photos, videos or other documents have been delivered. This also applies to alternative versions of the photos or videos taken. If we do so, it is only for our archives, which we manage at our discretion. There will be a charge for research or reorders. However, copies can be kept for the customer for a fee. This must be explicitly mentioned on the invoice.

4.5. In the event of force majeure or an incident which reasonably prevents Fotostudio Kwinten from fulfilling its commitments and which cannot be attributed to it, Fotostudio Kwinten reserves the right respectively to extend the delivery / execution period or to terminate the agreement with immediate effect, by operation of law and without prior judicial intervention, by registered notice to the customer, without Fotostudio Kwinten having to prove the unforeseeability of this situation and without being liable for compensation.

Force majeure includes fire, flooding, bad weather conditions, war, riots, strike, blockade, forced closure of the company, illness, accidents, a problem of internal organization of the company, import or export ban, transport difficulties, delayed supply/lack of supply from suppliers, and all this both at Fotostudio Kwinten as well as at the suppliers, at the suppliers or subcontractors or other third parties involved as well as non-performance by the aforementioned third parties.

5. Collection

Collection of the goods ordered must be made within fourteen (14) days of notification that the order is ready for collection.

6. End of the Agreement

6.1. The customer has the right to unilaterally cancel the agreement subject to compensation from Fotostudio Kwinten for the goods / services already delivered, as well as a fixed and irreducible fee in the amount of 25% (excl. VAT) of the part not yet delivered, as obligatory consideration for exercising this unilateral right of cancellation. If no concrete order has been placed or order form signed yet, a minimum order of 6 times the price of the photo session or start-up cost of the photo shoot will be taken into account.

6.2. In the event that the agreement is terminated at the customer's expense, Fotostudio Kwinten is entitled to payment for the goods / services already delivered, as well as a fixed and irreducible compensation in the amount of 25% (excl. VAT) of the part not yet delivered, this subject to the right of Fotostudio Kwinten to claim greater compensation if it can demonstrate greater damage. Fotostudio Kwinten also has the right to charge compensation to the value of all time performed and costs incurred.

6.3. Fotostudio Kwinten reserves the right, without prior notice of default, to suspend all deliveries as well as to terminate the agreement with immediate effect, by operation of law and without prior judicial intervention or prior notice of default as far as the not yet executed part is concerned, by registered notice to the customer, in case of non-payment on the due date of an invoice as well as in case of bankruptcy, partial or total cessation of activity, liquidation or insolvency of the customer or in case of any change in the legal situation of the customer.

7. Liability

7.1. Complaints must be sent to us by registered mail within seven (7) days of the delivery date, otherwise the delivery will be considered accepted.

7.2. Fotostudio Kwinten shall only compensate the client for damages, (i) resulting from a defect in the services / their object, or (ii) suffered by mistake, all subject to what is stipulated in the other provisions of this Article 7.

7.3. Fotostudio Kwinten guarantees the hidden defects of the services delivered by it / their object that become manifest for six (6) months from the delivery, or for three (3) years from the delivery with respect to customer-consumers. The customer must report any defect that becomes apparent to Fotostudio Kwinten by registered letter within one month. Late notification implies that the customer is no longer entitled to a guarantee.

7.4. If a complaint is found to be justified by Fotostudio Kwinten, Fotostudio Kwinten shall, without being held to any further compensation, either take back / repair / replace the services / their object and / or proceed to return or receive a partial refund of the price for the non-conforming part of the assignment.

7.5. If the liability (both with respect to its pre-contractual, extra-contractual or contractual liability) of Fotostudio Kwinten is held liable, it shall in any case be limited to covering the direct damage with a maximum of the total sums (excluding VAT) invoiced by Fotostudio Kwinten for the services / their object for which the aforementioned liability is held. Liability for any form of indirect damage such as purely financial damage, loss of profit, loss of customers, loss of working hours with respect to goods / services for which Fotostudio Kwinten's liability is retained, damage to goods other than those which are the subject of the agreement, claims of third parties etc. is excluded.

7.6. The customer accepts that color deviations are possible due to technical limitations. Unless expressly provided otherwise, delivery shall take place at our address. The photographic and graphic works, as well as any other object, are transported at the customer's risk and expense. The latter is also responsible for the works entrusted to him and for their use.

8. Pricing and Payment

8.1. The prices always exclude the tax charges which are borne by the customer. Our price is calculated on the prices of raw materials and wages on the date of the order form. We reserve the right to adjust our prices in the event of any increase in any of these factors. Additional work and supplements are of course charged separately.

8.2. With composite price quotations, there is no obligation on the part of Fotostudio Kwinten to deliver a part at a corresponding part of the price quoted for the whole.

8.3. Any invoice not paid on the due date shall be increased, ipso jure and without prior warning or formal notice, by an interest on arrears of 8.5 % per year, as well as by a penalty of 10 % of the outstanding balance of the invoice, with a minimum of 125 Euros, all this without prejudice to all other damages due by the client as a result of his default. This lump sum compensation is independent of the compensation for copyright infringement and of the procedural and legal costs.

8.4. In the event of late payment, any discount granted shall expire. In the event of non-payment of an invoice on the due date, all other claims against the customer not yet due shall become due and payable by operation of law and without prior warning or notice of default.

8.5. Fotostudio Kwinten reserves the right to make delivery/execution contingent upon payment of an advance or full price.

8.6. All invoices are deemed accepted if they are not disputed by the customer by registered mail within eight (8) calendar days of the invoice date.

8.7. Under no circumstances can payments be suspended or compensated in any way without the written and prior consent of Fotostudio Kwinten.

9. Miscellaneous

9.1. Those provisions expressly stated to survive the term of the Agreement, for whatever reason, as well as those provisions intended to survive the term of the Agreement including, without limitation, Article 2 (Intellectual Property) and Article 7 (Liability), shall remain in effect after the end of the Agreement, for as long as necessary for their purpose.

9.2. In case of dispute, only the courts of the place where Fotostudio Kwinten has its registered office are competent.