Terms & Conditions

Klik hier voor de Nederlandstalige versie.

ARTICLE 1 – APPLICABILITY OF THESE GENERAL TERMS AND CONDITIONS

These General Terms and Conditions govern the legal relationship between Kaat DM BV, with registered office at Sint-Jansvest 27 bus 301, and registered in the Crossroads Bank of Enterprises under the number 0767.541.994, Register of Legal Entities Ghent, Ghent division, info@kaatdm.com (hereinafter referred to as the “Photographer”) and the natural person or legal entity to whom the Photographer provides its services and/or works (the “Client”) (hereinafter referred to as “the General Terms and Conditions“).
These General Terms and Conditions will apply to all proposals and/or invoices issued by the Photographer, as well as to the agreements between the parties, to the exclusion of any other terms and conditions of the Client. In the event of any contradictions between stipulations on the proposals and/or invoices, only the stipulations in the most recent document shall be binding on the parties. Deviations from these General Terms and Conditions are only shall be binding on the Photographer subject to explicit, prior and written acceptance by the Photographer. In the event of any contradiction between these General Terms and Conditions and any separate written agreement between the Photographer and the Client, the provisions of the separate written agreement shall prevail.
If the Client places an order, it means that the Client fully and unreservedly agrees to these General Terms and Conditions. If the Client is acting as an intermediary for a third party, the Client can never invoke the undertakings between him/her/itself and his/her/its own client with respect to the Photographer in order to release itself from these General Terms and Conditions and/or the agreement between the Client and the Photographer (the “Agreement”).

ARTICLE 2 – ORDERS, FORMATION OF THE AGREEMENT AND ADVANCE PAYMENT

All proposals by the Photographer shall be without obligation and shall not binding upon her. They should not be regarded as an offer, but only as an invitation to the Client to place an order.
The Agreement or any other commitment shall only come into being if and to the extent that the Client has digitally signed the Photographer’s proposal in agreement (the “Order”) via the online platform provided by the Photographer for that purpose. Within thirty (30) days of receipt of the Order, the Client shall pay an advance invoice to the value of 30% of the Total Price, unless the parties have agreed otherwise in writing, in accordance with the payment procedures laid down in Article 3. If the advance invoice is not paid in full within the above-mentioned term, the Photographer shall be entitled to unilaterally terminate the Agreement with immediate effect, without judicial intervention, without prior notice of default, and without owing any damages of any kind. In doing so, the Photographer reserves the right to claim compensation for costs, interest and damages incurred by the Photographer.

ARTICLE 3 – THE ASSIGNMENT

The Agreement is established in accordance with the terms and conditions contained therein, and in particular for the specifically agreed date (or dates) and location.
In the event that in connection with the execution of the assignment, the Photographer must be present on location for more than five (5) hours on the date (or dates) specifically agreed upon, the Client must provide a hot and/or fresh vegetarian meal (without meat, fish or shellfish) for the Photographer. In the event that the Client does not provide a meal, the Photographer will leave the location during the execution of the assignment in order to purchase a meal. The time spent on this by the Photographer shall form an integral part of the performance of the assignment.
The execution of the assignment by the Photographer shall constitute an obligation to use best endeavours and the Photographer shall deliver the performance and works in accordance with her own creative and technical insights. The Photographer shall perform the assignment in accordance with applicable professional standards and declares that she will, by her own standards, provide quality work and performance.
The Photographer shall have sole discretion in deciding which photographs to make available to the Client. The number of photographs delivered by the Photographer to the Client will depend on the nature and duration of the assignment and shall also be freely determined by the Photographer.
The Client acknowledges having been adequately informed about the style and form of the works and performances realised by the Photographer and any failure to meet any other expectation on the Client’s part with regard to the style, form and content of the delivered works and performances cannot be invoked as a reason for non-compliant works or performances. The Client acknowledges and accepts that due to technical limitations, deviations in terms of colour and resolution may occur and the Photographer cannot be held liable for them.
In order to be valid, any objection by the Client must be sent by registered mail within seven (7) days of receiving the ordered works. Works that have not been protested against in writing and by registered mail within the time limit specified above shall be deemed to have been accepted by the Client without reservation. Works that have been used in whole or in part by the Client shall be deemed to have been accepted in their entirety, so that any protest regarding them shall be unfounded. Even in the event of (partial) payment of the Photographer’s invoice, the Client shall be deemed to have accepted the works in their entirety and without reservation and any protest shall be unfounded.
If the assignment is a wedding photoshoot, an additional wedding album may be ordered from the Photographer. When ordering, accurate and precise information must be communicated regarding the identity of the recipient of the order, the delivery address and the e-mail address to which confirmation of the order is to be sent. A natural person or legal entity that orders a wedding album with the request to deliver it to a third person shall be liable for the full payment thereof.

The Photographer shall commence the assignment of the wedding album only after a written order has been made and payment of the advance stipulated therein has been made. The Client acknowledges and accepts that this advance forms the basic price for the realisation of the wedding album and is not recoverable under any circumstances, even in the event that the wedding album is not delivered and/or upon termination of the Agreement for any reason whatsoever.

The basic price for the realisation of the wedding album includes the Photographer’s design hours and two (2) rounds of corrections.

The Client is entitled to two (2) rounds of corrections during which the Photographer will make the corrections indicated in writing by the Client. The Photographer shall not be liable for spelling, linguistic, grammatical or other errors not pointed out by the Client during the two (2) correction rounds.

All additional costs, such as but not limited to ordering additional pages, all possible additional options, additional shipping costs and any taxes, are not included and shall be borne entirely by the Client. Only once the full cost (basic price plus any additional costs) of the wedding album has been paid will the order be delivered.

The Photographer will print the design of wedding album only after it has been approved by the Client in writing.

ARTICLE 4 – RATES, PRICES AND TERMS OF PAYMENT

All performances and works shall be delivered at the Photographer’s standard rates and prices at the time that the Order is confirmed by the Photographer, except in the event of a valid postponement of the Order in accordance with Article 8.4. The Photographer’s prices and rates include the permitted use of the works.
All taxes (including VAT), duties and/or levies of whatever nature that relate to the performances and/or works delivered, including new taxes, duties and levies that would be introduced after the conclusion of the Agreement, are not included within the rates and prices of the Photographer and shall be borne in full by the Client.
In the event that the Photographer performs additional work not included within the Agreement, but which is reasonably necessary or results from an extension of the commission by the Client, the Photographer shall inform the Client thereof. The Photographer shall only proceed to perform the additional work following the prior and written acceptance of the additional work by the Client.
Costs incurred by the Photographer that are reasonably necessary for the execution of the assignment, including but not limited to travel expenses, overnight accommodation costs, catering costs and shipping costs (including express shipping costs), are not included within the agreed rates and prices and shall be borne in full by the Client. The Photographer shall be entitled to invoice an advance of these costs to the Client and, in the event of non-payment of this advance on the due date, has the right to unilaterally terminate the Agreement with immediate effect, without judicial intervention and without prior notice of default, and this without owing damages of any kind. In that regard, the Photographer reserves the right to claim compensation for costs, interest and damages incurred by the Photographer.
Unless otherwise agreed by the parties in writing, the Photographer’s invoices shall be payable no later than thirty (30) days from the date of the invoice.
Any disputes concerning an invoice from the Photographer must be sent in writing and by registered mail within seven (7) days of receipt of the invoice. Invoices that have not been disputed in writing by registered mail within seven (7) days of the invoice date shall be deemed to have been accepted by the Client without reservation and may no longer be disputed.
In the event that an event is not paid on the day it is due, the Client shall lawfully, without prior notice of default and from that date onwards, owe interest on arrears amounting to 15% of the amounted stated on the unpaid invoice (subject to a minimum of €75.00), without prejudice to the Photographer’s right to claim a higher amount of compensation subject to the provision of evidence confirming that the damage suffered has been greater.

In the event of non-payment, the Photographer is also entitled to (1) either suspend any further performance of its obligations to the Client until full payment of all past due invoices has been made, (2) or, if no payment has been occurred within seven (7) days of a notice of default being sent, to unilaterally terminate the Agreement with immediate effect and without judicial intervention, without being liable to pay compensation of any kind. In the event that the Photographer terminates the Agreement, she shall be entitled to compensation equal to the amount of the advance paid by the Client, without prejudice to the Photographer’s right to claim additional compensation for all losses or damage actually suffered by her.

ARTICLE 5 – DELIVERY AND SHIPPING

The Photographer shall deliver the photos to the Client by means of a unique link to a PicTime gallery. The Client shall be responsible for communicating accurate and correct information about the e-mail address to which the photos are to be sent.
Delivery times for supplying the photographs and wedding albums created during the performance of the Agreement are stated purely for indicative purposes. Any delay in delivery shall in no case constitute grounds for a price reduction, for the payment of compensation or for the dissolution of the Agreement. The Client acknowledges and accepts that communicated delivery times will be extended if the order and/or Agreement is modified.

If the parties agree in writing to bring forward the delivery date communicated in the quotation, order form or Agreement, the Photographer shall be entitled to an additional payment of at least 50% of the total price for the services and works delivered.

If no delivery period has been agreed upon or if the Photographer performs additional work beyond the scope of the Agreement, the Photographer shall determine the delivery period reasonably and fairly.
The Photographer shall deliver the photographs and wedding albums only upon receipt of payment, from the Client, of all invoices of the Photographer, including any interest.
If the Client has chosen to order a wedding album from the Photographer, the Client may pick up this wedding album at the registered office of the Photographer at a mutually agreed time, or have the wedding album sent by the Photographer by regular mail. Shipping costs shall be borne by the Client and risk in relation to the wedding album shall pass to the Client from the time the wedding album is shipped.

The Photographer shall not be liable for any delay, theft, loss and/or damage caused by B-post or any other third party relied upon by the Photographer to ship the photographs, wedding albums or other media.

The Photographer shall not be liable if the photographs, wedding albums or other media are sent to an incorrect or incomplete address communicated by the Client. In such cases, the Photographer shall resend the photographs, wedding albums or other media to the correct address and the Client shall be responsible for all resulting additional shipping and other costs.
Photographs and other works taken by the Photographer as part of the performance of the Agreement shall be digitally stored by the Photographer for a maximum of sixty (60) days after the invoice date.

ARTICLE 6 – LIABILITY

Except in the case of wilful misconduct or gross negligence, the Photographer shall not be liable for or obliged to compensate for any intangible, indirect or consequential damage or losses, including (but not limited to) loss of profits, loss of sales, loss of income, production limitations, postponement or cancellation of an assignment, loss of clientele or third party claims.
The Photographer shall bear no liability for any damage or loss of the photographic or other image material that is not due to wilful or gross negligence on her part and was caused by, among other things, but not limited to, any technical, system or software error or problem, development lab, manufacturing defects or x-ray scanning in an airport.
Except in cases of intent or gross negligence, the Photographer shall not bear any liability for damage, loss and any other material damage caused to persons, including the Client themselves, or objects provided by the Client to the Photographer, during the performance of the Agreement by the Photographer due to, but not limited to, falling, impacts or slipping.
The Photographer shall bear no liability for infringements of (intellectual property) rights (such as but not limited to copyrights, neighbouring rights, portrait rights, trademark rights and trade name rights) arising in the context of the performance of the Agreement. The Client shall indemnify the Photographer against any claim or (legal) action which rights holders assert against the Photographer as a result of the reproduction and/or exploitation of the Photographic and other visual material by the Photographer or the Client.
In so far as the Photographer depends on the cooperation, services and supplies of the Client or third parties or relies on third parties in the performance of her obligations, she shall not be held liable for any losses or damage arising from a fault on their part, including gross or deliberate errors.
The Photographer’s contractual and extra-contractual liability shall at all times be limited to the invoice amount.

ARTICLE 7 – FORCE MAJEURE

The Photographer is automatically released and not bound to fulfil any obligation towards her Client in the event of Force Majeure and/or External Cause, without the Photographer owing any compensation to the Client. In the event of Force Majeure and/or External Cause, the Client shall compensate the Photographer for all services and works already performed.
The terms Force Majeure and/or External Cause shall be understood to refer to: all circumstances that are not reasonably foreseeable by the Party invoking them, that are not attributable to such Party, that cannot be reasonably avoided or remedied, and that make it impossible for such Party to fulfil its obligations under the Agreement temporarily or permanently. Force Majeure applies when such circumstances occur other than as a result of any human action. External Cause exists when such circumstances result from human actions for which the Party relying on them is not responsible. The following situations, without wishing to be exhaustive, are considered Force Majeure and/or External Cause: Loss of the original digital files due to a crash, war, mobilisation, riots, atmospheric disturbances, floods, storm damage, blockage of train, water, air, or road traffic, lack of fuels, stagnation in, restriction or cessation of supply by public utilities, fire, machine breakdown and other productions, creations, works, disturbances, strikes, lockouts, governmental measures, non-delivery of materials by third parties.
In the event that the Agreement cannot be performed by the Photographer due to illness or accident, the Photographer and the Client shall seek a suitable solution by mutual agreement. If necessary, the Photographer shall endeavour to provide a replacement to the extent possible and with the agreement of the Client. In such cases, the Client shall be deemed to be contracting directly with the replacement and the Photographer can therefore no longer be held liable for any (extra)contractual shortcoming on the part of the replacement. In the event that no replacement can be found, both parties can terminate the Agreement, in which case the Client will have to compensate the Photographer for all services and works already performed.

ARTICLE 8 – CANCELLATION, POSTPONEMENT AND MODIFICATION

The Client may cancel the Order by sending an e-mail to info@kaatdm.com. The date of receipt will count as the cancellation date.
In the event of cancellation, the Client shall owe a fixed cancellation fee equivalent to the amount of the advance paid by the Client to the Photographer as provided in Article 3.3, plus compensation for any services or work already performed and/or costs incurred. In the event that the cancellation concerns a wedding photoshoot, this cancellation fee shall be increased by (i) 25% of the balance of the total invoice amount if the Client cancels less than six (6) months before the date of the assignment in question or (ii) by 50% of the balance of the total invoice amount if the Client cancels less than three (3) months before the date of the assignment in question. In the event that the cancellation concerns an assignment other than a wedding photoshoot, the cancellation fee shall be increased by a cancellation fee of EUR 250.00 if the client cancels less than one (1) month before the date of the assignment in question. This cancellation fee shall be immediately due and payable at the time of cancellation.
In the event of a cancellation and other than except in cases of Force Majeure or External Cause as defined in Article 7, the Photographer shall be owed a fixed cancellation fee equivalent to the amount of the advance payment made by the Client to the Photographer as provided in Article 3.3, without prejudice to the Client’s right to claim additional compensation for all damages actually suffered by him/her.
The Client may postpone the Order to a later date no later than six (6) months before the agreed date (or dates) of the relevant assignment (which is determined in the Agreement), on condition that the Photographer still has availability on the later date chosen by the Client. In the event that the Photographer is unavailable, the Client will have to cancel the Order in accordance with provisions set forth. In the event of postponement, the Client must pay an administrative fee of EUR 250.00 (excluding VAT) to the Photographer. If the Order is postponed, the Photographer shall forward a new proposal to the Client. The services and works yet to be performed shall be delivered at the Photographer’s current prices at the time that the proposal is digitally signed in accordance with Article 2.2.
In the event that the Order is amended, other than a postponement of the agreed date or dates, and after receipt of written confirmation thereof by the Photographer, the Client shall be legally bound to reimburse the Photographer in respect of all additional costs resulting directly or indirectly from such change. The Photographer shall only put such change into effect after the Client has signed a separate quotation or order form stating the additional costs and the Photographer has acknowledged receipt thereof in writing.

ARTICLE 9 – TERMINATION OF THE AGREEMENT

The Photographer shall be entitled to terminate the Agreement with the Client at any time with immediate effect and without judicial authorisation, without prior notice and without payment of any compensation, in the following cases: (i) unacceptable and/or inappropriate behaviour by the Client, in which regard the Photographer shall additionally be entitled to compensation of EUR 1,300.00; (ii) if the Client ceases payments, is insolvent (or applies for insolvency); (iii) in the event that the Client ceases its activities or undergoes liquidation; (iv) in the event that an attachment order is placed on all (or part of) the Client’s assets; (v) in the event that the Photographer has well-found reasons to doubt that the Client will actually fulfil its obligations towards the Photographer; or (vi) in the event that any further collaboration between the parties has become impossible. In the event of termination, the Photographer also reserves the right to claim reimbursement of all costs, interest, losses or damage suffered by the Photographer and all claims by the Photographer shall immediately fall due for payment by the Client.
The Client shall solely be entitled to terminate the Agreement with the Photographer in the event of serious fault on the part of the Photographer, on the understanding that the Client must notify the Photographer of the termination in writing and by registered mail no later than fourteen (14) days after the discovery of the serious fault.

ARTICLE 10 – INTELLECTUAL PROPERTY RIGHTS

The Client shall fully and unconditionally respect all intellectual property rights relating to the Photographer’s performance and works (including, but not limited to, copyrights, neighbouring rights, moral rights, trademark rights, trade name rights, etc.).
All intellectual property rights (including but not limited to copyrights and moral rights) relating to the works and performances created during the performance of the Agreement (including but not limited to photographs, collages, recordings and audiovisual works) shall belong exclusively to the Photographer and shall not, either in whole or in part, be transferred or licensed to the Client, its appointees, employees and/or third parties, unless otherwise explicitly agreed in writing between the Client and the Photographer.
The Client grants consent to the Photographer, within the framework of the execution of the Agreement, to capture his/her portrait, reproduce it on all possible carriers, communicate it to the public by means of all possible means of communication (including but not limited to her website, her blog, the social networking sites on which the Photographer is active) and exploit it for commercial purposes (including, but not limited to, portfolios, advertisements, social media, magazine articles, printed matter and trade show materials), and this for an indefinite period of time and in all parts of the world. The Client represents and warrants that all third parties whose portrait is captured by the Photographer within the framework of the execution of the Agreement grant consent to the Photographer for the aforementioned capture, reproduction, communication to the public and commercial exploitation of their portrait. The Client shall indemnify the Photographer in the broadest sense for every claim and (legal) action that a third party may make or bring against the Photographer in that regard.
In accordance with the exceptions in Article XI.190, 3° and 9° of the Code of Economic Law (‘CEL’), the Client is only permitted to reproduce the photos created during the performance of the Agreement for private use and to share them within his/her/its private circle. In order to make use of the Photographer’s works and performances created during the execution of the Agreement in a manner not permitted by law, the Client shall need the explicit, specific and written approval from the Photographer.
In accordance with Article XI.165, §2, 7^th paragraph of the Code of Economic Law (‘CEL’), the Client is not permitted to make any changes, including but not limited to the modification of colours and formats, to the works and performances created during the performance of the Agreement. If the Client wishes to modify the photographs supplied, the Photographer shall make the requested changes to the extent possible and in accordance with Article 8.4.
In accordance with Article XI.167/3 of the Code of Economic Law (‘CEL’), the Photographer shall be entitled to claim an additional, appropriate and equitable fee if the originally agreed fee is found to be disproportionately low in comparison to all relevant subsequent revenues of the Client resulting from the authorised use of the photographs or other works provided by the Photographer.
Each time that use is made, lawfully or otherwise, of the works and performances created during the performance of the Agreement, the Client must mention the name of the Photographer in the following manner: ‘©Kaat De Malsche’, ‘©Kaat DM’, ‘©WWW.KAATDM.COM’.
For each breach of Articles 10.4, 10.5 or 10.6, the Client shall be liable, by operation of law and without prior notice of default, to pay flat-rate damages equivalent to the SOFAM rates applicable at that time in the event of a breach, without prejudice to the Photographer’s right to claim a higher amount of compensation on condition that evidence is provided that the actual amount of the loss or damage suffered was higher.
In so far as the photographed creations themselves enjoy copyright protection, the following procedures shall apply:

a. If the Client is also the copyright owner of the photographed creation, by accepting these General Terms and Conditions, the Client gives his/her/its explicit consent for the reproduction and communication to the public of the photographed creation, without any remuneration being owed to the Photographer. This licence is valid worldwide and is not limited in time.

b. If the Client is not the copyright owner of the photographed creation, the Client undertakes to obtain the explicit consent of the copyright owner for the reproduction and public communication of the photographed creation. The Client will be responsible for paying the full remuneration that may be requested for this purpose. The Client must ensure that the licence to be obtained is valid worldwide and not limited in time. In the event that the Client fails to obtain such licence, the Photographer cannot be held liable for alleged copyright infringements.

ARTICLE 11 – CONFIDENTIALITY OF THE AGREEMENT

Confidential Information includes all information in any form (including verbal, written, graphic, electronic) exchanged between the parties under the Agreement, including but not limited to the agreed price between the parties.
The parties undertake to keep confidential all Confidential Information received from the other party during the performance of the Agreement. The parties may not disclose the Confidential Information to third parties without the written consent of the other party.
The confidentiality obligation shall continue for a period of two (2) years from the date on which the Agreement is terminated, regardless of the cause of termination.
The following shall not be considered as Confidential Information:

information lawfully obtained from a third party not bound by any duty of confidentiality or secrecy;
information that entered the public domain without the intervention or fault of the party who received it;
information required to be disclosed pursuant to a court or administrative decision.

ARTICLE 12 – PRIVACY AND DATA PROTECTION

As part of the performance of the Agreement, the Photographer may collect and process personal data of the Client or its employees or appointees. The personal data communicated by the Client shall be processed in accordance with the applicable data protection legislation, including the General Data Protection Regulation (EU) 2016/679, the national implementing legislation and the Photographer’s data protection policy that forms an integral part of the Agreement.
The Photographer may collect the following personal data for the purpose of entering into and performing the Agreement with the Client: first name, surname, address, telephone and/or mobile phone number, professional position, gender, bank account number and e-mail address. In that regard, the Photographer shall act as a data controller and shall process the data for the following purposes: client management, accounting/payment management and the management of (billing) disputes.
The Photographer shall take all reasonable measures to ensure the confidentiality of personal data communicated by the Client. The Photographer reserves the right to share personal data with its own subcontractors/processors, outside law firms or accountants and/or government agencies, for the purposes listed above or whenever the Photographer is required to do so by law. However, personal data shall never be rented out or sold to a third party. Personal data shall not be transferred to recipients located in countries outside the European Economic Area, except in the event that the Photographer is legally obliged to do so.
The Photographer shall provide data subjects with a right of access to the personal data relating to them and, if applicable, a right of correction or deletion of (erroneous) data, or another right to restriction of processing or to data portability, but only in so far as the legal conditions for this have been met. In order to exercise the above rights, the Photographer may request additional information from the data subject that is necessary to confirm the data subject or may ask the data subject to present proof of identity.
For full information regarding the collection and further processing of personal data by the Photographer, data subjects may consult the Data Protection Policy on the Photographer’s website at https://kaatdm.com/privacy-policy/. If data subjects have questions or complaints regarding the exercise of their rights and/or the processing of their personal data by the Photographer, they can always obtain further information by sending an e-mail to info@kaatdm.com. They shall also have the right to file a complaint with the supervisory authority, which in Belgium is the Data Protection Authority (https://www.dataprotectionauthority.be).

ARTICLE 13 – MISCELLANEOUS

Indivisibility. The Client may not transfer the rights and obligations arising from the Agreement and/or these General Terms and Conditions, in whole or in part, to third parties, without the prior written consent of the Photographer. Any assignment or assignment of the Client’s rights or obligations without having obtained the Photographer’s consent, shall be considered unwritten.
No waiver. The Photographer’s failure or delay in exercising any rights under the Agreement or these General Terms and Conditions shall not be deemed a waiver (whether explicit or implied, in whole or in part) nor shall it prevent the further exercise of such rights. Any waiver of a right must be explicit and be effected in writing.
Severability. The provisions of the Agreement and/or these Terms and Conditions shall always be interpreted in a manner that does not affect their validity or feasibility. Should one or more provisions be void, infeasible or unenforceable, this shall not affect the validity, feasibility and enforceability of the remaining provisions. If a clause is declared void, the parties shall negotiate a valid replacement clause that is as close as possible to the result intended by the voided clause.

ARTICLE 14 – APPLICABLE LAW AND COMPETENT COURT

All proposals, quotations, invoices and agreements to which these terms and conditions apply shall be governed exclusively by Belgian law.
All disputes shall fall under the exclusive jurisdiction of the courts and tribunals of the judicial district of Antwerp, Antwerp division.