Terms and conditions | direct images

General Terms and Conditions

of the Dutch Professional Association of Film and Television Makers (Nederlandse Beroepsvereniging van Film- en Televisiemakers, NBF)

and

Association for Audiovisual Contacts (Vereniging Audiovisuele Kontakten, VAK)

GENERAL; DEFINITIONS

Article 1

1.a These general terms and conditions apply to all quotations for the provision of services and deliveries, as well as agreements relating thereto, by freelance collaborators in the creation of audiovisual productions. In these general terms and conditions, a freelance collaborator is understood to mean a person who, either alone or with others, as a natural person or through a legal entity, operates an independent business consisting of carrying out work commissioned by third parties, therefore other than as an employee in permanent or temporary (paid) employment.

1.b In these general terms and conditions, an audiovisual production, an audiovisual, or an AV is understood to mean a work created by cinematographic-mechanical or electronic means in the sense of copyright law, such as can be recorded by means of film tape, videotape, tape/slide process, or in any other manner.

1.c In these general terms and conditions, the client is understood to mean the party who commissions a freelancer to manufacture, edit, and/or process carriers of image and/or sound or to perform other activities in the creation of an audiovisual production.

1.d These general terms and conditions apply to all quotations for the provision of services and deliveries as well as agreements relating thereto, by freelance collaborators in the creation of audiovisual productions. In these general terms and conditions, a freelance collaborator is understood to mean the person who, either alone or with others as a natural person or through a legal entity, operates an independent business, consisting of carrying out work commissioned by third parties, therefore other than as an employee in permanent or temporary (paid) employment. In these general terms and conditions, an audiovisual production, an audiovisual or an AV is understood to mean a work created by cinematographic-mechanical or electronic means in the sense of copyright law, such as can be recorded by means of film tape, videotape, tape/slide process, or in any other manner. In these general terms and conditions, the client is understood to mean the party who commissions a freelancer to manufacture, edit, and/or process carriers of image and/or sound or to perform other activities in the creation of an audiovisual production.

1.e In these general terms and conditions, carriers of image and/or sound are understood to mean physical means on which image and/or sound can be recorded, such as audiotape, videotape, photographic, cinematographic, and similar material.

1.f A reference to the client’s own general terms and conditions shall remain unaffected, provided the client has offered the contractor a reasonable opportunity to review those general terms and conditions and insofar as those general terms and conditions take into account the legitimate interests of the contractor, as also expressed in these general terms and conditions, and, considering those interests and the other circumstances of the work intended in the assignment, are not unreasonably onerous for the contractor.

Insofar as the client’s aforementioned general terms and conditions do not contain provisions that are included in the present general terms and conditions, the relevant provisions of the present general terms and conditions shall apply in any case.

1.g All assignments accepted by the contractor and further agreements, including the present general terms and conditions, shall be governed by Dutch law; quotations shall be deemed to have been issued in the Netherlands and agreements shall be deemed to have been concluded in the Netherlands.

QUOTATIONS, PRICES

Article 2.

2.a All quotations made by the contractor, in whatever form, are non-binding, unless explicitly stated otherwise in writing, and in that case are binding only until the date specified in the quotation.

2.b The contractor reserves the right to refuse assignments without stating reasons.

2.c The data, ideas, synopses, proposed elaborations, diagrams, calculations, etc., provided by the contractor with the quotation remain the property of the contractor and are, where applicable, protected by copyright; the client is not authorized to disclose these to third parties.

2.d Information provided to the contractor by third parties which subsequently proves incorrect cannot be held against the contractor, nor can an obvious error in the contractor’s own statement or in the quotation or subsequently submitted calculations, drawings, price lists, or other documents relating to the quotation.

2.e Unless explicitly agreed otherwise in writing, the prices quoted by the contractor are exclusive of VAT and are based on the level of purchase prices, hourly rates, wages, labor costs, social security and government charges, freight, insurance premiums, and other costs prevailing at the time of the quotation or the date of acceptance of the assignment, respectively.

2.f In the event of an unforeseen increase in one or more of the aforementioned factors and similar factors, the contractor is entitled to increase the quoted or agreed price accordingly, subject to any applicable statutory regulations.

2.g If a contractor has designed plans and/or cost estimates at the client’s request and the assignment nevertheless does not proceed, then the client is obliged to reimburse the contractor for the costs actually incurred, including their fee.

AGREEMENT

Article 3.

3.a Except as provided below, an agreement shall only be formed upon written acceptance of the assignment.

3.b Any subsequent agreements supplementing or amending the agreement shall only bind the contractor after their written confirmation.

3.c For activities for which, due to their nature and scope, no quotation or order confirmation is sent, the invoice shall also be considered as the order confirmation.

3.d Where these general terms and conditions refer to the client, this also includes their representatives, authorized agents, and successors under universal or particular title, even if their authority is not apparent from any register or otherwise.

3.e Each agreement is entered into under the suspensive condition that the client proves sufficiently creditworthy for the financial fulfillment of the agreement, at the sole discretion of the contractor.

3.f The contractor is entitled, upon or after accepting the assignment, before performing further, to demand security from the client that they will fulfill all their obligations, including payment obligations.

3.g The contractor is authorized, if deemed desirable or necessary for the proper execution of the assignment, to engage third parties.
The fees and costs of these third parties shall be charged to the client.
However, before engaging third parties, the contractor must obtain the client’s consent.

TIMEFRAMES

Article 4.

4.a The timeframes for service provision and/or delivery mentioned in quotations, confirmations, and agreements are provided by the contractor to the best of their knowledge and experience; they shall be observed by the contractor as much as possible; they are non-binding unless agreed as binding.

4.b If it appears that a binding deadline will nevertheless be exceeded, or if it appears that a non-binding deadline will be excessively exceeded, the contractor shall contact the client as timely as possible to consult on the further execution of the assignment.

4.c If the results of the contractor’s work are not accepted by the client after the expiry of the agreed term, they shall be available to the client at the client’s expense and risk.
The contractor is obliged to inform the client thereof and to state the maximum storage period.
The contractor is entitled to charge the client storage fees.

4.d If assignments are carried out or items are delivered at the client’s request within a shorter timeframe than initially agreed, any associated extra fees and costs shall be charged to the client.

DURATION OF WORK AND REMUNERATION

Article 5.

5.a The duration of the work extends from the day the contractor commences preparations until its full completion, and otherwise for as long as, and during the days or periods, agreed with the client.

5.b The remuneration for the contractor’s work is expressed as a monetary amount per hour, per day, per week, or per month.

5.c In case an hourly rate must be derived from a daily, weekly, or monthly amount, or vice versa, an hourly rate is understood as:
1/10th of the agreed daily fee,
1/50th of the agreed weekly fee,
1/216th of the agreed monthly fee.
However, for half a workday, the fee is always at least 75% of the agreed daily fee.

5.d Guidelines for the remuneration of the contractor’s work may be attached as an appendix to these general terms and conditions.
Said guidelines apply for the period indicated therein.

5.e Payment of the amounts due to the contractor shall be made at the end of each day, week, or month, as agreed.

REIMBURSEMENT OF COSTS

Article 6.

6.a Insofar as travel time is considered working time, the costs that the contractor must incur if the client has not arranged transport shall be reimbursed by the client to the contractor.

6.b Subsistence costs of the contractor, including the costs of meals and refreshments, shall be reimbursed to the contractor insofar as they are not paid directly by the client.

6.c Payment of costs shall occur simultaneously with the payment of remuneration as referred to in Article 5(e).

WORKING AND REST TIMES

Article 7.

7.a The contractor’s working time per full workday is normally a maximum of 10 hours; the working time per half day is normally a maximum of 5 hours. The working time per consecutive period of 7 days (7×24 hours) is a maximum of 55 hours.

7.b Any day of the week can be a workday; however, parties may agree that a surcharge on the rate shall apply for work on Saturdays, Sundays, and public holidays.

7.c Notwithstanding the provisions under (a) and without prejudice to the further provisions in this article, it may be agreed that the working time per day is extended.
The extensions referred to here, insofar as they exceed 10 hours per workday, count as overtime.
For overtime up to a maximum of five hours, a surcharge of 50% on the rate applies, and for hours worked thereafter, a surcharge of 100% applies.

7.d Notwithstanding the provisions in sub (c) of this article, it may be agreed that overtime hours are compensated with paid rest hours, provided that:

compensation with paid rest hours can only take place within the contract period and no later than 10 days after the overtime was performed;
as soon as it is established that the overtime will be reimbursed in money, this payment shall take place no later than the next agreed payday for the remuneration;
paid rest hours always immediately precede or immediately follow the rest hours prescribed in sub (e) of this article.

7.e Between the end of a workday and the beginning of the immediately following workday, there is an uninterrupted rest period of at least 10 hours.
Per consecutive period of 7 days (7×24 hours), there is an uninterrupted rest period of at least 36 hours.
The start time of this long rest period must be agreed upon timely, but at least 48 hours in advance.

7.f Lunch and dinner time are considered working time.
At least half an hour is allocated for lunch; at least one hour is allocated for dinner.

7.g Travel time between the client’s permanent place of business and locations outside that place of business is considered working time.
Travel time between the contractor’s usual place of residence or abode and the client’s permanent place of business is also considered working time, unless otherwise agreed.

WORK INTERRUPTION

Article 8.

8.a Under special circumstances, the contractor is free to interrupt work for a short period.

8.b Such special circumstances are considered to be:

the marriage of the contractor, or of one of their children, parents, brothers, or sisters,
the childbirth of the contractor’s spouse or partner, or of the female contractor herself,
the death of persons belonging to the contractor’s household, as well as children, parents, parents-in-law, brothers, or sisters not belonging to the household,
the funeral or cremation of the persons referred to in the previous paragraph,
the fulfillment of an obligation imposed by law or government without monetary compensation that cannot take place during the contractor’s free time.

8.c The contractor shall inform the client of the relevant event as timely as possible.
The duration of the work interruption shall be determined by mutual agreement between the parties. Unless otherwise agreed, the work interruption is, however, at least one day per event.

8.d The work interruption as referred to in this article is at the contractor’s own expense.

ILLNESS

Article 9.

9.a The contractor who is unfit to perform their work due to illness or other cause is obliged to inform the client immediately.

9.b In case of illness or other incapacity for work of the contractor, the client has the right to terminate their agreement with the contractor with immediate effect and without judicial intervention as soon as the contractor has been prevented from performing their work due to their illness or other incapacity for work for longer than 3/10ths of the total agreed working time.

9.c Furthermore, in case of absence due to illness or other incapacity for work, the contractor loses any claim to the remuneration agreed between the parties for that period of absence.

RISKS, EXTRA RISKS

Article 10.

10.a The contractor assumes that the client bears and insures at their own expense the risk of loss or damage to the negative, reversal film, video, or other original audiovisual material, and the loss of production hours or days due to any cause whatsoever, as well as any other business losses and any liability related to their business operations, including towards the contractor themselves.

10.b If the execution of the assignment entails risks for the contractor that exceed the normal risks involved, the client is liable to the contractor in this regard; the client shall insure these risks at their own expense.

10.c Regardless of any insurance, the contractor has the right to refuse the execution of an assignment if the work involves special risks for them, of which they were not informed or could not reasonably have been aware before accepting the assignment, without thereby voiding the client’s obligations towards the contractor.

10.d The method of transport, packaging, etc., of equipment and materials shall be determined by the contractor to the best of their knowledge and experience if no specific instructions have been given by the client.
Unless explicitly agreed otherwise in writing, shipment and transport of items by the contractor are at the client’s expense and risk, even if the carrier’s consignment notes, transport addresses, etc., contain a clause stating that all transport damage is at the sender’s expense and risk.

FORCE MAJEURE

Article 11.

11.a Force majeure in these general terms and conditions means any circumstance independent of the will of the client and/or the contractor, as a result of which fulfillment of the agreement cannot reasonably be demanded from the other party, or a failure in the fulfillment of the agreement cannot be attributed.
Force majeure includes in any case: war, threat of war, civil war, riot, flood, strike, lockout, excessive absenteeism of personnel or other collaborators of the contractor, transport difficulties, fire, government measures, business disruption at the contractor’s premises or those of their suppliers or subcontractors.

11.b If, in the contractor’s opinion, the force majeure will be of a temporary nature, they have the right to suspend the execution of the agreement until the circumstance causing the force majeure no longer exists.

11.c If, in the contractor’s opinion, the force majeure is of a permanent nature, the parties may arrange for the dissolution of the agreement and its consequences.

11.d The contractor has the right to invoke force majeure even if the circumstance causing the force majeure occurs after their performance should have been delivered.

CLIENT PREVENTION / CANCELLATION

Article 12.

12.a The client must, when prevented from using the agreed services of the contractor who has reserved time for those services (option), either through their own fault or through a circumstance not being force majeure, immediately inform the contractor of this prevention, and no later than 48 hours before the agreed work is scheduled to commence.
If this deadline is exceeded, the relevant option becomes a definitive booking.
In the event of a cancellation as referred to here which is communicated to the contractor later (within 48 hours), the contractor retains, as in the case of a definitive booking, their full right to the agreed remuneration.
However, in the case of a ‘good weather option’ (mooi-weer-optie), a notice period of 12 hours applies.

12.b Insofar as the client cannot receive compensation therefor under insurance policies they have taken out, they are released from their payment obligations towards the contractor if the prevention results from a special circumstance as defined below, and if they have observed a reasonable cancellation period in connection with that circumstance.
Such special circumstances include, among others:

non-receipt or late receipt of subsidy commitments or order confirmations;
failure to obtain permits or visas;
illness, accident, or death of actors or essential, difficult-to-replace collaborators or studio personnel; production overruns due to these and similar circumstances.
However, if the client has failed to take out and maintain insurance against risks as referred to in this paragraph, they are not released from their payment obligation towards the contractor.

12.c During workdays that can no longer be cancelled, the contractor shall remain available to the client. They are obliged to perform any replacement work assigned to them, provided, however, that this replacement work reasonably resembles the agreed services in type and nature.

12.d However, the contractor may inform the client that they do not wish to remain available during the period referred to in the previous paragraph (c); the contractor then forfeits any claim to payment of the remuneration agreed for that period.

CONTRACTOR PREVENTION / AVAILABILITY

Article 13.

13.a The contractor shall remain available to the client at the agreed hours, days, weeks, or months or during the agreed periods; parties may agree that the contractor is not available to the client during certain periods.

13.b The contractor is not available to the client during the work interruption as referred to in Article 8.

13.c In the event the contractor wishes to commit to third parties on days when they do not need to be available to the client, they are nevertheless obliged to consult with the client about these commitments beforehand.
If the client indicates to the contractor that the contractor’s availability on the day(s) in question is still required, the contractor shall not enter into said commitments.

COMPLAINTS

Article 14.

14.a Any complaints can only be processed by the contractor if they have been made known to them directly and in writing within 10 working days after the provision of the service or the delivery of the item, with a precise statement of the nature and grounds of the complaints.
Within the same period, the material to which the complaint relates must be in the possession of the contractor.
Complaints about invoices must also be submitted in writing within 14 days of their dispatch date.

14.b After the expiry of the mentioned period without a complaint being submitted, the client shall be deemed to have approved the service provided or the item delivered, or the invoice, respectively.
Complaints received after the expiry of said period need not be processed by the contractor.

14.c If the contractor finds the complaint justified, they are obliged, at their option, either to provide monetary compensation, the amount of which shall be determined by mutual agreement, or to provide new services or make a new delivery, while maintaining the existing agreement.

14.d Submitting a complaint does not release the client from their payment obligations towards the contractor.

LIABILITY

Article 15.

15.a The contractor is not liable for damage, direct or indirect, of any kind whatsoever, caused by the total or partial loss or destruction, during manufacture, editing, or processing by the contractor, of carriers of image and/or sound or other items belonging to the client.
The same applies to other forms of service provision by the contractor to or for the benefit of the client with regard to the client’s items in general.
In accordance with the provisions of Article 10, the risk for said material and said items rests with the client.

15.b If the client expressly makes this known in writing to the contractor, the contractor shall, where possible, insure the risks referred to in paragraph 15.a of this article at the client’s expense.
The contractor’s liability, should it exist despite the provisions in the preceding paragraph of this article, shall in this case also not extend beyond passing on to the client the insurance payments received by the contractor.

PAYMENT; INTEREST AND COSTS

Article 16.

16.a Payment must be made net, without discount or set-off, by deposit or transfer to a bank account designated by the contractor, within 30 days of the invoice date.
The value date indicated by the bank is decisive and is therefore considered the date of payment.

16.b In cases where the client is declared bankrupt, applies for a moratorium on payments (surséance van betaling), is placed under administration or receivership, or, if the client is a natural person, dies or is placed under guardianship (curatele), if all or part of the client’s assets are seized, if the client acts contrary to any obligation arising from the law or from the agreement with the contractor, including these general terms and conditions, if the client proceeds to terminate, cease, liquidate, or transfer their business or changes the objective or actual activity of their business, the contractor has the right, merely by the occurrence of one of these circumstances, to demand immediate and full payment of any amount owed by the client based on work performed or deliveries made by the contractor, without any summons or notice of default being required, all without prejudice to the contractor’s right to compensation for costs, damages, and interest and to dissolve the agreement concluded with the client.

16.c If payment of the contractor’s invoice has not taken place within the period mentioned in sub (a) of this article, the client is in default by operation of law.
The date of dispatch of the invoice shall, barring proof to the contrary, be deemed equal to the date of the invoice.

16.d From the day the client is in default, they owe the contractor interest equal to the statutory interest rate (wettelijke rente) until the day of full payment of the principal sum, interest, and costs.

16.e All judicial and extrajudicial costs incurred and to be incurred for the collection of the contractor’s claims shall be borne by the client, including the costs of legal assistance.
The extrajudicial collection costs amount to at least 15% of the amount owed by the client, including the aforementioned interest.

RETENTION OF TITLE

Article 17.

17.a Ownership of items to be delivered by the contractor shall not pass to the client until immediately after full payment of all claims that the contractor has against the client on any account whatsoever.

17.b In the cases referred to in Article 16(b), the contractor has the right, without any prior summons or notice of default and without judicial intervention, to terminate the assignment and/or to reclaim as the contractor’s property anything that should still be delivered by the contractor but has not yet been paid for, or not fully paid for, without prejudice to the contractor’s rights to demand compensation for any loss or other damages.
In such cases, any other claim the contractor may have against the client is also immediately due and payable in full.

COPYRIGHTS, MECHANICAL REPRODUCTION RIGHTS, ASSIGNMENTS REGARDING EXISTING WORKS, INDEMNITY

Article 18.

18.a The contractor whose work is deemed creative in nature holds, regarding their contribution to the creation of the AV production, both the moral rights (persoonlijkheidsrecht) and the exploitation rights, the latter valued at a share of the exploitation revenue of the audiovisual work to be further agreed upon with the client.

18.b Subject to their right to a share in the exploitation revenue of the audiovisual work, the contractor is obliged to transfer to the client the exclusive right of publication and reproduction of the result of their work – insofar as this is considered a work within the meaning of the Copyright Act (Auteurswet) or a contribution thereto – in its fullest legal scope and without reservation of any related authority, and otherwise to waive towards the client any claim the contractor might assert regarding the publication and reproduction of the result of their work.
However, the contractor does not have these obligations regarding rights they may have transferred to designated bodies for protection and collection.

18.c The further details of the contractor’s right to a share in the exploitation revenue of the audiovisual work, particularly regarding the size of the share, its payment, the manner of providing information about exploitation results, as well as the contractor’s right of audit and the manner of its exercise, shall be agreed separately by the parties and recorded in writing.

18.d The transfer of rights and waiver declaration referred to in this article shall be laid down in a separate deed as soon as the contractor’s work on the relevant AV production has ended.
Anticipating that transfer, the contractor grants, by the mere fact of their collaboration on the relevant AV production, exclusive permission to the client to deal with the result of their work as if the requirement of paragraph (b) of this article has been met.
The contractor also authorizes the client to exercise the rights and powers arising from copyright for the protection and enforcement against third parties of the rights and powers to be transferred, and to act to that end, at their own expense and if necessary in the name of the contractor, both in and out of court.

18.e The contractor is entitled to mention of their name in the customary part of the AV production, indicating their function, in a manner that is clearly legible through design, size, placement in the frame, and duration of display.
However, the contractor is free to stipulate with the producer [client] that their name not be mentioned in the credits, accompanying leaflets and brochures, press releases, and other publications relating to the AV production.

18.f In case of an assignment to synchronize a carrier of image and sound, the produced sound may only be publicly performed together with the relevant images.

18.g With regard to the music and/or text associated with a carrier of image and sound, the mechanical rights (fixation or reproduction rights) for screening/public disclosure shall be arranged by the client.
This also applies to the relevant rights if and insofar as the contractor may have transferred other rights to designated bodies for protection and collection.

18.h For assignments involving the editing or processing of carriers of image and/or sound on which a pre-existing copyrighted work is recorded, liability in this regard rests with the client.

18.i The client indemnifies the contractor against all claims by third parties, whether or not of a copyright nature, arising from the work performed by the contractor in relation to the assignment provided.

CONFIDENTIALITY

Article 19.

19.a Subject to the explicit written consent of the client, the contractor undertakes, with regard to the AV production to which their work relates, both during its duration and after its completion, as well as with regard to anything that must be considered confidential at the client’s premises:

not to make any disclosures to third parties,
not to grant third parties access to documents entrusted to their care or otherwise obtained.

INTERIM TERMINATION, DISSOLUTION

Article 20.

20.a The contractor has the right to terminate the agreement entered into with the client with immediate effect and without judicial intervention if the client provided a misleading or incorrect impression of the type and content of the relevant AV production before or upon acceptance of the assignment.

20.b Each party has the right to terminate the agreement entered into with immediate effect and without judicial intervention if the other party, after notice of default, refuses or is unable to fulfill its obligations under the agreement.

DISPUTES

Article 21.

21.a All disputes arising from the agreement between the contractor and the client, including the present general terms and conditions forming part thereof, or from further agreements relating thereto, or the execution thereof, between the parties or their successors under universal or particular title, whether legal or factual, of any nature whatsoever, even if considered as such by only one of the parties, shall be subject to the jurisdiction of the ordinary courts.
However, the parties remain authorized to submit their dispute to arbitration, provided they agree thereto within 14 days after the most diligent party proposes such arbitration in writing to the other party.

FINAL PROVISION

Article 22.

22.a The rule included in Article 1(f), second sentence, shall continue to apply in the event that the client’s general or specific terms and conditions did not contain provisions as referred to in that sentence when the present general terms and conditions came into effect, but such provisions were subsequently included therein.
Consequently, in such a case, the client cannot invoke the relevant later-established provisions of their own general terms and conditions; instead, the relevant provisions of the present general terms and conditions shall apply then and for that case.