Terms and conditions

General Terms and Conditions of Lemonize
^{dated 15 may 2010}

1. Definitions
   In these General Terms and Conditions, the following words and phrases shall have the following meanings:
   Copyright Act: the Dutch Copyright Act 1912;
   Photographic Work: photographic works as referred to in Article 10.1(9) of the Copyright Act or other works within the meaning of the Copyright Act which can be considered the same as the aforementioned photographic works;
   Lemonize: the user within the meaning of Article 6:231 of the Dutch Civil Code;
   the Other Party: the other party within the meaning of Article 6:231 of the Dutch Civil Code;
   Use: reproduction and/or publication within the meaning of Article 1 in conjunction with Articles 12 and 13 of the Copyright Act.
2. Application
   These General Terms and Conditions shall apply to all legal relationships between Lemonize and the Other Party, including quotes, confirmations of orders, invoices and oral or written agreements, including after an agreement ends, unless the Parties have expressly deviated from these Terms and Conditions in writing.
3. Quote
   Unless expressly stated otherwise, quotes shall be entirely without obligation. Lemonize shall be entitled to revoke this offer up to two working days after receipt of the acceptance of its offer. The quote shall not entail an obligation to provide partial performance in return for a proportional price.
4. Fee
   If the Parties have not agreed on any fee, the fee usually charged by Lemonize shall apply.
5. Invoice and payment
   1. The invoice shall be sent to the Other Party by e-mail as a PDF file.
   2. The invoice must be paid before the agreed delivery date for the Photographic Work.
   3. The Photographic Work shall be sent once digitally by e-mail, immediately after the invoice amount concerned has been transferred to Lemonize’s bank account.
   4. No use whatsoever of the Photographic Work in any manner whatsoever shall be allowed as long as the Other Party has not yet paid any outstanding invoice of Lemonize or has otherwise not yet completely fulfilled any obligation arising under any agreement whatsoever with Lemonize.
   5. The Other Party shall make the payments owed to Lemonize without any discount or invocation of a set-off, except for a set-off against advance payments which it has furnished to Lemonize and which the Parties have acknowledged may be set off. 
   6. If Lemonize has not received the amount owed within the time period referred to in 5.2, the Other Party shall be in default and shall therefore owe statutory interest, to be increased by 2%.
   7. If the Other Party is in default or otherwise breaches one or more of its obligations, including committing copyright infringement, it shall bear all costs to obtain payment in and out of court.
6. Audit
   1. If the fee has in any way been made dependent on facts and circumstances which must be shown by the Other Party’s accounts, Lemonize shall, after a specification by the Other Party, be entitled to have the Other Party’s accounts audited by a registered accountant/accounting consultant to be designated by Lemonize.
   2. If the result of the audit differs by more than 2% from the Other Party’s specification and statement, the expenses of the audit shall be borne entirely by the Other Party. In addition, the Other Party shall then pay Lemonize after invoicing the fee owed based on the actual information.
7. Delivery
   1. The Photographic Works shall be delivered as digital files by e-mail in JPEG format and, as from the time they are sent, shall be entirely for the Other Party’s risk.
   2. If a delivery period has not been agreed on, Lemonize shall reasonably determine this.
8. Possession/Ownership
   1. The delivered digital files of the Photographic Works shall be erased and/or destroyed by the Other Party immediately after the agreed use and shall not be stored for re-use. Non-compliance or non-timely compliance with this obligation shall not result in the loss of any of Lemonize‘s rights.
   2. Lemonize shall continue to own digital files. The Other Party shall merely be entitled to transfer of the property.
9. Copyright
   The copyright to the Photographic Works shall be held by Lemonize.
10. Licence
    1. Permission for the Other Party to use a Photographic Work shall solely be granted in writing beforehand in the form of a licence, the nature and scope of which Lemonize has described in the quote and/or order confirmation and/or invoice relating to this.
    2. If nothing has been determined concerning the scope of the licence, it shall never include more than the right to use the Photographic Work one time only, in unmodified form, on a non exclusive basis, for the purpose, number of copies and manner which the Parties envisaged in accordance with Lemonize’s understanding at the time the agreement was entered into.
    3. If there is no specifically agreed manner of publication and/or described purpose and/or described number of copies, only those rights shall be deemed to have been provided which are normally included in the licence or which necessarily arise from the nature and object of the agreement. 
    4. If permission has been given by Lemonize for electronic or other forms of image manipulation, the result may not be used until after it has provided express, written approval.
    5. An exclusive licence shall only be furnished with respect to use in the Netherlands of a complete series of Photographic Works for at most a six-month period.
11. Sub-licences
    Unless otherwise agreed, the Other Party shall not be entitled to grant sub-licences to third parties.
12. Use of the website’s digital files
    1. The digital files of the Photographic Works published on Lemonize’s website shall only be intended for viewing and/or for use as presentation material for the Other Party’s clients.
    2. Digital files with Photographic Works which have been downloaded from Lemonize’s website by the Other Party and are not used as presentation materials for its clients must be erased or destroyed by the Other Party.
    3. The Other Party must not only timely remove and/or destroy digital files which have been downloaded by it, but must also not retain any duplicate made whatsoever in any form whatsoever of these digital files with Photographic Works and shall immediately destroy such duplicates (or have them destroyed).
13. Copyright infringement
    1. Any use of a Photographic Work which has not been agreed on shall be considered an infringement of Lemonize’s copyright.
    2. In the event of infringement, Lemonize shall be entitled to compensation in the amount of at least three times the licence fee usually charged by Lemonize for such a form of use, without losing any right to compensation for other damage suffered (including the right to compensation for all direct and indirect damage and all actual court and out-of-court costs).
14. Mention of name
    1. The name www.lemonize.com must be clearly mentioned if a Photographic Work is used or must be included with a reference to the Photographic Work in the publication.
    2. If this condition is not fulfilled, Lemonize shall be entitled to compensation equalling at least 100% of the licence fee usually charged by Lemonize, without losing any right to compensation for other damage suffered (including the right to compensation for all direct and indirect damage and all actual court and out-of-court costs).
    3. If the Other Party has obtained written permission to reproduce the Photographic Work, in whatever form, it must ensure that the name www.lemonize.com is included on these reproductions. In the case of digital/electronic copies, the Other Party must also ensure that all of the metadata – as made part of the digital file by Lemonize – continues to be kept; this relates to information in accordance with the EXIF, IPTC, XMP and ICC standards.
15. Moral rights
    1. In reproducing and publishing a Photographic Work, the Other Party shall at all times respect Lemonize’s moral rights in conformity with Article 25.1(c) and (d) of the Copyright Act.
    2. If the aforementioned moral rights are infringed, Lemonize shall be entitled to compensation equalling at least 100% of the licence fee usually charged by Lemonize, without losing any right to compensation for other damage suffered (including the right to compensation for all direct and indirect damage and all actual court and out-of-court costs).
16. Internet
    1. In the event of agreed use on the Internet, the Other Party shall ensure that the dimensions of the Photographic Work shown by it on the Internet do not exceed 800 by 600 pixels.
    2. The Other Party shall not make any other copies of the Photographic Works – digital or otherwise – besides those which are strictly necessary for the agreed use on the Internet. After the agreed use is finished, the user shall erase or destroy the working or other copy(ies) used of the Photographic Work.
    3. The Other Party shall freely give Lemonize access at no cost to any portion of its website on which the Photographic Work has been shown. If special facilities are necessary for this, it shall provide them to Lemonize.
17. Voucher copy
    If a Photographic Work is published, the Other Party must immediately send a voucher copy of the publication to Lemonize at no cost.
18. Complaints
    Complaints concerning the work delivered must be stated in writing to Lemonize as soon as possible, but in any event within 10 working days after delivery of the Photographic Works. Lemonize shall be entitled to still deliver proper work to replace the rejected work within a reasonable period, unless this would result in disproportionate damage for the Other Party.
19. Lemonize’s liability
    1. Lemonize shall not be liable for any damage to and/or loss of digital files which has occurred for the Other Party, unless there was gross negligence or an intentional act/omission on the part of Lemonize or persons engaged by it.
    2. Liability shall in any event be limited to the amount of the invoice or, if and insofar as the damage is insured, the total amount actually paid out under the insurance.
20. Involuntary liquidation/Suspension of payments
    Both Lemonize and the Other Party shall be entitled to terminate the agreement immediately in the event the opposite party is put into involuntary liquidation or is granted a suspension of payments. If the Other Party is put into involuntary liquidation, Lemonize shall be entitled to terminate the licence provided, unless the consequences of this would be contrary to the principle of reasonableness and fairness.
21. Choice of law and forum
    1. All cases in which these General Terms and Conditions are applicable shall be governed by Dutch law.
    2. The Vienna Sales Convention 1980 (CISG) shall not apply.
    3. Each dispute regarding the text and interpretation of these General Terms and Conditions and a legal relationship between Lemonize and the Other Party shall be brought before the competent court in Amsterdam, the Netherlands.