Terms and Conditions

Last updated: 2 Dec 2024

These are the general terms for Partners (the Terms) from GoPhoto B.V. (GoPhoto).

These Terms are applicable to every agreement between the Partner and GoPhoto (the Agreement). Capitalised terms in the Agreement have the same meaning in these Terms and vice versa.

  1. Services
    1. The Services consist of the provision of Software, and additional services. The full Services are further specified in the Agreement.
    2. Any services not expressly described as being included in the Services will be considered to be outside the scope of the Services and will be charged to the Partner at a fee to be mutually agreed by the Parties.
  2. Prices
    1. The Partner shall pay GoPhoto the fees as described in the Agreement and the Partner shall reimburse GoPhoto for the expenses that comply with the rules in section 5.
    2. All prices mentioned by GoPhoto in the Agreement, Project Template or otherwise do not include value added tax (VAT) and any other applicable taxes and/or import duties; such taxes and/or duties shall be payable by the Partner.
    3. GoPhoto is allowed to adjust the Photo Concession Fees once per calendar year in accordance with the inflation levels in the Netherlands, as published by the Central Bureau of Statistics.
  3. Payment
    1. The fees will be paid within the term specified in the Agreement.
    2. All invoices of GoPhoto have a payment term of 30 days, unless otherwise agreed.
    3. An invoice will be considered to have been received by the Partner if e-mailed as PDF-attachment to the e-mail address(es) set out in the Agreement.
    4. If a payment obligation by the Partner is due, the Partner will automatically be in default, without a notice of default being required. In case of default, the Partner owes GoPhoto the statutory commercial interest. The interest on the payable amount is calculated from the moment that the payment is due, until the moment that the payable amount has been paid by the Partner in full. The payment of the statutory commercial interest shall not exempt the Partner from fulfilling its obligations under the Agreement.
    5. GoPhoto may set-off any payment or other obligations towards the Partner under the Agreement against claims that GoPhoto has against the Partner under the Agreement or otherwise.
  4. Indemnification, Liability and Insurance
    1. Each Party (First Party) shall indemnify, defend and hold harmless the other Party (Second Party) and its respective representatives from and against any third-party claims, liabilities and costs directly arising out of or in connection with any breach of any representations, warranties or undertakings made by the First Party under the Agreement. If seeking to rely on the foregoing indemnity, the Second Party must promptly notify the First Party in writing of a claim or suit and provide reasonable cooperation (at First Party’s expense) to First Party.
    2. The liability of each Party directly arising out of or in connection with the Agreement will, in all circumstances, be limited to the lower of:
      1. the amount paid out under such Party’s professional liability insurance policy; or
      2. the Invoice value of 1 year with a maximum sum of EUR 100,000.00.
    3. Each Party is only liable for direct damages that are unequivocally caused by a shortcoming of that Party. Each Party will not be liable under any circumstances for consequential damages, indirect damages, loss of work, loss of profits and/or business interruption.
    4. Neither Party is liable for any damages in case of Force majeure as specified in section 6.
    5. The right to claim damages shall in any event lapse twelve (12) months after the event from which the damage directly or indirectly results and for which a Party is liable.
    6. Nothing in the Agreement shall limit or exclude a Party’s liability to the extent it may not be excluded under any applicable laws, or it is the consequence of fraud, gross negligence or wilful misconduct by a Party.
    7. GoPhoto shall not be held liable for any data-related breaches resulting from the actions, omissions, or operational errors of the Partner.
  5. Term and Termination
    1. The Parties may terminate the Agreement by giving a written or electronic notification (via e-mail) to the other Party, with a notice period of sixty (60) working days.
    2. Either Party may terminate the Agreement with immediate effect by written notice to the other Party if:
      1. the other Party is declared bankrupt or has been given a suspension of payment or application for such has been submitted to a court;
      2. the control over a Party or its business is directly or indirectly transferred to a third party;
      3. the business of a Party has been shut down or liquidated; or
      4. the other Party commits a material breach of the Agreement which breach (if capable of remedy) continues for thirty (30) days of receipt of written notice from the non-defaulting Party requiring the remedy of such breach. This breach must be material to such an extent that maintaining the Agreement cannot be deemed reasonable.
    3. The Parties may terminate the Agreement with immediate effect by mutual consent.
    4. In case of early termination in accordance with this section, the Partner will pay GoPhoto on a pro-rata basis for the Services effectively rendered. All amounts which are paid in excess by the Partner will be reimbursed by GoPhoto to the Partner.
    5. Expiration or termination of the Agreement will not relieve a Party of any obligations accruing prior to the date of expiration or termination. The rights and obligations mentioned under section 4 (Indemnification, Liability and Insurance), 5 (Term and Termination), 7 (Confidentiality and non-disclosure), and 11 (Governing Law and Jurisdiction) will survive the expiration or termination of the Agreement as well as any other right or obligation which by its nature is intended to survive.
    6. Should the Partner breach the requirements under the Agreement to make timely payments or provide required approvals or documentation to GoPhoto, GoPhoto may cease work until payment, approval, or documentation is received by GoPhoto. The Timeline shall be adjusted accordingly.
    7. Should a Project be cancelled, or the Project dates moved beyond GoPhoto’s availability, the Agreement will be considered terminated and the Partner agrees to pay GoPhoto in full for the Services which the Partner had already begun working on pursuant to the Timeline.
  6. Force Majeure
    1. Force majeure means certain circumstances beyond a Party’s reasonable control which causes a delay in, or obstruct the fulfilment of (a part of) a Party’s obligations without its fault or negligence, such as:
      1. acts of God, flood, drought, earthquake or other natural disaster;
      2. epidemic or pandemic;
      3. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
      4. nuclear, chemical or biological contamination or sonic boom;
      5. any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary license or consent;
      6. collapse of buildings, fire, explosion or accident; and
      7. interruption or failure of utility service.
    2. If a Party cannot comply with its obligations because of Force Majeure it:
      1. may suspend its obligations for as long as the Force Majeure continues;
      2. will notify the other Party of the Force Majeure and the estimated delay.
    3. If the Force Majeure continues for more than two (2) interrupted months, either Party may terminate the Agreement in writing, without any liability to the other Party.
  7. Confidentiality and Non-disclosure
    1. The Parties must maintain absolute confidentiality about everything that they learn from one another in the context of these Terms, the Agreement, the IP, and any and all further information received by the other Party (the Confidential Information).
    2. The Parties shall not:
      1. disclose Confidential Information to any legal entity or natural person;
      2. use any Confidential Information for its own purposes or for any other purposes, other than the lawful purposes of the Agreement; and
      3. through any material failure to exercise due care and diligence, permit or cause the disclosure of any Confidential Information to any legal entity or natural person.
    3. The Parties may disclose Confidential Information if:
      1. required by applicable law or stock exchange rules or by any competent authority, without there being a reason to challenge the imposed disclosure, but in any case, only after consultation between the Parties about the timing and content of such disclosure;
      2. released at the date hereof or hereafter the related Confidential Information has become public knowledge otherwise than through the improper disclosure by any of the Parties; and
      3. disclosed to affiliated companies, employees or any advisers solely on a ‘need to know’ basis, provided that the Party disclosing Confidential Information requires the relevant party to agree to the obligation set out in this section 7.
    4. A Party may only make public statements about the Agreement with the other Party’s written permission.
  8. Notices, Communications
    1. Any notice or other communication required or permitted under the Agreement, shall be in English and:
      1. sufficiently given through email, on the email addresses specified in the Agreement;
      2. in writing and personally delivered; or
      3. sent by registered mail or by courier to the addresses set out under the heading “PARTIES” of the Agreement.
    2. Each of the Parties is entitled to, during the term of the Agreement, notify the other Party of another (email) address to which any notice for the Purpose of the Agreement should be sent.
    3. The provisions of this section 8 will not apply in relation to the service of documents for the purpose of litigation.
    4. Any communications copied to the respective advisers of the Parties will be for information purposes only and will not constitute a valid notification under the Agreement.
  9. Costs, Default
    1. The Parties must indemnify each other for all costs it has made in order to enforce the obligations resting on the other Party under the Agreement.
    2. If a certain obligation is not met or a term to meet an obligation is due by a Party, the non-defaulting Party will first send a notice of default. If the defaulting Party again fails to meet his obligation, he will be in default.
  10. Miscellaneous
    1. GoPhoto reserves the right to unilaterally amend or supplement these Terms. If the Partner continues to use the services of GoPhoto after the effective date of the amended Terms, the Partner will be deemed to have accepted the amended terms.
    2. The Agreement may be amended only by the express written consent and signatures of both Parties.
    3. The Agreement including the Annexes constitutes the entire agreement between the Parties in relation to its subject matter and replaces all prior understanding (whether oral or written) regarding thereto.
    4. If any term of the Agreement or the Terms will not be legally valid or enforceable (in its entirety or in part), the Parties will in good faith seek to agree upon a solution that reflects the intended commercial objective of the invalid or unenforceable (part of the) term.
    5. No one other than a Party to the Agreement, their successors and permitted assignees, will have any right to enforce any of its terms. A Party may not assign its rights and obligations under the Agreement or the Terms without the prior written consent of the other Party, except that the rights and obligations of a Party may be assigned to an affiliate on condition that the exercise of these rights and obligations will not constitute a violation of the applicable laws and regulations.
    6. The issues not regulated by the Agreement or the Terms, as well as the disputes arising out between the Parties (if any exist), are regulated by negotiations.
  11. Governing Law and Dispute Resolution
    1. The Agreement is governed by and construed in accordance with the laws of the Netherlands.
    2. In the event of a dispute arising between the Parties in connection with the (subject of) the Agreement or the Terms, the Parties shall adhere to the following procedure:
      1. the Party that states that there is a dispute must inform the other Party in writing. The date of this notification will be the starting date of the procedure;
      2. the representatives of both Parties will meet and discuss the dispute and will make all reasonable efforts to reach a solution;
      3. if there is no prospect of reaching an agreement within thirty (30) days, the Parties are obliged to refer the conflict to a suitably qualified and experienced mediator, to resolve the dispute as soon as it is reasonably possible to do so.
    3. In case of failure to reach an agreement related to the Agreement conflict, the disputes shall be settled through the courts of the Netherlands, in first instance the Court of First Instance of Amsterdam, shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement, its subject matter or formation and the negotiations.