￼Article 1. Definitions
1.1 These General Terms and Conditions contain the following terms, written with a capital first letter, which have the following meanings:
Moments of Love: the partnership, Moments of Love V.O.F., having its registered office at Prins Clausstraat 135, 2291 WC Wateringen, the Netherlands, user of the present General Terms and Conditions, trading in Germany under the name, “A Moment of Love”;
Client: the counterparty to Moments of Love with which Moments of Love has a legal relationship;
Parties: Moments of Love and Client;
Option: the right of a potential Client to reserve a date, under the terms and conditions, as specified in Articles 3.6 to 3.8;
Agreement: the agreement which forms an integral part of these General Terms and Conditions, with regard to the sale of services and goods.
DCA: Dutch Copyright Act
1.2 The definitions for singular words also includes their plurals and vice versa. If, with respect to persons or the Parties (whether or not under these General Terms and Conditions) a gender is indicated, that indication also pertains to any other gender. References to persons also include legal entities.
Article 2. Applicability
2.1 These terms and conditions apply to all legal relationships between Moments of Love and Client, including but not limited to offers, quotes, agreements (of purchase and sale), provision of services, purchase of services and whatever else they may be.
2.2 The applicability of the Client’s general terms and conditions of purchase, supply or payment and/or any other general or special terms and conditions are explicitly rejected.
2.3 There can be no derogation from these General Terms and Conditions, unless the parties involved so agree in writing and even then, exclusively and on a once-off basis for that specific case to the specific extent agreed.
2.4 If any of the provisions contained in these General Terms and Conditions is invalid or declared invalid, the remaining provisions contained in these terms and conditions will remain in full effect. In that case the Parties are obligated to replace or have replaced the invalid or invalidated provision, by way of mutual consultation, in a manner that does as much justice as possible to the intention of the valid or invalidated provision.
2.5 Moments of Love is authorised to amend these General Terms and Conditions at any time. Amendments will take effect 30 days after the date of written notification to the Client. If the Client does not wish to agree to the amendments, he has the right to cancel the agreement, with due observance of a notice period of 30 calendar days and, at the earliest, on the date on which the amendments take effect.
2.6 If these General Terms and Conditions are amended in the interim, the amended version will form part of any agreement created between Moments of Love and the Client at such time as the amendments take effect.
Article 3. Offer and creation of the agreement
3.1 All of our offers and/or quotes and/or communications are non-binding, unless otherwise explicitly stated. Offers are based on the details provided by the Client. If these details should prove incorrect, Moments of Love has the right to change or withdraw its offer. In respect of Moments of Love, the Client vouches for the accuracy and completeness of the details it provides. If this is not the case, the Client will bear the risk and it indemnifies Moments of Love against any damages caused by errors or defects in the information it provided, which forms the basis for the work.
3.2 The agreement between Moments of Love and the Client is created by the Client’s acceptance of the offer and/or quote by way of written confirmation or a confirmation e-mail from the Client.
3.3 If the acceptance deviates from the offer recorded in the quote (in respect of minor points), then Moments of Love is not bound by it. In that case the assignment will not be created in accordance with this irregular acceptance, unless Moments of Love explicitly states otherwise in writing.
3.4 Quotes do not automatically apply to future assignments.
3.5 Moments of Love retains the right to refuse an assignment if, after acceptance, new information becomes available which renders performance of the assignment unacceptable.
3.6 At the Client’s request, Moments of Love may assign an Option to the Client, which means that the Client can take an option on a certain date. This Option will remain valid for 14 days after the Option has been assigned, after which time this Option will automatically expire.
3.7 If Moments of Love receives another booking for the same date during the term of the Option, it must apply that Moments of Love cannot enter into an Agreement with this other party during the term of the Option.
3.8 On assignment of an Option, it is explicitly stated that no Agreement will be created between the Parties. The Agreement will only be created after the Client has converted the Option into a definitive date – within the term specified in Article 3.6 – all this in the manner provided in this Article.
Article 4. Prices and rates
4.1 All prices contained in the above-mentioned quotes from Moments of Love are quoted in Euro, including value added tax (VAT), travel expenses and other levies imposed by the government, unless otherwise stated.
4.2 Moments of Love is authorised to amend the agreed price at any time, if significant changes have arisen to the (cost) price factors (including changes to salaries and flight tickets) between the date of the offer and the creation of the agreement, even if this happens as a result of foreseeable circumstances.
4.3 The agreement includes Moments of Love’s authorisation to separately bill for any extra work which it performed as soon as it is aware of the billable amount. The provisions contained in paragraphs 1 and 2 apply mutatis mutandis to the calculations for extra work, extra work is considered any performance by Moments of Love while performing the agreement – in consultation with the Client, whether or not this is laid down in writing – which exceeds the work or services explicitly recorded in the contract or the quote
Article 5. Billing and payment
5.1 Once the agreement has been created, Moments of Love will bill the Client for 50% of the amount due.
5.1 Once it has provided its services, Moments of Love will bill the Client for the remaining 50% of the amount due.
5.3 Payments must be made in Euro within fourteen (14) days of the invoice date into one of Moments of Love’s bank accounts (to be designated by Moments of Love), unless otherwise explicitly agreed in writing.
5.4 The Client will be in default after fourteen (14) days have passed after the invoice date. As a result of this, all invoices which have not expired will also become immediately due.
5.5 As from the time of default, the Client will owe compound interest of 1% per month on the amount due, without the requirement for any notification of default, unless the statutory interest is higher, in which case the statutory interest will apply as from the date of default, all this without prejudice to the right of Moments of Love to claim additional compensation of damages from the Client.
5.6 If the Client fails to make payment (on time), then in addition to the interest specified in paragraph 5, the Client will owe Moments of Love extrajudicial costs which are set at 15% of the principal sum due, with a minimum amount of €500, without prejudice to the right of Moments of Love to charge the Client for the actual costs incurred, including any legal costs, if these should exceed the amount calculated in this way. Likewise, the Client will owe interest on the collection costs due.
5.7 Payments made by the Client will always serve to settle in first place, all interest and costs due, in second place, those invoices due which have been outstanding for longest, even if the Client reports that the payment pertains to a later invoice.
5.8 In the event of debt restructuring or bankruptcy in respect of the Client, Moments of Love’s claims and the Client’s obligations in respect of Moments of Love will become immediately due.
5.9 The Client is not permitted to offset its payment obligation(s) to Moments of Love against a claim by the Client against Moments of Love, on any grounds whatsoever, without the explicit written consent of Moments of Love.
5.10 In the event that the Client fails to make payment (on time) or fails to (properly) comply with any obligation incumbent on the Client, Moments of Love is entitled to dissolve the agreement extrajudicially and/or discontinue or suspend further deliveries or performance of work and/or services, without prejudice to the right of Moments of Love to demand compliance or claim compensation in respect of the damages suffered by the Client as a result of the dissolution of the agreement.
Article 6. Performance of the assignment
6.1 Moments of Love will perform the assignment to the best of its understanding and ability and in accordance with its professional requirements, in the style in which Moments of Love usually works.
6.2 Moments of Love will make every effort and act to the best of its ability, in the given and existing circumstances, while reporting. The Client undertakes that it will make the circumstances as favourable as possible for Moments of Love, albeit not excluding the instruction of others present.
6.3 Moments of Love will deliver the images (which it produces) in the usual style it uses and with due observance of its creative freedom.
6.4 The Client is required to do and permit whatever is reasonably required and desirable, in order to facilitate the prompt, correct performance of the assignment.
Article 7. Delivery and delivery terms
7.1 All of the (delivery) terms quoted by Moments of Love are indicative and can never be considered deadlines.
7.2 The indicative (delivery) terms specified or agreed by Moments of Love are determined, to the best of its knowledge, on the basis of the details known to Moments of Love on entering into the agreement. Moments of Love will make every effort to observe agreed (delivery) terms as much as possible.
7.3 Moments of Love is not bound by any ultimate (delivery) terms that could not be met due to circumstances beyond its control which arose after entering into the agreement. Nor is Moments of Love bound by any ultimate delivery terms, if the Parties agreed to any change to the contents or scope of the agreement (extra work, changes to specifications and such).
7.4 If there is a threat of not meeting a deadline, Moments of Love will inform the Client of this as soon as possible. Moments of Love will not be in default by sole virtue of failing to meet a deadline.
Article 8. Force majeure
8.1 Moments of Love is not required to comply with any obligations to the Client, if Moments of Love is impeded from doing so as a result of force majeure.
8.2 Force majeure is defined as any shortcoming in complying with the agreement which cannot be attributed to Moments of Love because it is not its fault and cannot be at its expense under the law, legal action or generally applicable interpretations.
8.3 In any event, in addition to the definitions contained in the law and in case law, these General Terms and Conditions define a non-attributable shortcoming as the failure by Moments of Love to properly meet its obligations as a result of the illness and/or injury of employees in its service, a lack of staff, strikes, the late delivery of goods and/or services, flight delays and/or cancellations, regardless of whether or not this circumstance is situated or takes place at Moments of Love itself or at its (third-party) supplier(s) and the defectiveness of goods, materials, programming and/or equipment the use of which the Client prescribed to Moments of Love.
8.4 In the event of ongoing force majeure, including any circumstance over which the Contractor or the Client has no control, nor can they reasonably have, and which makes it impossible to perform the work and/or services, the Contractor and the Client are entitled to dissolve the agreement extrajudicially. In the event of force majeure the Client may claim compensation of the damages it suffered from the Contractor, without prejudice to the provisions contained in Section 6:78 of the Dutch Civil Code.
Article 9. Claims and complaints
￼Unless otherwise agreed, the Client must notify Moments of Love of complaints in relation to the work and/or services performed within seven work days of delivery, in writing and with a clear description of the complaints. In the absence of such a notification, any claim against Moments of Love, with regard to the defects in the￼ delivered goods or products or in the work and/or services performed, will expire. Any defects in a portion of the delivery does not give the right to reject the entire delivery.
Article 10. Copyright
10.1 Moments of Love is the owner of both the copyright and the other intellectual property rights to all materials developed or provided and/or images produced in the context of the assignment.
10.2 The Client is not entitled to reproduce the work except for his own use.
10.3 The Client is not entitled to disclose the work outside his organisation, unless otherwise agreed.
10.4 Clients who are also consumers will obtain specially designed files containing a logo for the purpose of publications on social media and personal websites. Other works may only be disclosed if Moments of Love’s name is clearly displayed.
10.5 The Client must observe the moral rights of Moments of Love, as specified in Section 25 DCA.
10.6 Digital or analogue editing or modification of the delivered works is not permitted without the prior written consent of Moments of Love.
10.7 Any use of a work belonging to Moments of Love that was not agreed, is considered an infringement on the copyright of Moments of Love.
10.8 In the event of an infringement on the copyrights and/or moral rights of Moments of Love, Moments of Love is entitled to claim compensation of damages, in order to compensate the damages suffered.
10.9 Compensation of damages does not give any right to the further use of the work belonging to Moments of Love.
Article 11. Portrait right
The Client agrees that Moments of Love can use the images it produces for its own promotional purposes and publications, including but not limited to, via his website, weblog, portfolio, social media, etc., unless otherwise explicitly agreed in writing.
Article 12. Liability
12.1 If and insofar as Moments of Love and/or its employees should be liable, then this liability is limited to the stipulations contained in this Article.
12.2 Moments of Love is not liable for any damages whatsoever if Moments of Love was acting on the basis of incorrect and/or incomplete details furnished by the Client.
12.3 Furthermore, Moments of Love is not liable for damages of any kind whatsoever, no matter what the cause, suffered by the Client or third parties which are the result of the incorrect and/or inexpert use by the Client or any third party of services provided by Moments of Love.
12.4 Moment of Love’s total liability, insofar as this is covered by its liability insurance policy, is limited to the amount of the payment made by the insurance company with respect to the incident of damages.
12.5 If the damages are not covered by the insurance policy, Moments of Love’s liability is limited to material damages and, even then, to a maximum of the invoice value of the assignment (excluding VAT) or in any event to that portion of the assignment to which the liability pertains.
12.6 Direct damages are only defined as:
12.7 The liability of Moments of Love and/or its employees for all forms of damages or those listed in the fourth and fifth paragraphs is excluded, which explicitly includes (but is not limited to) consequential loss, the loss of profits, lost savings, the loss of goodwill, damage caused by third parties, damage caused by economic stagnation and any other damage besides that referred to in paragraph 6. However, Moments of Love will be liable for indirect damages in the event of wilful misconduct or gross negligence on the part of Moments of Love.
Article 13. Termination of the agreement (suspension and dissolution)
13.1 It must apply for all agreements that Moments of Love is entitled to fully or partly suspend the agreement or to terminate the agreement with immediate effect, by way of a written statement and without prior notice of default or notification:
a. if there is an attributable failure by the Client with regard to one or more of its obligations and/or if compliance is impossible;
b. if it is plausible to Moments of Love that the Client is or will be unable or unprepared to comply with its obligations, also in the event that a garnishment order is imposed, at the Client’s expense, on its goods with regard to substantial debts and this garnishment order is enforced for more than two months;
c. if bankruptcy is requested by or at the expense of the Client, the Client is declared bankrupt, the Client files a petition to use a debt restructuring scheme or the Client is placed under legal restraint or in administration.
13.2 In the event of termination, Moments of Love is never required to pay compensation of damages of any kind whatsoever.
13.3 If Moments of Love suspends compliance in respect of its obligations, it reserves any of its claims ensuing from the agreement and the law. If the agreement is dissolved, Moments of Love’s claims against the Client will become immediately due.
13.4 In the event that the agreement is dissolved, the Client is required to immediately reimburse all costs already incurred by Moments of Love, without prejudice to Moments of Love’s right to claims full compensation of damages.
13.5 Any of the Client’s obligations which are, by their nature, intended to continue even after termination of the agreement, will remain in effect. Termination of the assignment does not explicitly relieve the Client from the provisions pertaining to, inter alia, intellectual property rights, applicable law and competent court.
Article 14. Applicable law and disputes
14.1 Each legal relationship between Moments of Love and the Client is governed exclusively by Dutch law.
14.2 Any disputes ensuing from or connected to any legal relationship between Moments of Love and the Client will only be submitted to the competent court within the district in which Moments of Love has its registered office.
Article 15. Amendments to and location of the terms and conditions
15.1 These terms and conditions were filed on February 11, 2014 at the office of the Dutch Chamber of Commerce, where Moments of Love is registered under number 55288049.
15.2 The most recently filed version and/or the version which applied at such time as the legal relationship was created will always apply, except for the provisions contained in Article 2 of these General Terms and Conditions.
General Terms and Conditions of Moments of Love, version 1, February 2014