Applicability of the general terms and conditions

These general terms and conditions govern the legal relationship between Sarah Embrechts (Sarah Em), with registered office at Boomgaardstraat 50, 2600 Berchem, and registered with the Crossroads Bank for Enterprises under number 0771.568.583, Antwerp division, hi@sarahem.be (the "photographer"), and the natural person or legal entity to whom the photographer provides her services and/or works (the "client").

These general terms and conditions 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 terms and conditions of the client. In the event of contradictions between statements on proposals and/or invoices, only the statements on the most recent document shall be binding upon the parties. Deviations from these general terms and conditions shall only be enforceable against the photographer if expressly, previously and in writing accepted by the photographer. In the event of contradictions 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, this means that he/she/they fully and unreservedly agrees to these general terms and conditions. If the client acts as an intermediary for a third party, the client may never invoke the commitments between him/her/them and their own principal against the photographer in order to release himself/herself/themselves from these general terms and conditions and/or the agreement between the client and the photographer (the "agreement").

Quotations

All offers and quotations issued by the photographer are non-binding until accepted by the client. Quotations remain valid for 15 calendar days after the quotation date unless stated otherwise. Offers and quotations do not automatically apply to future assignments.

Formation of the agreement

All proposals of the photographer are non-binding and do not bind her as such. They may not be regarded as an offer, but merely as an invitation to the Client to place an order.

The agreement or any other commitment shall only come into existence if and insofar as the client has digitally signed the photographer’s proposal for approval or confirmed it in writing through the online platform made available by the photographer for that purpose.

Deposit

A booking is final. For a wedding, a deposit of 25% of the total amount will be requested in order to reserve the booked date. The remaining amount will be invoiced after the wedding. The deposit must be paid within 14 days after the written acceptance of the assignment and/or order. If the deposit is not paid on time, the photographer has the right to terminate the agreement unilaterally, without prior notice of default, without prior court approval, and without owing any compensation of whatever nature.

Invoicing and payments

Invoices must be paid within 14 days after the invoice date, unless agreed otherwise. Photos or products will not be delivered before this payment has been made. In the event of late payment of an invoice, the client loses the benefit of the payment term with regard to all outstanding invoices, which also become immediately due and payable, together with the invoice interest and the penalty clause relating thereto. In the event of non-payment or late payment, the photographer reserves the right to suspend all further services until full payment of the outstanding invoice amount has been received. By operation of law and without any notice, default interest of 12% per year shall be due on the balance of the invoice from the due date until the date of full payment.

Pursuant to Articles 1139, 1147 and 1152 of the Civil Code, in the event of non-payment of an invoice on the due date, default interest of 1% per month on the unpaid invoice amount shall be due by operation of law and without prior notice from the due date, as well as a fixed compensation of 15% of the outstanding invoice amount (with a minimum of EUR 75.00), without prejudice to the right of the photographer to claim higher compensation upon proof of greater actual damage suffered.

Prices

The photographer may adjust her prices at any time. The agreed price at the time of booking shall remain applicable. The applicable prices are those expressly stated on the invoice. In the event of any inconsistency in the content of the quotation, delivery and invoice, the amount stated on the invoice shall prevail.

Gift vouchers

The photographer is not responsible for the loss or theft of gift vouchers. Gift vouchers have a stated value and do not equal a full photo session including all photographs. A gift voucher cannot be exchanged for cash, cannot be returned and remains valid until 2 years after the date of issue.

Cancellation, postponement and modification

The client may cancel the order by sending an email to hi@sarahem.be. The date of receipt shall be regarded as the cancellation date.

In the event of cancellation, the client shall owe a fixed cancellation fee equal to the deposit that the client has paid to the photographer, increased by the compensation for any services or works already performed and/or costs already incurred. In the event of cancellation of a wedding report, this cancellation fee shall be increased by (i) 25% of the balance of the total invoice amount if the client cancels less than six months before the date of the relevant assignment, or (ii) 50% of the balance of the total invoice amount if the client cancels less than three months before the date of the relevant assignment. In the event of cancellation of an assignment other than a wedding report, a cancellation fee of (i) EUR 150.00 shall be charged. If the client cancels less than one month before the date of the relevant assignment, this cancellation fee shall be increased by (ii) EUR 100.00. This cancellation fee shall become immediately due and payable at the time of cancellation.

In the event of cancellation by the photographer, the photographer shall owe a fixed cancellation fee equal to the deposit paid by the client to the photographer, except in the event of force majeure or external cause.

The client may postpone the order to a later date no later than six months before the agreed date or dates of the relevant assignment (as determined in the agreement), provided that the photographer is still available on the later date chosen by the client. In the event that the photographer is not available, the client will have to cancel the order in accordance with the provisions set out above. The client shall pay an administrative fee of EUR 150.00 (excluding VAT) to the photographer in the event of postponement. In the event of postponement of the order, the photographer shall send a new proposal to the client. The services and works still to be performed shall be delivered at the photographer’s standard rates applicable at the time of the digital signature of the proposal.

In the event of a modification of the order, other than a postponement of the agreed date or dates, after receipt of the written confirmation thereof by the photographer, the client shall by operation of law be obliged to compensate all additional costs arising directly or indirectly from such modification. The photographer shall only carry out such modification after the client has signed a separate quotation or order form specifying the additional costs and the photographer has confirmed receipt thereof in writing.

If the client fails to appear at the photo session, the full amount of the order shall be charged.

Force majeure

In the event of rain, the photo session may be rescheduled in consultation with the photographer. For weddings, this only applies to the pre- or post-wedding shoot.

In the event of illness or force majeure on the agreed date on the part of the photographer, the photographer and the client shall jointly determine to which date the photo session can be rescheduled.

In the event of illness or force majeure on the day of a wedding, the photographer shall assist in finding an equivalent replacement and in that case undertakes to refund the deposit already received, but shall not owe any damages whatsoever to the client.

The photographer has the right to have the assignment carried out in whole or in part, without notice and at cost price, by third parties.

Intellectual rights

The client shall fully and unconditionally respect all intellectual property rights relating to the photographer’s services and works (including but not limited to copyrights, related rights, moral rights, trademark rights, rights to trade names, etc.).

All intellectual property rights (including but not limited to copyrights and moral rights) relating to the works and services 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 be transferred or licensed, in whole or in part, to the client, its appointees, employees and/or third parties, unless expressly agreed otherwise in writing between the client and the photographer.

The client grants permission to the photographer, in the context of the performance of the agreement, to capture his/her/their portrait, reproduce it on all possible media, communicate it to the public through 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 fair material), for an indefinite duration and throughout the world. The client guarantees that all third parties whose portraits are captured by the photographer in the performance of the agreement grant permission to the photographer for the above-described capture, reproduction, communication to the public and commercial exploitation of their portrait. The client indemnifies the photographer in the broadest sense against any claim and legal action that a third party may make or bring against the photographer in this respect.

In accordance with the exceptions laid down in Article XI.190, 3° and 9° of the Code of Economic Law, the client is only permitted to reproduce the photographs created during the performance of the agreement for private use and to communicate them within a private circle. For uses of the photographer’s works and services created during the performance of the agreement that are not permitted by law, the client requires the photographer’s specific, express and written permission.

In accordance with Article XI.165, §2, paragraph 7 of the Code of Economic Law, the client is not permitted to make changes to the works and services created during the performance of the agreement, including but not limited to changes to colours and formats. If the client wishes to modify the delivered photographs, the photographer shall make the requested changes insofar as possible. The services and works still to be performed shall be delivered at the photographer’s standard rates applicable at the time of digital signature of the proposal.

In accordance with Article XI.167/3 of the Code of Economic Law, the photographer has the right to claim additional, appropriate and fair remuneration when the remuneration originally agreed proves to be disproportionately low in comparison with all relevant subsequent income of the client arising from the permitted exploitation of the photographs or other works supplied by the photographer.

In the event of any infringement of the above article 1, 2 or 3, the client shall by operation of law and without prior notice of default owe a fixed compensation equal to the SOFAM rates applicable at that time in the event of infringement, without prejudice to the right of the photographer to claim higher compensation upon proof of greater actual damage suffered.

Insofar as the photographed creations themselves enjoy copyright protection, the following modalities shall apply:

a. If the client is also the copyright holder of the photographed creation, by accepting these general terms and conditions the client gives his/her/their express permission for the reproduction and communication to the public of the photographed creation, without any compensation being due by the photographer. This licence applies worldwide and is not limited in time.

b. If the client is not the copyright holder of the photographed creation, the client undertakes to obtain the express permission of the copyright holder for the reproduction and communication to the public of the photographed creation. The client shall bear full responsibility for any compensation that may be requested in this regard. The client must ensure that the licence to be obtained applies worldwide and is not limited in time. If the client fails to obtain such a licence, the photographer cannot be held liable for alleged copyright infringements.

Upon publication

When publishing the photographer’s images in any medium or in any manner whatsoever, credit is mandatory, unless the rights for this have been bought out. The credit must read: Photography or Photo: Sarah Em - www.sarahem.be (for websites including hyperlink), and on social media the photographer must be tagged (@sarahem.be).

Complaints

Complaints relating to the services provided must be reported within five days. The services and performances delivered constitute an obligation of means and not an obligation of result.

Online gallery

Images are edited and delivered only in JPG format in an online gallery. This gallery remains available free of charge for at least six months. After this period, the gallery can be put online again for an amount of €100 excluding VAT. The photographs will only be edited and the gallery with photographs will only be made available after full payment of the photo session. If the session has not been paid in full within 30 days, the photographs will be archived and can only be obtained again subject to an additional charge of €150.

Prints

Upon purchase, the client commits to the selected items. These are custom-made and can therefore not be returned. The order will only be prepared after approval of the design and payment of the full amount. The photographer is not responsible for delays in delivery or damage caused by postal services.

Downloads

Digital products are non-refundable as they are downloadable files and therefore cannot be returned.

Liability

The photographer is not responsible for any accidents or damage before, during or after the photo session. This includes: damage to the client, indirect damage resulting from use or services, bodily injury or material damage, loss of and/or damage to the other party’s property, colour deviations if photographs or photo products are printed by third parties.

The photographer is not liable for colour deviations on non-calibrated screens or prints not supplied by the photographer.

The photographer is not liable for damage to or loss of photographic or other visual material not caused by her wilful misconduct or gross negligence and resulting from, among other things but not limited to, a technical, system or software error or problem, the development lab, a manufacturing defect and airport X-ray inspection.

The photographer is not liable for infringements of intellectual property or other rights (including but not limited to copyrights, related rights, portrait rights, trademark rights and trade name rights) arising in the context of the performance of the agreement. The client indemnifies the photographer against any claim or legal action brought by rights holders 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.

To the extent that the photographer depends on the cooperation, services and deliveries of the client or third parties in the performance of her obligations, or engages third parties, she cannot be held liable for any damage resulting from their fault, including gross negligence or wilful misconduct.

The contractual and non-contractual liability of the photographer shall at all times be limited to the invoice amount.

The client acknowledges that he/she/they has/have been sufficiently informed of the style and form of the works and services created by the photographer and the fact that the delivered works and services do not meet a different expectation of the client regarding style, form and content may not be invoked as a reason for non-conforming works or services. The client acknowledges and accepts that due to technical limitations, deviations in colour and resolution may occur and that the photographer cannot be held liable for this.

Applicable law

Belgian law applies to these agreements. All disputes arising from the performance of the agreements and all disputes regarding the interpretation of the agreement shall be submitted to the courts and tribunals of the district of Antwerp.