Terms & Conditions

  1. Scope of application/Conclusion of contract
    1. Francescamenghini.com is a project of Xilab (Contractor), operated and executed by Francesca Menghini Photographer.
    2. The General Term and Conditions of Business of Xilab, for Francesca Menghini Photographer’ services (Photography Terms) apply exclusively; the Contractor does not recognise terms and conditions of the Client that conflict with or depart from these Photography Terms unless it has expressly agreed to their validity. These Photography Terms also apply if the Contractor provides the service without reservation in the knowledge of terms and conditions of the Client that conflict with or depart from these Photography Terms.
    3. The subject of the orders issued to the Contractor is the production of digital photographs, including in the form of data, data carriers, files, and the provision of graphics services, as well as the conceptual design of such services. “Photographs” within the meaning of the Contractor’s Photography Terms are all the products produced by it in the field of photography irrespective of the technical form or medium in which they were produced or are available (negatives, slides, paper images, still videos, electronic still photographs in digitised form, videos etc.).
  2. Prices
    1. The prices stated in the Contractor’s quotation apply, subject to the condition that the order details on the basis of which the quotation has been issued remain unchanged, however at the latest for 3 months after the Client receives the quotation. In the case of orders with delivery to third parties, the party placing the order counts as the Client insofar as no express agreement otherwise has been made. The Contractor’s prices are ex works, and do not include packaging, freight, postage, insurance and other dispatch costs.
    2. Subsequent changes at the Client’s instigation, including the cessation of the service caused thereby, shall be charged to the Client. Repeats of photographs requested by the Client due to a minor departure from the guideline also count as subsequent changes.
    3. The reservation base cost charged by the Contractor to the Client for booking and preparatory activities, such as the study of place and light, is not refundable.
    4. Sketches, drafts, sample typesetting, sample prints, sample photos, galley proofs, changes to data that has been supplied/transmitted and similar preliminary work initiated by the Client shall be invoiced.
    5. The Contractor shall charge a fee for the production of photographs as an hourly rate, daily rate or flat rate plus the statutory VAT on the basis of the current price lists, quotations or on a time and material basis (in EUR). Incidental costs (travel costs, model fees, out-of-pocket expenses, requisites and costs of materials etc.) shall be borne by the Client and shall be additionally invoiced.
    6. The Contractor can invoice changes to orders on a time and material basis according to the price list valid at the time of the changes on an hourly basis.
    7. If the Client wishes changes during or after the production of photographs, they must also bear the additional costs notified after consultation. Additional expense caused by subsequent changes to the briefing or layout shall be invoiced to the Client after consultation. The Contractor reserves the right to claim remuneration for work that has already been started.
    8. All the prices stated are net amounts that are payable together with the statutory VAT.
    9. The Client shall pay for all expenses such as travel and overnight costs, out-of-pocket expenses and all third-party claims to remuneration incurred in the context of executing the agreement on presentation of supporting documents.
    10. If the Parties have not made any agreement on the remuneration of a service by the Contractor the provision of which given the circumstances the Client should only expect in return for remuneration, the Client must pay the remuneration that is usual for this service. In case of doubt the remuneration rates requested by the Contractor for its services shall count as usual.
  3. Services and duties included
    1. If the Client has not provided the Contractor with any layout or briefing, and thus no express instructions concerning the design of the photograph or the object to be created graphically in written form, the layout shall take place generally at the Contractor’s own discretion.
    2. In the case of colour reproductions in all production processes minor discrepancies from the original cannot be objected to. The same applies to the comparison between other guidelines (e.g. digital or other proofs) and the end product.
    3. Items supplied by the Client or a third party involved by them (also data media, transmitted files) are not subject to any duty of inspection by the Contractor. When sending data, before these are sent the Client must use protective programs against computer viruses and malware corresponding to the latest state of technology. Solely the Client is responsible for data backups. The Contractor is entitled to make a copy.
  4. Changes to the performance
    1. If the Client wishes to change the contractually determined scope of the services to be provided by the Contractor, they must express this wish for changes to the Contractor in writing (email is permissible). The further process shall be in accordance with the provisions below. In the case of wishes for changes that can be checked quickly and can probably be implemented within 8 working hours, the Contractor can abandon the process in accordance with paragraphs 4.2 to 4.5.
    2. The Contractor shall check what effects the desired change shall have, especially in terms of the remuneration, additional expenses and deadlines. If the Contractor identifies on the basis of these checks that the services to be provided cannot be implemented, or only with a delay, the Contractor shall inform the Client of this and point out that the desired change can only be further examined if the services concerned are postponed for an initially indeterminate period. If the Client declares their agreement to this postponement, the Contractor shall undertake the examination of the wish for changes. The Client is entitled to withdraw their wish for changes at any time, and the change process initiated shall end then.
    3. After examining the wish for changes, the Contractor shall explain to the Client the effects of the desired changes on the agreements reached. Such an explanation shall either include a detailed suggestion on how to implement the desired change or details of why the desired change cannot be implemented.
    4. The Parties shall immediately discuss and agree on the content of a proposal for the implementation of the desired change and attach the result of a successful discussion to the existing documents as a rider.
    5. The deadlines affected by the change process shall be put back to take account of the duration of the examination of the Client’s wishes and the duration of the discussion and agreement on the desired change, and as applicable the duration of the desired changes to be implemented, plus insofar as necessary an appropriate lead time. The Contractor shall inform the Client of the new deadlines.
    6. The Client must bear any costs arising due to the request for changes. These include in particular the examination of the wish for changes, the preparation of a suggestion for such changes and any downtimes. In the event of the Parties agreeing on daily rates, the expenses shall be calculated by the Contractor in accordance with this, and otherwise in accordance with the usual remuneration.
    7. The Contractor is entitled to change or depart from the services to be provided if the change or departure is reasonable for the Client taking account of the Contractor’ interests.
  5. Performance period and delay
    1. If the Contractor falls behind, then in the case of simple negligence its liability for the reimbursement of the damage caused by such delay shall be limited to 5% of the contract value. Further claims by the Client remain unaffected.
    2. Contractual penalties on account of late delivery are excluded.
    3. In the event of disruption of operations such as strike or lockout, and in all other cases of force majeure (in particular war, natural phenomena, official decrees, fire, shortage of energy and technical faults (e.g. breakdown of the server environment)), the agreed delivery periods shall be extended by the duration of the disruption. Such disruptions of operations also include days of bad weather in the case of planned outdoor photography and the unforeseen non-attendance of booked models due to circumstances for which the Contractor is not accountable. The delayed order can only be cancelled if the Client cannot be expected to wait any further, however cancellation is only possible at the earliest four weeks after the occurrence of the disruption of operations described above. The Parties’ liability in the event of the aforementioned disruptions of operations is excluded.
  6. Payment
    1. Any agreement on discounts does not apply to freight, postage, incidental costs (travel costs, model fees, out-of-pocket expenses, requisites and costs of materials etc.), insurance or other dispatch costs.
    2. The remuneration must be paid before the execution of the Contractor’s work.
    3. If the photography work is to be accepted in parts and remuneration is agreed for the individual parts, the remuneration for each part must be paid before the execution of each individual work.
    4. If the photography extends over a longer period (two months or more) and/or it requires high payments in advance by the Contractor (EUR 5,000 or more), the Contractor can request appropriate down payments from the Client.
    5. The Client can only offset against a claim that is undisputed or has been established as having legal force.
    6. If the Client is an entrepreneur, his right of retention is excluded unless the Client’s counterclaim originates from the same contractual relationship and is undisputed or has been established as having legal force.
    7. If it becomes evident after the conclusion of contract that the fulfilment of the claim to payment is jeopardised by the Client’s lack of ability to pay, the Contractor can request advance payment, retain goods that have not yet been delivered and halt further work.
    8. The Client shall fall into arrears without a reminder if they do not pay within 14 days of receipt of invoice.
  7. Copyright, granting of rights of use
    1. The Contractor shall be entitled to the copyright to the photographs produced by the Contractor within the meaning of the auteursrecht [Dutch Copyright Law].
    2. Unless agreed otherwise in writing, the Client shall receive the non-exclusive (simple) right of use of the copyright to the photographs and in the case of photographs of models the right to their own photograph for use for the contractually agreed purpose and scope. The granting of rights of use that are unrestricted in terms of location, time or content, and of blocking periods requires written agreement.
    3. The rights of use with personal rights (pictures on which persons are recognisable) shall be in accordance with the designated buyouts of the respective model agency in terms of time, location and content. Unless anything should be agreed otherwise with the Client, the use of such pictures by the Client in the print area is excluded; the right to online use of such pictures by the Client is limited to six months from the publication date of the pictures. Any liability by the Contractor for infringements of these limitations on rights of use by the Client is excluded.
    4. The photographs must strictly be used unchanged and in full. Editing, for example by means of subsequent photography or filming with mechanical or electronic means, is not permitted unless agreed otherwise in writing. The same applies to the use of the photographs in the context of a customer presentation as well as for dissemination in electronic, digital or analogue form, or the granting of rights to third parties.
    5. The Client shall only receive the rights of use after the invoice has been paid in full. If the Contractor is entitled to further claims against the Client, the latter shall only receive the rights of use if all claims against them have expired.
    6. If the Client issues an order for the electronic editing of third party photographs they must affirm that they are entitled to do. They shall indemnify the Contractor against all claims by third parties.
    7. The contractor does not grant the rights of use exempt from all conceivable third party rights. The client must therefore observe any third party rights to the photographs that have been made available.
  8. Minor Release Consent
    1. The purchase of photography services related to minors (newborn photo sessions, etc.), the Client confers to the Contractor the absolute and irrevocable right and permission with respect to the photographs that he/she has taken of the minor child in which he/she may be included with others:
      • To copyright the same in Xilab and Francesca Menghini name or any other name that he/she may select;
      • To use, re-use, publish and re-publish the same in whole or in part, separately or in conjunction with other photographs, in any medium now or hereafter known, and for any purpose whatsoever, including (but not by way of limitation) illustration, promotion, advertising and trade, and;
      • To use the Client’s or his/her child’s name in connection therewith if he/she so decides;
    2. The Client releases and discharges Xilab and Francesca Menghini from all and any claims and demands ensuing from or in connection with the use of the photographs, including any and all claims for libel and invasion of privacy.
    3. This authorization and release shall inure to the benefit of the legal representatives, licensees and assigns of photographer Francesca Menghini as well as the person(s) for whom he/she took the photographs.
    4. The Client confirms that he/she is the [parent/guardian] of the minor in subject of the photographs, after the purchase of a minor related service. For value received, he/she hereby consents to the foregoing on his/her behalf.
  9. Adult Model Consent
    1. In consideration of the Client’s engagement, upon the terms here with stated, he/she hereby gives to Xlab and Francesca Menghini:
      • the unrestricted right and permission to copyright and use, re-use, publish, and republish photographic portraits or pictures of he/she or in which he/she may be included intact or in part, composite or distorted in character or form, without restriction as to changes or transformations in conjunction with his/her own or a fictitious name, or reproduction hereof in color or otherwise, made through any and all media now or hereafter known for illustration, art, promotion, advertising, trade, or any other purpose whatsoever.
      • the permission of using any printed material in connection therewith.
      • the renunciation of any right that he/she may have to examine or approve the completed product or products or the advertising copy or printed matter that may be used in conjunction therewith or the use to which it may be applied.
      • his/her release, discharge and agree to save harmless Xilab and Francesca Menghini, his/her heirs, legal representatives or assigns, and all persons functioning under his/her permission or authority, or those for whom he/she is functioning, from any liability by virtue of any blurring, distortion, alteration, optical illusion, or use in composite form whether intentional or otherwise, that may occur or be produced in the taking of said picture or in any subsequent processing thereof, as well as any publication thereof, including without limitation any claims for libel or invasion of privacy.
      • his/her confirmation that he/she is over the age of majority and have the right to contract in his/her own name. He/she has read the above authorization, release and agreement, prior to its execution; he/she fully understands the contents thereof. This agreement shall be binding upon the Client and his/her heirs, legal representatives and assigns.
  10. Retention of title
    1. The photographs and graphics produced by the Contractor remain the property of the Contractor until they have been paid for in full.
  11. Acceptance, complaints and guarantee
    1. After the photographs have been prepared, the Client shall immediately, within 8 days, subject them to acceptance and approve the photographs or request the necessary corrections (e.g. due to non-observance of the Client’s specifications or defective quality of the pictures). With such approval, the photograph shall be deemed to have been accepted unless defects (for example the incorrect execution of cut-outs, colour adjustments or picture editing) were only identifiable after approval.
    2. If the Client is already productively using performances provided by the Contractor, the portion being used productively shall be deemed to have been accepted.
    3. Obvious defects must be reported immediately, within 8 days, after receipt of the photograph, and defects appearing later immediately, within 2 to 3 days of discovery.
    4. In the event of justified complaints, the Contractor shall be entitled to choose between rectification of the defects and/or substitute performance. If rectification and/or substitute performance are not successful, or if the costs of this are disproportionately high, the Client can withdraw from the agreement or request a reduction in the invoice amount. Further rights under guarantee are excluded.
    5. The Contractor guarantees that the condition of the work shall be as described in the service description.
    6. Any guarantee shall not extend to defects which have been caused by external influences or by non-compliance with the terms of use contained within the performance. The guarantee shall lapse insofar as the Client changes the performances itself without the consent of the Contractor or has these changed by third parties, unless the Client demonstrate that the defects were not caused by such changes and the rectification of the defects has not been made unreasonably more difficult by the changes.
    7. The guarantee period commences with the acceptance by the Client and ends after 12 months.
    8. The Client must in any case immediately inspect the conformity of the goods with the contract and the preliminary and intermediate products sent for correction. The risk of any errors passes to the Client with the declaration of readiness for printing/production unless there are errors involved which only arose or could be identified in the production process after the declaration of readiness for printing/production. The same applies to all other declarations of approval by the Client.
    9. Defects in one part of the delivered goods do not provide justification for objections to the entire delivery unless the partial delivery is not of interest to the Client.
    10. In addition, liability is excluded for defects that do not adversely affect the value or suitability of use, or only do so to an immaterial extent.
    11. In the event of disparities in the quality of the material used, the Contractor shall only be liable up to the amount of the order value.
  12. Liability
    1. Claims by the Client for damages and the reimbursement of costs on whatever legal grounds are excluded.
    2. This waiver of liability does not apply
      • to damage that has been caused with intent or gross negligence,
      • to slightly negligent infringement of material contractual duties, whereby the Contractor‘s lability in this case is limited to the damage typical of such contracts that was foreseeable at the conclusion of contract; material contractual duties are such duties as protect the Client’s legal positions in respect of the contract, which the contract has to guarantee for the Client through its content and purpose, and such obligations the fulfilment of which makes the proper execution of the contract possible at all and on compliance with which the Client has regularly relied and may rely on,
      • in the event of culpable damages arising out of the death, injury to body or health of the Client,
      • in the event of fraudulently concealed defects and guarantees taken over to the quality of the goods,
      • to claims from the Dutch Product Liability Law.
    3. Should the rights of third parties be infringed by articles supplied by or instructions from the Client and should the Contractor be claimed against for this, the Client shall indemnify the Contractor against claims by third parties (including legal and defence costs). Insofar as the Client edits the photographs or uses them in a non-contractual way and thus infringes rights or specifications of third parties, the Client shall handle the resultant dispute themselves. If this is not possible for imperative reasons, the Client shall indemnify the Contractor against the claims of third parties (including legal and defence costs).
    4. The Contractor shall not be liable for the loss of data and/or programs insofar as the damage is due to the Client omitting to make backups and thus ensuring that lost data can be restored at reasonable expense.
    5. The Contractor shall not be liable for damage to the goods caused by production, such as pinholes caused by styling, the opening of packs etc.
    6. The above provisions also apply for corresponding infringements of duties by the Contractor’s vicarious agents. Insofar as liability is excluded or limited for the Contractor, this shall also apply in respect of the personal liability of its management bodies, legal representatives, employees and other agents.
  13. Archiving
    1. Products to which the Client is entitled, especially data and data media, shall only be archived by the Contractor beyond the date of handover of the end product to the Client or their vicarious agents after express agreement and in return for special remuneration. Should the aforementioned articles be insured, in the absence of agreement the Client must obtain this themselves.
  14. Non-solicitation agreement
    1. The Client undertakes during the term of the cooperation between the Parties and for a period of one year thereafter not to solicit any employees from the Contractor directly, or indirectly via third parties, or to employ them without the Contractor’s consent. For every case of culpable action to the contrary the Client undertakes to pay a contractual penalty, the amount of which is to be specified by the Contractor and in the event of dispute to be reviewed by the competent court.
  15. Data protection and confidentiality
    1. The documents handed over to the respective other Party and the knowledge and experience imparted must be used exclusively for the purposes of cooperation and must not be made accessible to third parties, unless by their very nature they need to be made accessible to third parties or were already known to third parties. Third parties do not include the assistants brought in as applicable for the execution of the contractual relationship such as freelancers, subcontractors etc.
    2. The Parties also agree to maintain confidentiality about the content of the cooperation and the knowledge acquired during the handling of it.
    3. The obligation to maintain confidentiality also applies beyond the ending of the cooperation.
    4. If one Party so requests, the documents it has handed over such as strategy papers, briefing documents etc. must be issued to it after the ending of the cooperation insofar as the other Party is unable to assert any justified interest in the documents.
    5. Press declarations, information etc. in which one Party refers to the other are only permissible after prior written agreement, which can also take place by email.
  16. Written form
    1. All modifications and additions to contractual agreements must be recorded in writing for evidentiary purposes. Terminations must take place in writing.
  17. Place of performance, place of jurisdiction, choice of law
    1. If the Client is a merchant, legal person under public law or a special fund under public law, or has no general place of jurisdiction in Netherlands, the place of performance and place of jurisdiction for all disputes arising from the contractual relationship, including proceedings relating to cheques, bills of exchange and documentary evidence, is the Contractor’s registered office.
    2. Dutch law applies to the contractual relationship. The UN Convention on Contracts for the International Sale of Goods is excluded.

Xilab, VAT. NL621293593B01, The Hague (NL) – Updated: June 2018