As a Member of Association of Professional Photographers Dupho we use these terms and conditions. You can download it here. Applicability of the General Conditions of the counterparty is hereby expressly rejected.
Als Member van Beroepsorganisatie voor Professionele Fotografen Dupho hanteren wij deze algemene leveringsvoorwaarden. Deze kunt u hier downloaden. Toepasselijkheid van de Algemene Voorwaarden van de wederpartij wordt hierbij uitdrukkelijk van de hand gewezen.
General Terms and Conditions of DuPho, January 2015
1. Definitions applying to these General Terms and
Conditions
Aw: Auteurswet 1912 [Dutch Copyright Act of 1912]
Photographic Work: photographic works as referred to in Article
10 section 1 subsection 9 Aw, or other works covered by the Aw
that can be equated with the said photographic works.
Image Carrier: the carrier on which a Photographic Work (whether
or not identifiable with the naked eye) is recorded, such as a slide,
negative, print, duplicate copy, Polaroid, CD-rom, DVD or
memory stick.
Photographer: the user as defined by Book 6, Article 231 of the
Dutch Civil Code.
Other Party: the other party as defined by Book 6, Article 231 of
the Dutch Civil Code.
Usage: copying and/or publication as defined by Article 1 in
conjunction with Articles 12 and 13 of the Aw.
Conditions
Aw: Auteurswet 1912 [Dutch Copyright Act of 1912]
Photographic Work: photographic works as referred to in Article
10 section 1 subsection 9 Aw, or other works covered by the Aw
that can be equated with the said photographic works.
Image Carrier: the carrier on which a Photographic Work (whether
or not identifiable with the naked eye) is recorded, such as a slide,
negative, print, duplicate copy, Polaroid, CD-rom, DVD or
memory stick.
Photographer: the user as defined by Book 6, Article 231 of the
Dutch Civil Code.
Other Party: the other party as defined by Book 6, Article 231 of
the Dutch Civil Code.
Usage: copying and/or publication as defined by Article 1 in
conjunction with Articles 12 and 13 of the Aw.
2. Application
These General Terms and Conditions apply to all legal
relationships between a Photographer and Other Party, including
offers, confirmations of orders and oral or written agreements,
even after the termination of an agreement, unless the parties
have explicitly deviated from these Terms and Conditions in
writing.
3. Offer
Offers are entirely free of obligation unless expressly stated
otherwise. The Photographer has the right to withdraw his offer
up to two working days after receiving acceptance of this offer.
The offer does not oblige the Photographer to deliver part of the
agreement in return for a proportionate price.
These General Terms and Conditions apply to all legal
relationships between a Photographer and Other Party, including
offers, confirmations of orders and oral or written agreements,
even after the termination of an agreement, unless the parties
have explicitly deviated from these Terms and Conditions in
writing.
3. Offer
Offers are entirely free of obligation unless expressly stated
otherwise. The Photographer has the right to withdraw his offer
up to two working days after receiving acceptance of this offer.
The offer does not oblige the Photographer to deliver part of the
agreement in return for a proportionate price.
4. Price
4.1 If the parties have not agreed a price, then the
Photographer shall charge his usual rate.
4.2 If and insofar as there is no usual rate, the Photographer
shall fix the rate in a reasonable and fair way, bearing in mind (i) the
rates for similar commissions normally charged in the market
between similar customers and similar suppliers, with reference
to rates charged by the Photographer’s colleagues, (ii) what in
past cases was by right regarded as reasonable and fair, (iii)
comparable rates charged by photographers in neighbouring
countries, and (iv) the scope and extent of the desired usage of
the work by the Other Party.
4.3 If it is plausible that the Photographer had to spend more
and/or had to carry out additional work within reason, then these
costs and/or additional work shall also be payable by the Other
Party.
4.1 If the parties have not agreed a price, then the
Photographer shall charge his usual rate.
4.2 If and insofar as there is no usual rate, the Photographer
shall fix the rate in a reasonable and fair way, bearing in mind (i) the
rates for similar commissions normally charged in the market
between similar customers and similar suppliers, with reference
to rates charged by the Photographer’s colleagues, (ii) what in
past cases was by right regarded as reasonable and fair, (iii)
comparable rates charged by photographers in neighbouring
countries, and (iv) the scope and extent of the desired usage of
the work by the Other Party.
4.3 If it is plausible that the Photographer had to spend more
and/or had to carry out additional work within reason, then these
costs and/or additional work shall also be payable by the Other
Party.
5. Invoice and payment
5.1 The Other Party shall check that the invoice of the
Photographer is accurate. If the Other Party has not rejected the
invoice in writing and returned it to the Photographer within ten
working days of its date, providing legally relevant reasons for
doing so, then the invoice shall be deemed to be binding between
the parties and the Other Party loses any right to put in a claim.
5.2 Payment shall be made within thirty days of the date of the
invoice.
5.3 The Other Party shall pay the amount due to the
Photographer without any reduction or claim to compensation,
except for the deduction of any advance payments agreed
between the parties and previously made to the Photographer.
5.4 If the Photographer has not received the amount due within
the period specified in 5.2 above, the Other Party is in breach and
therefore liable for interest at the statutory rate plus 2%.
5.5 If the Other Party is in breach of any of its obligations under
the agreement, including any infringement of copyright, then it is
liable for all judicial and extra-judicial costs incurred in seeking
compensation for the same.
5.6 Any use of the Photographic Work whatsoever is prohibited
until the Other Party has paid any outstanding invoice of the
Photographer or has otherwise complied with any other
obligation arising from any agreement whatsoever with the
Photographer.
5.1 The Other Party shall check that the invoice of the
Photographer is accurate. If the Other Party has not rejected the
invoice in writing and returned it to the Photographer within ten
working days of its date, providing legally relevant reasons for
doing so, then the invoice shall be deemed to be binding between
the parties and the Other Party loses any right to put in a claim.
5.2 Payment shall be made within thirty days of the date of the
invoice.
5.3 The Other Party shall pay the amount due to the
Photographer without any reduction or claim to compensation,
except for the deduction of any advance payments agreed
between the parties and previously made to the Photographer.
5.4 If the Photographer has not received the amount due within
the period specified in 5.2 above, the Other Party is in breach and
therefore liable for interest at the statutory rate plus 2%.
5.5 If the Other Party is in breach of any of its obligations under
the agreement, including any infringement of copyright, then it is
liable for all judicial and extra-judicial costs incurred in seeking
compensation for the same.
5.6 Any use of the Photographic Work whatsoever is prohibited
until the Other Party has paid any outstanding invoice of the
Photographer or has otherwise complied with any other
obligation arising from any agreement whatsoever with the
Photographer.
6. Audit
6.1 If the payment is dependent in any way on any facts or
circumstances to be proven by the financial records of the Other
Party, then upon receiving such statement from the Other Party
the Photographer is entitled to have the financial records audited
by any RA/AA accountant he may choose to appoint.
6.2 In the event that the results of the audit differ by more than
2% from the statement and payment by the Other Party, then the
auditor’s expenses shall be paid in full by the Other Party. The
Other Party shall then also pay to the Photographer the amount
due on the basis of the correct information after this has been
invoiced.
6.1 If the payment is dependent in any way on any facts or
circumstances to be proven by the financial records of the Other
Party, then upon receiving such statement from the Other Party
the Photographer is entitled to have the financial records audited
by any RA/AA accountant he may choose to appoint.
6.2 In the event that the results of the audit differ by more than
2% from the statement and payment by the Other Party, then the
auditor’s expenses shall be paid in full by the Other Party. The
Other Party shall then also pay to the Photographer the amount
due on the basis of the correct information after this has been
invoiced.
7. Complimentary copy
Upon publication of a Photographic Work the Other Party should
immediately and free of charge provide the Photographer with a
complimentary copy of the publication.
Upon publication of a Photographic Work the Other Party should
immediately and free of charge provide the Photographer with a
complimentary copy of the publication.
8. Delivery
8.1 Image Carriers shall be delivered in the premises in which
the Photographer carries out his business. From the moment
they are sent out until the moment they are received back
undamaged by the Photographer, Image Carriers are at the risk of
the Other Party.
8.2 Digital files containing Photographic Works shall be
delivered following proper consultation and in a manner agreed
between both parties and are at the risk of the Other Party from
the moment they are sent.
8.3 In case no delivery time or date has been agreed, the
Photographer shall decide a reasonable period.
8.4 If the Photographer and the Other Party agree to fix the
delivery at an earlier date, the Photographer is entitled to increase
the price originally agreed by at least 50%.
8.5 Every delivery, including the delivery of any part of a
commission, may be invoiced separately if any part of a
commission can be valued separately.
8.1 Image Carriers shall be delivered in the premises in which
the Photographer carries out his business. From the moment
they are sent out until the moment they are received back
undamaged by the Photographer, Image Carriers are at the risk of
the Other Party.
8.2 Digital files containing Photographic Works shall be
delivered following proper consultation and in a manner agreed
between both parties and are at the risk of the Other Party from
the moment they are sent.
8.3 In case no delivery time or date has been agreed, the
Photographer shall decide a reasonable period.
8.4 If the Photographer and the Other Party agree to fix the
delivery at an earlier date, the Photographer is entitled to increase
the price originally agreed by at least 50%.
8.5 Every delivery, including the delivery of any part of a
commission, may be invoiced separately if any part of a
commission can be valued separately.
9. Complaints
Complaints regarding the Photographic Work supplied should be
reported to the Photographer in writing as soon as possible,
within a maximum of ten working days of its delivery. The
Photographer has the right to substitute the rejected work with
good work within a reasonable period, unless this would cause
disproportionate damage to the Other Party.
Complaints regarding the Photographic Work supplied should be
reported to the Photographer in writing as soon as possible,
within a maximum of ten working days of its delivery. The
Photographer has the right to substitute the rejected work with
good work within a reasonable period, unless this would cause
disproportionate damage to the Other Party.
10. Possession/ownership of Image Carriers
10.1 If there is no agreement that the Image Carriers remain in
the possession of the Other Party, it shall ensure that these are
returned immediately after the agreed usage to the
Photographer without any cost for the Photographer. Doing so
too late or not at all shall not result in the Photographer losing any
of his rights.
10.2 If Photographic Works have been delivered in digital form,
the Other Party shall immediately erase and/or destroy them
following the agreed usage and not store them for re-usage.
Doing so too late or not at all shall not result in the Photographer
losing any of his rights.
10.3 If an Image Carrier is not returned to the Photographer
within four weeks after the agreed period, it shall be regarded as
missing.
10.4 In the event that an Image Carrier is missing or damaged,
the Other Party shall compensate the Photographer for his loss.
10.5 Image Carriers remain the property of the Photographer.
The Other Party is only entitled to acquire the ownership if this
has been expressly agreed.
10.1 If there is no agreement that the Image Carriers remain in
the possession of the Other Party, it shall ensure that these are
returned immediately after the agreed usage to the
Photographer without any cost for the Photographer. Doing so
too late or not at all shall not result in the Photographer losing any
of his rights.
10.2 If Photographic Works have been delivered in digital form,
the Other Party shall immediately erase and/or destroy them
following the agreed usage and not store them for re-usage.
Doing so too late or not at all shall not result in the Photographer
losing any of his rights.
10.3 If an Image Carrier is not returned to the Photographer
within four weeks after the agreed period, it shall be regarded as
missing.
10.4 In the event that an Image Carrier is missing or damaged,
the Other Party shall compensate the Photographer for his loss.
10.5 Image Carriers remain the property of the Photographer.
The Other Party is only entitled to acquire the ownership if this
has been expressly agreed.
11. Submission on approval
11.1 Image Carriers submitted on approval which are not used
should be returned by the Other Party within ten working days
after they were received.
11.2 Digital files of Photographic Works submitted on approval
which are not used should be erased or destroyed by the Other
Party within ten working days after they were received.
11.3 In the event that Image Carriers and/or digital files
containing Photographic Works are retained beyond the agreed
period, the Other Party shall compensate the Photographer for
the damage he has suffered as a result.
11.4 The Other Party is not only obliged to return in time to the
Photographer the originally submitted Image Carriers; he shall not
copy and keep the Image Carriers in any form whatsoever, and/or
keep any digital files he received containing Photographic Works,
and must immediately destroy any such copy.
11.1 Image Carriers submitted on approval which are not used
should be returned by the Other Party within ten working days
after they were received.
11.2 Digital files of Photographic Works submitted on approval
which are not used should be erased or destroyed by the Other
Party within ten working days after they were received.
11.3 In the event that Image Carriers and/or digital files
containing Photographic Works are retained beyond the agreed
period, the Other Party shall compensate the Photographer for
the damage he has suffered as a result.
11.4 The Other Party is not only obliged to return in time to the
Photographer the originally submitted Image Carriers; he shall not
copy and keep the Image Carriers in any form whatsoever, and/or
keep any digital files he received containing Photographic Works,
and must immediately destroy any such copy.
12. Commission
12.1 A commission contract is an agreement in which the
Photographer undertakes to the Other Party to make and/or
supply Photographic Works.
12.2 A commission contract becomes binding when the offer of
the Photographer is accepted by the Other Party. This
acceptance can be confirmed by a written confirmation sent by
the Photographer to the Other Party to be retained by the Other
Party; or in the absence of the same, by the factual knowledge
and permission of the Other Party to the carrying out of the work
by the Photographer in accordance with the offer.
12.3 The Photographer is entitled to carry out every part of the
commission contract not explicitly described according to his
own technical and creative judgment.
12.4 Changes to the commission by the Other Party for
whatever reason and pending the carrying out of the commission
contract shall be at the expense of the Other Party. They will only
be carried out by the Photographer once a separate offer for the
additional costs has been signed in agreement by the Other Party,
and returned to the Photographer.
12.5 In the event that a commission contract has been cancelled
by the Other Party at whatever time and for whatever reason, the
Photographer is entitled to receive the agreed price, minus costs
not yet made.
12.6 Unless expressly agreed otherwise, the Photographer is at
complete liberty to choose the suppliers and third parties with
whom he will work in order to carry out the commission contract,
including models and stylists.
12.1 A commission contract is an agreement in which the
Photographer undertakes to the Other Party to make and/or
supply Photographic Works.
12.2 A commission contract becomes binding when the offer of
the Photographer is accepted by the Other Party. This
acceptance can be confirmed by a written confirmation sent by
the Photographer to the Other Party to be retained by the Other
Party; or in the absence of the same, by the factual knowledge
and permission of the Other Party to the carrying out of the work
by the Photographer in accordance with the offer.
12.3 The Photographer is entitled to carry out every part of the
commission contract not explicitly described according to his
own technical and creative judgment.
12.4 Changes to the commission by the Other Party for
whatever reason and pending the carrying out of the commission
contract shall be at the expense of the Other Party. They will only
be carried out by the Photographer once a separate offer for the
additional costs has been signed in agreement by the Other Party,
and returned to the Photographer.
12.5 In the event that a commission contract has been cancelled
by the Other Party at whatever time and for whatever reason, the
Photographer is entitled to receive the agreed price, minus costs
not yet made.
12.6 Unless expressly agreed otherwise, the Photographer is at
complete liberty to choose the suppliers and third parties with
whom he will work in order to carry out the commission contract,
including models and stylists.
13. Internet
13.1 In the event that the usage of Photographic Works on the
Internet is agreed, the Other Party shall ensure that the size of
the Photographic Works shown does not exceed 800 by 600
pixels.
13.2 The Other Party shall not make any copies of the
Photographic Works – digital or otherwise – other than those that
are strictly required for the agreed usage on the Internet. At the
completion of the agreed usage, the Other Party shall erase or
destroy the used (working) copy(ies) of the Photographic Works.
13.3 The Other Party shall provide the Photographer with
unlimited access free of charge to each part of its website on
which the Photographic Work is reproduced. If special
arrangements need to be made to achieve this, then the Other
Party will ensure these are made.
13.1 In the event that the usage of Photographic Works on the
Internet is agreed, the Other Party shall ensure that the size of
the Photographic Works shown does not exceed 800 by 600
pixels.
13.2 The Other Party shall not make any copies of the
Photographic Works – digital or otherwise – other than those that
are strictly required for the agreed usage on the Internet. At the
completion of the agreed usage, the Other Party shall erase or
destroy the used (working) copy(ies) of the Photographic Works.
13.3 The Other Party shall provide the Photographer with
unlimited access free of charge to each part of its website on
which the Photographic Work is reproduced. If special
arrangements need to be made to achieve this, then the Other
Party will ensure these are made.
14. Copyright
Copyright of the Photographic Works is owned by the
Photographer.
Copyright of the Photographic Works is owned by the
Photographer.
15. Licence
15.1 Use by the Other Party of a Photographic Work requires prior
written consent in the form of a licence the nature and scope of
which is described by the Photographer in the offer and/or the
confirmation of the commission and/or the relevant invoice.
15.2 If the scope of the licence is not specified, it shall not extend
beyond the right to one single use, in original form and for a
purpose, circulation and method as intended by the parties at the
time they enter into the agreement, in accordance with the
interpretation of the Photographer.
15.3 In the absence of a specifically-agreed method of publication
and/or described purpose and/or described circulation, the only
authority deemed to have been conferred is that which is included
in the licence as standard or which, given the nature and scope of
the agreement, necessarily follows from this.
15.4 If the Photographer has given permission for image
manipulation, electronically or otherwise, the result may only be
used once explicit written consent has been obtained.
15.1 Use by the Other Party of a Photographic Work requires prior
written consent in the form of a licence the nature and scope of
which is described by the Photographer in the offer and/or the
confirmation of the commission and/or the relevant invoice.
15.2 If the scope of the licence is not specified, it shall not extend
beyond the right to one single use, in original form and for a
purpose, circulation and method as intended by the parties at the
time they enter into the agreement, in accordance with the
interpretation of the Photographer.
15.3 In the absence of a specifically-agreed method of publication
and/or described purpose and/or described circulation, the only
authority deemed to have been conferred is that which is included
in the licence as standard or which, given the nature and scope of
the agreement, necessarily follows from this.
15.4 If the Photographer has given permission for image
manipulation, electronically or otherwise, the result may only be
used once explicit written consent has been obtained.
16. Sub-licences
Unless otherwise agreed, the Other Party is not entitled to grant
sub-licences to a third party.
Unless otherwise agreed, the Other Party is not entitled to grant
sub-licences to a third party.
17. Infringement of copyright
17.1 Each unauthorized use of a Photographic Work is deemed
to be an infringement of the Photographer’s copyright.
17.2 Any infringement entitles the Photographer to claim
compensation of at least three times the licence fee usually
charged by the Photographer for such type of use, without losing
any right to claim compensation of other damages (including the
right to compensation of all direct and indirect damages and all
judicial and extra-judicial costs actually incurred).
17.1 Each unauthorized use of a Photographic Work is deemed
to be an infringement of the Photographer’s copyright.
17.2 Any infringement entitles the Photographer to claim
compensation of at least three times the licence fee usually
charged by the Photographer for such type of use, without losing
any right to claim compensation of other damages (including the
right to compensation of all direct and indirect damages and all
judicial and extra-judicial costs actually incurred).
18. Photographer’s credit
18.1 The name of the Photographer should be clearly credited
alongside the Photographic Work used, or included elsewhere in
the publication with reference to the Photographic Work.
18.2 Failure to comply with this condition entitles the
Photographer to claim compensation of at least 100% of the
licence fee usually charged by the Photographer for such a type of
use, without losing any right to claim compensation of other
damages (including the right to compensation for all direct and
indirect damages and all judicial and extra-judicial costs actually
incurred).
18.3 If the Other Party has obtained written consent to
reproduce in whatever form the Photographic Work, it shall
ensure that the name of the Photographer accompanies these
reproductions. In the case of digital/electronic copies, the Other
Party shall also ensure that the entire metadata that was included
in the digital file by the Photographer – information according to
the EXIF, IPTC, XMP and ICC standards - shall be preserved.
18.1 The name of the Photographer should be clearly credited
alongside the Photographic Work used, or included elsewhere in
the publication with reference to the Photographic Work.
18.2 Failure to comply with this condition entitles the
Photographer to claim compensation of at least 100% of the
licence fee usually charged by the Photographer for such a type of
use, without losing any right to claim compensation of other
damages (including the right to compensation for all direct and
indirect damages and all judicial and extra-judicial costs actually
incurred).
18.3 If the Other Party has obtained written consent to
reproduce in whatever form the Photographic Work, it shall
ensure that the name of the Photographer accompanies these
reproductions. In the case of digital/electronic copies, the Other
Party shall also ensure that the entire metadata that was included
in the digital file by the Photographer – information according to
the EXIF, IPTC, XMP and ICC standards - shall be preserved.
19. Moral rights
19.1 The Other Party shall always respect the moral rights of the
Photographer in accordance with Article 25 (1)(c) and (d) Aw when
reproducing or publishing a Photographic Work.
19.2 Any infringement of these moral rights entitles the
Photographer to claim compensation of at least 100% of the
licence fee usually charged by the Photographer for such a type of
use, without losing any right to claim compensation of other
damages (including the right to compensation for all direct and
indirect damages and all judicial and extra-judicial costs actually
incurred).
19.1 The Other Party shall always respect the moral rights of the
Photographer in accordance with Article 25 (1)(c) and (d) Aw when
reproducing or publishing a Photographic Work.
19.2 Any infringement of these moral rights entitles the
Photographer to claim compensation of at least 100% of the
licence fee usually charged by the Photographer for such a type of
use, without losing any right to claim compensation of other
damages (including the right to compensation for all direct and
indirect damages and all judicial and extra-judicial costs actually
incurred).
20. Third party rights
20.1 If the Other Party publishes a Photographic Work, it is solely
responsible for obtaining the consent of those persons depicted
and/or other legally entitled parties. The Other Party indemnifies
the Photographer from all claims relating to the same.
20.2 The Photographer is obliged to cooperate in tracing the
persons referred to in this article.
20.1 If the Other Party publishes a Photographic Work, it is solely
responsible for obtaining the consent of those persons depicted
and/or other legally entitled parties. The Other Party indemnifies
the Photographer from all claims relating to the same.
20.2 The Photographer is obliged to cooperate in tracing the
persons referred to in this article.
21. Liability of the Photographer
The Photographer is not liable for any loss suffered by the Other
Party unless such loss is caused by the gross negligence or
deliberate act of the Photographer or any third party acting on his
behalf. Any liability is limited to the amount of the invoice or, if and
insofar as damage is insured, up to the amount of the sum
actually paid out under the insurance policy.
The Photographer is not liable for any loss suffered by the Other
Party unless such loss is caused by the gross negligence or
deliberate act of the Photographer or any third party acting on his
behalf. Any liability is limited to the amount of the invoice or, if and
insofar as damage is insured, up to the amount of the sum
actually paid out under the insurance policy.
22. Bankruptcy/moratorium
The Photographer and the Other Party are each entitled to
terminate the agreement with immediate effect if the Other Party
becomes bankrupt or is granted a moratorium. In the event of the
bankruptcy of the Other Party, the Photographer has the right to
terminate the licence, unless the consequences of doing so
would be in breach of the principles of reasonableness and
fairness.
The Photographer and the Other Party are each entitled to
terminate the agreement with immediate effect if the Other Party
becomes bankrupt or is granted a moratorium. In the event of the
bankruptcy of the Other Party, the Photographer has the right to
terminate the licence, unless the consequences of doing so
would be in breach of the principles of reasonableness and
fairness.
23. Choice of law and forum
23.1 All matters governed by these General Terms and
Conditions are subject to Dutch law.
23.2 The Vienna Sales Convention 1980 (CISG) shall not apply.
23.3 Any dispute concerning the wording and explanation of
these General Terms and Conditions and a legal relationship
between the Photographer and the Other Party shall be brought
before the court with relevant jurisdiction in the Netherlands.
DuPho. Association of Dutch Photographers,
Piet Heinkade 181-K,
1019 HC Amsterdam
23.1 All matters governed by these General Terms and
Conditions are subject to Dutch law.
23.2 The Vienna Sales Convention 1980 (CISG) shall not apply.
23.3 Any dispute concerning the wording and explanation of
these General Terms and Conditions and a legal relationship
between the Photographer and the Other Party shall be brought
before the court with relevant jurisdiction in the Netherlands.
DuPho. Association of Dutch Photographers,
Piet Heinkade 181-K,
1019 HC Amsterdam