Jolanda Sprokholt Photography uses the DuPho’s Terms and Conditions for all transactions. These are described below.
Terms and conditions of the DuPho d.d. January 2015.
For the time being, these Terms and Conditions shall mean:
Aw: Copyright Law 1912
Photographic work: photographic works as referred to in Article 10(1)(9) Aw, or other works within the meaning of the Aw, which can be aligned with such photographic works.
Image carrier: the carrier on which a Photographic work (recognisable or not) is recorded, such as a slide, negative, print, polaroid, CD-ROM, DVD or USB stick.
Photographer: the user in the sense of art. 6:231 BW.
Counterparty: the other party in the sense of Art. 6:231 BW.
Use: reproduction and/or disclosure within the meaning of Article 1 y. 12 and 13 Aw.
These Terms and Conditions shall apply to all legal relations between a Photographer and a Counterparty, including tenders, contract confirmations and oral or written agreements, even after the termination of an agreement, unless the parties have deviated in writing and expressly from those terms.
Tenders are entirely non-binding, unless expressly stated otherwise. The Photographer has the right to withdraw this offer up to two working days after receiving acceptance of his offer. The tender does not require the delivery of part of the performance at a proportional price.
4.1 If no remuneration has been agreed by the parties, the remuneration used by the Photographer is applicable.
4.2 If, to the extent that a customary fee cannot be considered, the Photographer will, in fairness and fairness, determine the remuneration, whereby the Photographer will be able to,(i) address, inter arreduction of the fees in the market for comparable contracts, between comparable clients and comparable contractors, referring to fees such as those charged by the Photographer’s colleagues , (ii) which has been legally regarded as reasonable and equitable in previous cases, (iii) comparative fees as charged by photographers in surrounding countries and (iv) the extent and scope of the use of the work desired by the Other Party.
4.3 If it is plausible that the Photographer has incurred higher costs and/or carried out additional work, which were reasonably necessary, these costs and/or additional work will also be eligible for reimbursement by the Other Party.
5. Invoice and payment
5.1 The Other Party will check the Photographer’s invoice for inaccuracies. If the Other Party has not in writing rejected the invoice stating relevant reasons within 10 working days of the date of invoice, stating the relevant reasons and returned it to the Photographer, the invoice in question will be binding between the parties and any right of the Other Party to reclamation will be voided.
5.2 Payment must be made within 30 days of the date of invoice.
5.3 The Other Party shall make the payments payable to the Photographer without a discount or recourse to compensation, except for settlements with transferable deposits recognised between the parties, which he has provided to the Photographer.
5.4 If the Photographer has not received the amount due within the time limit referred to in 5.2, the Other Party shall be liable for default and therefore the statutory interest, plus 2%.
5.5 If the Other Party is in default or otherwise fails to fulfil one or more of its obligations, including a copyright infringement, all costs for obtaining payment shall be borne in and out of court.
5.6 No use of photographic work in any way is permitted, as long as the Other Party has not yet fulfilled any outstanding invoice from the Photographer or otherwise has not fully complied with any obligation arising from any agreement with the Photographer.
6.1 If the remuneration is in any way dependent on facts or circumstances, which must be apparent from the administration of the Other Party, the photographer has the right to check the client’s records by appointing an RA/AA accountant to be signed by the photographer.
6.2 In the event that the outcome of the audit differs more than 2% from the other party’s declaration and settlement, the costs of the audit will be entirely borne by the Other Party. In addition, the Other Party will then pay the Photographer after billing on the basis of the actual data.
7. Proof copy
When disclosing a Photographic work, the Other Party must forward to the Photographer immediately and without costing a copy of the publication.
8.1 Image carriers are supplied in the premises where the Photographer carries out his business. Sent Image Carriers are from the moment of shipment for risk from the Other Party until the moment the Image Carriers are received by the Photographer undamaged return.
8.2 Digital files with Photographic works are delivered in good consultation and in a manner agreed by both parties and are at risk from the Other Party from the moment of dispatch.
8.3 If no delivery time has been agreed, it shall be reasonably determined by the Photographer.
8.4 If the Photographer and the Other Party agree that the delivery time will be brought forward, the Photographer has the right to increase the originally agreed fee by at least 50%.
8.5 Each delivery, including a supply of part of a composite contract, may be billed separately if part of a composite contract is of separate value.
Complaints concerning the work provided should be communicated in writing to the Photographer as soon as possible, but at least within 10 working days of delivery of the Photographic works. The Photographer has the right to do good work for rejected work within a reasonable period of time, unless this would lead to disproportionate harm to the Other Party.
10. Property/property Image carriers
10.1 If it has not been agreed that Image Bearers remain in the possession of the Other Party, it shall take care of the Photographer without delay after the agreed use for free return. Failure or failure to fulfil this obligation in time does not result in the loss of any right of the Photographer.
10.2 If Photographic works have been supplied as a digital file, the Other Party will delete and/or destroy them without delay after the agreed use and will not store them for reuse. Failure or failure to fulfil this obligation in time does not result in the loss of any right of the Photographer.
10.3 If an Image Bearer has not been returned to the Photographer within four weeks of the agreed deadline, he is considered missing.
10.4 In the event of a missing person or damage to an Image Bearer, the Other Party is required to compensate for the damage suffered by the photographer.
10.5 Image bearers remain the property of the Photographer. The Other Party is only entitled to transfer of ownership if this is expressly agreed.
11. Sight shipments
11.1 Image carriers made available as visual consignments which are not used must be returned by the Other Party within 10 working days of receipt.
11.2 Digital files containing Photographic works that are not used must be deleted or destroyed by the Other Party within 10 working days of receipt.
11.3 In the event that image carriers and/or digital files containing Photographic works are retained for longer than the agreed period, the Other Party is required to compensate for the damage suffered by the Photographer.
11.4 The Other Party is not only obliged to return timely images to the Photographer of the original image carriers sent to him, but he will also not retain any manufactured duplicate in any form of the Image Carriers and/or received digital files with Photographic works and will immediately destroy any such duplicate.
12.1 A contract is an agreement whereby the Photographer commits himself to the Other Party to make and/or deliver Photographic works.
12.2 A contract of engagement is concluded by the Other Party’s acceptance of the Photographer’s offer. This acceptance may be demonstrated in part by the photographer’s sending to the Other Party a written confirmation of orders held by the Other Party or, failing that, from the actual knowledge and toleration of the Other Party of the photographer’s work carried out in accordance with the tender.
12.3 The Photographer has the right to carry out everything that is not expressly defined in a contract agreement in his own technical and creative understanding.
12.4 Amendments to the contract by the Other Party for whatever reason and pending the performance of the contract shall be borne by the Other Party and will only be carried out by the Photographer after separate tenders of additional costs signed by the Other Party for agreement and returned to the Photographer.
12.5 In the event of the cancellation of a contract by the Other Party at any time and for whatever reason, the Photographer shall be entitled to the agreed compensation, less the costs not incurred. 12.6 Unless expressly agreed otherwise, the Photographer is completely free in the choice of the suppliers and third parties with whom the Photographer works in order to carry out the contract agreement, including models and stylists.
13.1 In the event of agreed use on the Internet, the Other Party will ensure that the dimensions of the Photographic work it depicts on the Internet do not exceed 800 by 600 pixels.
13.2 The Other Party will not make copies of photographic works other than those which are strictly necessary for the agreed use on the Internet. At the end of the agreed use, the user will erase or destroy the used (work) copy(s) of the Photographic work.
13.3 The Other Party will provide the Photographer with free access to every part of its website on which the Photographic work is depicted. If special facilities are required, he will provide them to the Photographer.
The copyright to the Photographic works rests with the photographer.
15.1 Permission for the use of a Photographic work by the Other Party shall be granted only in writing and prior in the form of a licence as described by the Photographer by nature and extent in the tender and/or the contract confirmation and/or the accompanying invoice.
15.2 If nothing has been determined as to the size of the licence, it shall never exceed the right to one-off use, in the unaltered form, for the purpose, circulation and manner as the parties to the contract have intended in accordance with the photographer’s understanding.
15.3 In the absence of a specifically agreed method of publication and/or defined purpose and/or print run, only those powers shall be deemed to have been given, which are included by default in the licence or necessarily arising from the nature and scope of the agreement.
15.4 If the Photographer has authorised electronic or other forms of image manipulation, the result can only be used after his express written approval.
Unless otherwise agreed, the Other Party is not authorized to grant sublicenses to third parties.
17. Copyright infringement
17.1 Any use of a Photographic work that has not been agreed is considered to be an infringement of the Photographer’s copyright.
17.2 In the case of infringement, the Photographer is entitled to compensation of at least three times the licence fee used by the Photographer for such use, without losing any right to compensation for other damages suffered (including the right to compensation for all direct and indirect damages and all actual legal and extrajudicial costs).
18.1 The name of the Photographer should be clearly mentioned in a used Photographic work, or with a reference to the Photographic work should be included in the publication.
18.2 In the case of non-compliance with this condition, the Photographer is entitled to compensation of at least 100% of the licence fee used by the Photographer, without losing any right to compensation for other damages suffered (including the right to compensation for all direct and indirect damages and all actual legal and extrajudicial costs).
18.3 Where the Other Party has obtained written permission to multiply the Photographic work in any form, it shall be required to ensure that the photographer’s name is affixed to these reproductions. In the case of digital/electronic copies, the Other Party is also required to ensure that the entire metadata – as made by the Photographer as part of the digital file – is retained; this is information according to the EXIF, the IPTC, the XMP and the ICC standards.
19. Personality rights
19.1 The Other Party shall at all times respect the personality rights of the photographer in accordance with Article 25(1)(c) and (d Aw) when reprocaling and disclosing a Photographic work.
19.2 In the event of a breach of the said personality rights, the Photographer is entitled to compensation of at least 100% of the licence fee used by the Photographer, without losing any right to compensation for other damages suffered (including the right to compensation for all direct and indirect damages and all actual legal and extrajudicial costs).
20. Rights of third parties
20.1 The Other Party which makes a Photographic work public is responsible, to the exclusion of others, for obtaining consent from those portrayed and/or other rightholders. The Other Party exempts the Photographer from all animal claims.
20.2 The Photographer is obliged to cooperate in the search for the persons referred to in this Article.
21. Liability Photographer
The Photographer shall not be liable for any damage seen for the Other Party, unless there is gross guilt or intent on the side of the Photographer or persons engaged by him. In any event, liability shall be limited to the amount of the invoice or, if and in so far as there is an insured damage, up to the amount of the summation actually paid out under the insurance.
Both the Photographer and the Other Party have the right to terminate the agreement immediately in the event of bankruptcy or suspension of payment from the other party. In the event of bankruptcy of the Other Party, the Photographer has the right to terminate the license granted, unless the consequences are contrary to reasonableness and fairness.
23. Choice of law and forum
23.1 All cases in which these Terms and Conditions apply are governed by Dutch law.
23.2 The applicability of the Vienna Convention for Sale 1980 (CISG) is excluded.
23.3 Any dispute relating to the text and explanation of these Terms and Conditions and a legal relationship between the Photographer and the Other Party will be referred to the competent court in the Netherlands.
DuPho Dutch Professional Photographers.
Piet Heinkade 181-K
1019 HC Amsterdam
These Terms and Conditions have been filed with the
Amsterdam Court under number [19/2015