You’re Sending Your Clients Terms & Conditions, Right?

You’re Sending Your Clients Terms & Conditions, Right?

Whenever you sign up for a service like Facebook or Instagram, you are agreeing to abide by their Terms of Service. The TOS govern the rules and relationship between the business entity and its customer. It would be irresponsible for any business to engage with their customers without one.

Similarly, any photographer who provides estimates and invoices to his/her clients should include a set of Terms and Conditions. The T&C help establish legal rules around intellectual property, payment terms and dispute resolution (among other things). Often, photographers (especially part-timers/hobbyists who aren’t used to licensing photography) rely on the most basic of licensing agreements that might be conveyed in the body of an email (e.g. “this photo for this duration for this amount of money). This approach might work sometimes (and definitely is a “friendly” way to deal with your clients), but doing so provides you with a tougher legal hill to climb in the case of a dispute. You can’t complain that someone broke the rules if you never articulated them in the first place.

Below are two annotated, sample T&Cs. The first is from noted photographer/author John Harrington’s book Best Business Practices for Photographers, Second Edition (reproduced with permission). The second is a sample T&C from ASMP, the premier photo trade organization dedicated to the advocacy of professional photographers. You might also consider joining the ASMP.

Both T&C are fairly similar in content, but structured differently. Either would work for most photographers (although not for retail photography, e.g. weddings). Obviously, if you use one of these T&C, you should insert your company’s name and further personalize the document. These documents shouldn’t be construed as legal advice. Consult with a lawyer. Spending a few hundred bucks to get your house in order could save you thousands of dollars down the line.

Click on a highlighted area below to see annotations.

bestbusiness

John Harrington Photography (JHP) T&C

  1. Invoices. Client shall pay JHP invoices upon receipt. There will be a 1.5% late payment charge on amounts due and unpaid within ten (10) days of the mailing of the invoice. On all amounts thereafter due and unpaid there will be a 1.5% per month interest charge, accruing daily, until the amount due is paid in full, not to exceed the maximum amount permissible by law. Client shall be solely responsible for the payment of applicable sales, use, personal property, and other taxes assessed upon the Estimated and billed services and expenses, and shall hold JHP harmless for and from any liability assessed therefore. All fees shall be paid in U.S. Funds without deduction for any applicable foreign taxes withheld at the source.
  2. Services & Costs. Estimated amounts are only for the services and costs described in the Estimate. There will be additional charges for any additional services and costs rendered or incurred for performance. Additional charges will be invoiced to the Client.
  3. Cancellation, Postponement, Delay, And Additional Time. If Client postpones or cancels services or expenditures once this agreement has been confirmed, and time committed, the full amount of the photographer’s fees and any expenses incurred that are associated with this assignment shall be due and payable to JHP as a cancellation or postponement charge. The Client will be charged the full amount of the Estimate, in addition to the cancellation or postponement charge, where the Estimated services or expenditures are performed or incurred after a cancellation of postponement. The Client will be charged for any delays in performance which are not the fault of JHP, and as set forth in the Estimate. In the event that JHP services which are Estimated for any day extend beyond eight (8) consecutive hours in such day, there shall be additional charges to Client for assistants and crew members, which shall be one and half times their hourly rate for more than eight and up to twelve hours, and which shall be double their hourly rate for more than twelve hours in such a day.
  4. Approval. Client’s authorized representative shall be present during photography to approve JHP’s photographic services and changes thereto. The client shall not participate in or interfere with JHP’s performance of photographic services, and JHP shall be solely responsible for and shall exercise its sole discretion, for determining the artistic content, composition, audience appeal, and outcome of the work performed. Work which the Client does not reject, or which Client does not request JHP to correct during the performance of photography, at the time the services are being performed, shall be deemed accepted.
  5. Photographic Material. The photographic materials referenced in the Estimate are deliverable only in the format therein specified. The photography services performed by JHP will be those of JHP or its employees or contractors. JHP shall make a good faith effort in the performance of all services. No release exists and none shall be provided by JHP for any other component of the photographic material including without limitation those for models, minors, rights of publicity, privacy, property, trademarks, copyright, patents, misaffiliation, defamation or for any other cause for liability or otherwise, unless expressly listed in the Estimate and provided in writing by JHP at the time of JHP’s delivery of the photographic material. JHP may but shall not be required to keep archives or copies of the photographic materials. Except for those expressly identified as being for permanent transfer to Client, and unless specified by the express terms of the Estimate, all photographic materials, remain the property of JHP and shall be redelivered to JHP within thirty (30) days of first publication, or within (60) days of delivery, whichever occurs first. Client shall destroy all digital files within one week of first publication, or at the conclusion of the term that the rights have been licensed for. As reasonable liquidated damages, Client agrees to pay JHP $2,500 for any original image which is lost by Client, its carriers, consigns, and bailees, unless JHP has a high quality reproducable duplicate of such original image.
  6. Limitations on Liability. The photographic material is deliverable in the specified format, AS IS, where is, at the place designated in the Estimate, or if none, at JHP’s principal place of business. Except as provided for in the Estimate, the photographic materials will not be insured. JHP shall not be responsible for the risk of loss for the photographic materials while the same are in JHP’s possession or in the hands of any carrier, beyond the amount of any insurance, if any, procured by JHP for Client at Client’s written request and expense as shown in the Estimate. Except as expressly provided for in the Estimate, JHP shall obtain no independent insurance for the Photographic materials. JHP makes no warranties, express or implied, with regard to the deliverable photographic materials. ALL WARRANTIES OF MERCHANTABILITY AND OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL OTHER WARRANTIES EXPRESS OR IMPLIED, ARE EXPRESSLY DISCLAIMED to the fullest extent permitted by law. In the event that JHP work becomes lost, unusable, or damaged due to equipment malfunction, processing, or technical error prior to delivery, JHP shall at JHP’s sole election be provided by Client with a reasonable opportunity to perform the photographic services to replace the lost, unusable or damaged work; and JHP may require that JHP first be paid in full for such work. JHP’s liability to client for any acts or omissions arising out of or in connection with this agreement shall not, in any event, exceed the amount paid by Client to JHP under this agreement. In no event shall JHP be responsible for incidental, or consequential damages. Client shall indemnify, protect, hold harmless, and defend through Counsel of JHP’s choosing, JHP from and for any and all claims, demands, actions, proceedings, and costs (including without limitation reasonable attorneys fees, court costs, and litigation related expenses) which arise out of or in connection with JHP’s performance of services for Client, or Client’s use of JHP work, except where the same arises solely from JHP’s own negligence.
  7. Rights. Except as expressly licenses in the Estimate, all right, title, and interest, in and to the photographic materials, including without limitation the copyrights, design patents, publicity, attribution (and other rights in the photographic materials), including without limitation any renewals or extensions thereof, now or hereafter arising, shall be and shall remain except as may be subsequently licensed by JHP the sole property of JHP in perpetuity, throughout the world. All permissions must be signed by JHP in writing and are otherwise invalid. Permissions granted to Client are expressly conditioned upon payment in full; absent full payment such permissions shall be deemed void ab initio. Except as expressly licensed in the Estimate, permission to include JHP work in a collective work includes the work only in the stated media and excludes permission to include the work in other media, or any revision of the collective work or later series. The client is not authorized to remove copyright management information from JHP work, and any authorization granted to client to use JHP work is conditioned on the Client’s inclusion of the copyright management information which is designated in the Estimate, which in no event shall include less than JHP’s authorship designation and copyright notice, and such other information as would permit through a reasonably diligent search the identification of JHP as copyright owner. Permissions granted may not be assigned or sub-licensed.
  8. Disputes. In the event of a dispute arising under this agreement such dispute shall at JHP’s election be resolved exclusively by binding arbitration in accordance with the rules of the American Arbitration Association. The arbitrator shall determine the prevailing party and shall order that they be reimbursed their arbitration fees, arbitration costs, and legal fees and costs incurred for and in connection with the arbitration. The arbitration shall be conducted in Washington, DC and the decision of the Arbitrator shall be final, binding, and enforceable in any court having jurisdiction. The parties consent to the personal jurisdiction and exclusive venue of of the courts of the District of Columbia for any litigation commenced under or in connection with this agreement. The laws of the District of Columbia, without regard to its rules for conflicts of law resolution, shall apply in the construction of this agreement. Actual attorneys’ fees and all actual costs shall be award to the prevailing party against the losing party in any such litigation.

asmp

ASMP Terms and Conditions for Your Forms

[1] Definition: “Image(s)” means all visual representations furnished to Client by Photographer, whether captured, delivered, or stored in photographic, magnetic, optical, electronic, or any other media. Unless otherwise specified on the front of this document, Photographer may deliver, and Client agrees to accept, Images encoded in an industry-standard data format that Photographer may select, at a resolution that Photographer determines will be suitable to the subject matter of each Image and the reproduction technology and uses for which the Image is licensed. It is Client’s responsibility to verify that the digital data (including color profile, if provided) are suitable for reproduction of the expected quality and color accuracy, and that all necessary steps are taken to ensure correct reproduction. If the data are not deemed suitable, Photographer’s sole obligation will be to replace or repair the data, but in no event will Photographer be liable for poor reproduction quality, delays, or consequential damages. Unless otherwise specifically provided elsewhere in this document, Photographer has no obligation to retain or archive any of the Images after they have been delivered to Client. Client is responsible for sending an authorized representative to the assignment or for having an authorized representative review the images remotely during the assignment. If no review is made during the assignment, Client is obligated to accept Photographer’s judgment as to the acceptability of the Images.

[2] Rights: All Images and rights relating to them, including copyright and ownership rights in the media in which the Images are stored, remain the sole and exclusive property of Photographer. Unless otherwise specifically provided elsewhere in this document, any grant of rights is limited to a term of one (1) year from the date hereof and to usage in print (conventional non-electronic and non-digital) media in North America. Unless otherwise specifically provided elsewhere in this document, no image licensed for use on a cover of a publication may be used for promotional or advertising purposes without the express permission of Photographer and the payment of additional fees. No rights are transferred to Client unless and until Photographer has received payment in full. The parties agree that any usage of any Image without the prior permission of Photographer will be invoiced at three times Photographer’s customary fee for such usage. Client agrees to provide Photographer with three copies of each published use of each Image not later than 60 days after the date of first publication of each use. If any Image is being published only in an electronic medium, Client agrees to Provide Photographer with an electronic tearsheet, such as a PDF facsimile or URL of the published use of each such photograph, within fifteen (15) days after the date of first publication of each use. Unless otherwise specifically provided elsewhere in this document, all usage rights are limited to print media, and no digital usages of any kind are permitted. This prohibition includes any rights or privileges that may be claimed under §201(c) of the Copyright Act of 1976 or any similar provision of any applicable law. Digital files may contain copyright and other information embedded in the header of the image file or elsewhere; removing and/or altering such information is strictly prohibited and constitutes violation of the Copyright Act. All fees and expenses payable under this agreement are required irrespective of whether Client makes actual use of the Images or the licenses to use them. Unless specifically provided elsewhere in this document, no reprographic, reprint, republication or other secondary reproduction usages may be made, and usage rights are granted only for one-time, English language North American editorial print editions of the publication listed on the front of this document and six month searchable archive use on the website of that publication.

[3] Return and Removal of Images: Client assumes insurer’s liability (a) to indemnify Photographer for loss, damage, or misuse of any Images, and (b) to return all Images prepaid and fully insured, safe and undamaged, by bonded messenger, air freight, or registered mail. Unless the right to archive Images has been specifically granted by Photographer on the front of this document, Client agrees to remove and return or destroy all digital copies of all Images. All Images shall be returned, and all digital files created by or on behalf of Client containing any Images shall be delivered to Photographer, deleted or destroyed, within thirty (30) days after the later of: (1) the final licensed use as provided in this document, and (2) if not used, within thirty (30) days after the date of the expiration of the license. Failure to return Images on time will result in loss to Photographer due to his resulting inability to license such Images. Client therefore agrees to pay a holding fee of five dollars and fifty cents ($5.50) per day for each image from the return date until the day on which the Images are actually received by Photographer. Client assumes full liability for its principals, employees, agents, affiliates, successors, and assigns (including without limitation independent contractors, messengers, and freelance researchers) for any loss, damage, delay in returning or deleting, failure to return, or misuse of the Images.

[4] Loss or Damage: Reimbursement by Client for loss or damage of each original photographic transparency or film negative (“Original[s]”) shall be in the amount of One Thousand Five Hundred Dollars ($1,500), or such other amount if a different amount is set forth next to the lost or damaged item on the reverse side or attached schedule. Reimbursement for loss or damage of each non-digital duplicate image shall be in the amount of Two Hundred Dollars ($200). Reimbursement for loss or damage of each digital file shall be in the amount of Two Hundred Dollars ($200). Reimbursement by Client for loss or damage of each item other than as specified above shall be in the amount set forth next to the item on the reverse side or attached schedule. Photographer and Client agree that said amount represents the fair and reasonable value of each item, and that Photographer would not sell all rights to such item for less than said amount. Client understands that each Original is unique and does not have an exact duplicate, and may be impossible to replace or re-create. Client also understands that its acceptance of the stipulated value of the Images is a material consideration in Photographer’s acceptance of the terms and prices in this agreement.

[5] Photo Credit: All published usages of Images will be accompanied by written credit to Photographer or copyright notice as specified on the reverse side. If no placement of a credit or copyright notice is specified on the reverse side, no credit or notice is required. If a credit is required but not actually provided, Client agrees that the amount of the invoiced fee will be subject to a three-times multiple as reasonable compensation to Photographer for the lost value of the credit line.

[6] Alterations: Client will not make or permit any alterations, including but not limited to additions, subtractions, or adaptations in respect of the Images, alone or with any other material, including making digital scans unless specifically permitted on the reverse side. Client may not make or permit any alterations, including but not limited to additions, subtractions, or adaptations in respect of the Images, alone or with any other material, including making digital scans unless specifically permitted on the reverse side, except that cropping and alterations of contrast, brightness, and color balance, consistent with reproduction needs may be made. Client may make or permit any alterations, including but not limited to additions, subtractions, or adaptations in respect of the Images alone or with any other material, including making digital scans, subject to the provisions as stated in [7] below.

[7] Indemnification: Client will indemnify and defend Photographer against all claims, liability, damages, costs, and expenses, including reasonable legal fees and expenses, arising out of the creation or any use of any Images or arising out of use of or relating to any materials furnished by Client. Unless delivered to Client by Photographer, no model or property release exists, and it is Client’s responsibility to obtain the necessary permissions for usages that require any model or property releases not delivered by Photographer. It is Client’s sole responsibility to determine whether any model or property releases delivered by Photographer are suitable for Client’s purposes. Photographer’s liability for all claims shall not exceed in any event the total amount paid under this invoice.

[8] Assumption of Risk: Client assumes full risk of loss or damage to or arising from materials furnished by Client and warrants that said materials are adequately insured against such loss, damage, or liability.

[9] Transfer and Assignment: Client may not assign or transfer this agreement or any rights granted under it. This agreement binds Client and inures to the benefit of Photographer, as well as their respective principals, employees, agents, and affiliates, heirs, legal representatives, successors, and assigns. Client and its principals, employees, agents, and affiliates are jointly and severally liable for the performance of all payments and other obligations hereunder. No amendment or waiver of any terms is binding unless set forth in writing and signed by the parties. However, the invoice may reflect, and Client is bound by, Client’s oral authorizations for additional Images, fees and expenses that could not be confirmed in writing because of insufficient time or other practical considerations. This agreement incorporates by reference the Copyright Act of 1976, as amended. It also incorporates by reference those provisions of Article 2 of the Uniform Commercial Code that do not conflict with any specific provisions of this agreement; to the extent that any provision of this agreement may be in direct, indirect, or partial conflict with any provision of the Uniform Commercial Code, the terms of this agreement shall prevail. To the maximum extent permitted by law, the parties intend that this agreement shall not be governed by or subject to the UCITA of any state. Photographer is an independent contractor and not an employee. If photographer is deemed under any law to be an employee of Client, and if the Images are therefore considered works made for hire under the U.S. Copyright Act, Client hereby transfers the copyright to all such Images to Photographer. Client agrees to execute any documents reasonably requested by Photographer to accomplish, expedite or implement such transfer.

[10] Disputes: Except as provided in [11] below, any dispute regarding this agreement shall, at Photographer’s sole discretion, either:

(1) be arbitrated in Photographer’s City, Photographer’s State, under rules of the American Arbitration Association and the laws of Photographer’s State; provided, however, that irrespective of any specific provision in the rules of the American Arbitration Association, the parties are not required to use the services of arbitrators participating in the American Arbitration Association or to pay the arbitrators in accordance with the fee schedules specified in those rules. Judgment on the arbitration award may be entered in any court having jurisdiction. Any dispute involving $5,000 or less may be submitted without arbitration to any court having jurisdiction thereof.

OR

(2) be adjudicated in Photographer’s City, Photographer’s State under the laws of the United States and/or of Photographer’s State.

(3) In the event of a dispute, Client shall pay all court costs, Photographer’s reasonable legal fees, and expenses, and legal interest on any award or judgment in favor of Photographer.

[11] Federal Jurisdiction: Client hereby expressly consents to the jurisdiction of the Federal courts with respect to claims by Photographer under the Copyright Act of 1976, as amended, including subsidiary and related claims.

[12] Overtime: In the event a shoot extends beyond eight (8) consecutive hours, Photographer may charge for such excess time of assistants and freelance staff at the rate of 11/2 times their hourly rates.

[13] Reshoots: Client will be charged 100 percent fee and expenses for any reshoot required by Client. For any reshoot required because of any reason outside the control of Client, specifically including but not limited to acts of God, nature, war, terrorism, civil disturbance or the fault of a third party, Photographer will charge no additional fee, and Client will pay all expenses. If Photographer charges for special contingency insurance and is paid in full for the shoot, Client will not be charged for any expenses covered by insurance. A list of exclusions from such insurance will be provided on request.

[14] Assignment Cancellations and Postponements: Cancellations: Client is responsible for payment of all expenses incurred up to the time of cancellation of the assignment, plus 50 percent of Photographer’s fee; however, if notice of cancellation is given less than two (2) business days before the shoot date, Client will be charged 100 percent fee. Postponements: Unless otherwise agreed in writing, Client will be charged a 100 percent fee if postponement of the assignment occurs after photographer has departed for location, and 50 percent fee if postponement occurs before departure to location. Fees for cancellations and postponements will apply irrespective of the reasons for them, specifically including but not limited to weather conditions, acts of God, nature, war, terrorism, civil disturbance, and the fault of a third party.

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This article was written by

Allen Murabayashi is the Chairman and co-founder of PhotoShelter.

There are 4 comments for this article
  1. Petr at 12:12 pm

    Allen,
    Thank you for this post.
    I have one question. Are the T&C pretty much the same thing as a Client Service Agreement or are those two separate documents?
    Thank you, Petr

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