Every business day, photographers have a need to communicate transactional information to their prospects and clients. It might be the information in an estimate, the agreement expressed in a confirmation, or the verification of a delivery of photographs. Regardless of the nature of the communication, records of your communications are important, especially when they set the terms, conditions, price, and license to use your work.
Timely communication is very important. You should begin to communicate the transactional details of an assignment, whether proposed or awarded, immediately after your first contact with the prospective client. Too many photographers rely on their invoice to set the terms of their agreements. The danger of expressing your terms on the invoice is that it arrives after the work is done. If it contains any surprises in its content, which were not discussed prior to the work being done, it will be contestable, and could be considered an attempt to impose a contract after the fact. In such a case, some or all of the invoice’s terms would not be binding on the client.
Keep in mind that you always want to present your terms, fees, etc., before the work is started. If a client has full access to your terms and other details prior to the work being started, and allows you to start and complete the work, it will be difficult for the client to protest. When a client is fully informed and proceeds with the work, it implies that a contract was in force, and that the conduct of the client (in allowing the work to proceed) amounts to a consent to your previously presented stipulations, terms, conditions, fees, and so on.
A contract is formed between parties when certain conditions exist. There must be an offer, an acceptance, and consideration. An estimate is an offer to perform work with certain stipulations. An acceptance could be a purchase order matching the estimate, an email awarding you the work, a client-signed confirmation, or an oral OK on the telephone.
It is this oral acceptance that can present a problem, if denied later. This is where consent by conduct, allowing you to do the work, can be a factor. Remember: Unless your stipulations were in the client’s hands before the consent by conduct, you might not be able to enforce your stipulations. Do your paperwork in a timely fashion.
You should be aware that having the correct forms and releases is no guarantee that you will not be involved in a legal dispute. The purpose of correct paperwork is to avoid misunderstandings, to lessen the possibility of legal disputes, and to protect you, and strengthen your position if they do happen.
ASMP recommends incorporating these forms into your business workflow.
These forms are samples. You will likely need to customize them for your business, but the essential ingredients are here, along with tips on how to fill them out. The use of a Terms and Conditions template on the back of your estimate, confirmation, delivery memo and invoice is what makes these contractual agreements complete. Do not forget this important step.
An estimate is used to communicate the projected cost of the work to a prospective client. Additionally, it should embody other important details. An estimate is a description of the work to be done, the media usage allowed for the stated fee, and the terms and conditions that govern the transaction, performance, payment, etc.
The estimate should be sent to the client prior to starting any work. Even in cases where an estimate is provided on the telephone, you should alert your client that you are sending a written estimate confirming the telephone estimate.
Email is the most common way to deliver this form. Make sure your terms and conditions template is included as the last page of the pdf when sending this form.
The Assignment Confirmation
After your estimate is received, negotiated, and approved, including an oral acceptance over the telephone, you should confirm the final details of the transaction. Having the client sign a copy of the estimate and return a copy to you may also complete the transaction. Sending a separate confirmation to the client that embodies the details of the transaction is even better. It may be the same form as your estimate but with a different heading, or a letter referring to the estimate, stating that the work will proceed under the details as embodied therein, with a copy attached.
Again, the confirmation should be sent to the client prior to the start of the work if it is to have maximum force in any dispute that might arise. Work that is properly estimated and confirmed prior to the start of work is the least likely to be contested later. The properly executed confirmation, more than any other document, is an “ounce of prevention”.
Email is the most common way to deliver this form. Make sure your terms and conditions template is included as the last page of the PDF when sending this form.
The Change Order
This form is used to verify client approval for changes made during an assignment. Due to the circumstances of the project, a signed change order form may not be practical. Use oral or email agreements when necessary and follow-up with this form as soon as possible.
The Delivery Memo
When you ship or electronically deliver your images, you should include a delivery memo. It is like a packing slip, detailing the contents of the shipment and the information needed for the client to match the shipment of work to its specific project.
In this age of delivering digital files, it is critical to remind clients that metadata and color profiles be preserved. This memo is also the place for you to remind your client where your responsibility ends in the production process.
Send your Delivery Memo as a document inside the folder holding the digital files. They have to open the folder to open the files, giving you proof the memo was received.
Everyone wants to get paid, and the invoice is the classic means of presenting your request for payment for services rendered.
Invoices usually end up in accounts-receivable departments of companies, and, therefore, are not in files pertaining to assignments. This is another reason why the invoice is not the best place to present your terms and conditions, and licensing of rights for the first time. There is no point in having them reside only in the accounting department’s files. You need these terms in the project work file in the office of the assigning party.
Still, you should restate any stipulations on your estimate or confirmation on the invoice. This emphasizes the details and reinforces your position.