Terms of Business (wedding and other photography)
by SEQ Legal Terms of Business
Please read these Terms of Business carefully, as they set out our and your legal rights and obligations in relation to our services.
1. Definitions and interpretation
1.1 In these Terms of Business:
“Album” means a wedding album including a selection of the Photographs and meeting the requirements specified in the Statement of Work;
“Cancellation Charges” means the amounts of the Charges payable by the Customer to the Photographer in the event of termination of the Engagement under Clause [12.3], such amount being specified in the Statement of Work; “Charges” means the charges specified in the Statement of Work payable by the Customer to the Photographer;
“Customer” means the individual (or individuals) identified as such in the Statement of Work;
“Effective Date” means the date when the Statement of Work is signed by or on behalf of the Photographer, following signature of the Statement of Work by the Customer;
“Engagement” means a contract between the Photographer and the Customer for the supply of Services and the delivery of the Photographs and the Album incorporating these Terms of Business and the Statement of Work, and any amendments to such a contract
from time to time;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, moral rights, database rights, business names, trade names, trade marks, service marks, passing off rights and rights in designs);
“Locations” means those sites and locations identified in the Statement of Work where the Photographs will be taken;
“Permission” means a permission given by a third party for the performance of the Services and/or the inclusion of a location, object, person, work or other thing in the Photographs;
“Photographer” means Wayne Crossley Photography, a company incorporated in England and Wales (registration number [number]) having its registered office at 718 Burnley Road, Todmorden, Lancs OL148LF;
“Photographs” means the photographic images specified in the Statement of Work, which may include prints, negatives, transparencies and/or digital images;
“Services” means the photographic services supplied or to be supplied by the Photographer to the Customer under the Engagement, details of which are set out in the Statement of Work (or, to the extent that no such details are set out in the Statement of Work,
details of which will be agreed between the parties acting reasonably from time to time);
“Statement of Work” means the statement of work document issued by the Photographer to the Customer and signed by or on behalf of the parties detailing the scope of the Services and other matters relating to the Engagement; “Term” means the term of the Engagement; and
“Wedding” means the wedding that is the subject of the Engagement.
1.2 In these Terms of Business, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of these Terms of Business.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of these Terms of Business.
Engagement
The Engagement will come into force on the Effective Date and will continue in force until:
(a) the Services have been completed; and
(b) all the Charges have been paid by the Customer to the Photographer in cleared funds,
upon which it will terminate automatically, unless previously terminated in accordance with Clause [12].
Services
3.1 The Photographer:
(a) will supply the Services to the Customer (including taking the Photographs at the Locations);
(b) deliver the Photographs and the Album to the Customer,
in accordance with the terms of the Engagement.
3.2 [Any stated or agreed time for delivery of the Photographs and Album will not be of the essence of the parties' agreement / The timetable for the delivery of the Photographs and Album is indicative only, and the Photographer shall not be in breach of the terms of the Engagement solely on the ground that that timetable has not been met].
[3.3 The Photographer will obtain [in writing] Permissions specified (or of the type(s) specified) in the Statement of Work and reasonably required for the performance of the Services[, and will provide to the Customer copies of those Permissions promptly following receipt of a request to do so]. [All such written Permissions will be in a form agreed by the parties acting reasonably, having regard to the provisions of Clause [5] where relevant.]]
3.4 The Photographer [may / must not] sub-contract the provision of the Services [without the prior written consent of the Customer][; providing that if the Photographer does sub-contract the provision of the Services, the Photographer will remain liable to the Customer for the performance of the sub-contracted obligations].
3.5 The Photographer may suspend the provision of the Services and/or withhold the Photographs and/or Album if the Customer fails to pay by the due date any Charges.
4. Customer obligations
4.1 The Customer will provide to, or procure for, the Photographer any:
(a) co-operation, support and advice;
(b) information and documentation; and
(c) licences, consents or permits,
reasonably necessary to enable the Photographer to discharge its obligations under the Engagement.
4.2 The Customer must provide feedback on:
(a) preparatory composition or design work; and
(b) the selection of Photographs for the Album,
promptly and in any event in accordance with any timetable agreed between the parties. The Customer acknowledges that a failure to comply with this Clause may result in delays in the provision of the Services and/or the delivery of the Photographs and/or the Album, and agrees that the Photographer shall not be in breach of the Engagement or otherwise liable in respect of any delays resulting from a breach of this Clause.
[4.3 Subject to Clause [3.3], the Customer will be responsible for obtaining [in writing] any Permissions reasonably required for the performance of the Services[, and will provide to the Photographer copies of those Permissions promptly following receipt of a request to do so]. [All such written Permissions will be in a form agreed by the parties acting reasonably, having regard to the provisions of Clause [5] where relevant.]]
[4.4 The Customer hereby indemnifies and undertakes to keep indemnified the Photographer against any losses, damages, claims, obligations, liabilities, costs and expenses (including legal fees and costs and expenses incurred in investigating, preparing, defending or prosecuting any litigation, claim, proceeding or demand) arising out of or in connection with any breach by the Customer of Clause [4.3].]
5. [No grant of rights / Licence of rights / Assignment of rights]
[[Save as expressly provided elsewhere in these Terms of Business or the Statement of Work,] the Customer acquires no licence or assignment of any Intellectual Property Rights or other rights in the Photographs.] OR
[5.1 Upon the later of:
(a) the completion of the Services under the Engagement; and
(b) the payment by the Customer to the Photographer in full in cleared funds of all amounts due in respect of the Engagement,
the Photographer will (and hereby does) grant to the Customer a [worldwide, [non-]exclusive] licence to [specify scope of licence], subject to Clause [5.2].
5.2 The licence granted in Clause [5.1] does not include the rights to [specify limitations on licence].] OR
[5.1 Upon the later of:
(a) the completion of the Services under the Engagement; and
(b) the payment by the Customer to the Photographer in full in cleared funds of all amounts due in respect of the Engagement,
the Photographer will (and hereby does) assign to the Customer [with full title guarantee] all of [its / the] existing and future Intellectual Property Rights (excluding moral rights) in the Photographs.
5.2 The assignment in Clause [5.1]:
(a) is for the full term of those Intellectual Property Rights, including all extensions, renewals, reversions, and revivals; and
(b) includes the right to bring proceedings for any infringement of those Intellectual Property Rights pre-dating their assignment.]
6. Moral rights
[6.1 The Photographer:
[(a) waives [the Photographer's rights of paternity in the Photographs / the Photographer's rights of integrity in the Photographs / all the Photographer's moral rights in the Photographs] to the maximum extent permitted by applicable law; and]
[(b) warrants that all other [rights of paternity / rights of integrity / moral rights] in the Photographs have been waived to the maximum extent permitted by applicable law].
OR
6.1 [The Photographer / The personnel of the Photographer] assert their moral rights to be identified as the authors of the Photographs in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.]
[6.2 [Subject to Clause [6.3],] the Photographer acknowledges that the Photographs have been commissioned by the Customer for private or domestic purposes and that, under Section 85 of the Copyright, Designs and Patents Act 1988, the Customer have the rights not to have: (i) copies of the Photographs shown in public, (ii) the Photographs exhibited or shown in public, and (iii) the Photographs communicated to the public.]
[6.3 The Customer agrees that, notwithstanding Section 85 of the Copyright, Designs and Patents Act 1988, the Photographer may [specify exception(s) to Clause 6.2].]
7. Intellectual Property Rights
7.1 The Photographer warrants that the Photographs will not infringe the [UK] Intellectual Property Rights of any third party.
[7.2 Subject to the Customer's compliance with Clause [7.3], the Photographer hereby indemnifies and undertakes to keep indemnified the Customer against any losses, damages, claims, obligations, liabilities, costs and expenses (including legal fees and costs and expenses incurred in investigating, preparing, defending or prosecuting any litigation, claim, proceeding or demand) arising out of or in connection with any breach by the Photographer of the warranty in Clause [7.1].]
[7.3 The Customer will:
(a) upon becoming aware of an actual or potential infringement, notify the Photographer;
(b) provide to the Photographer all reasonable assistance in relation to the infringement;
(c) allow the Photographer the exclusive conduct of all disputes, proceedings, negotiations and settlements related to the infringement; and
(d) not admit liability in connection with the infringement or settle any claim without the prior written consent of the Photographer.]
8. Charges and payment
8.1 The Photographer may issue invoices for the Charges to the Customer on or after the dates set out in the Statement of Work.
8.2 The Customer will pay the Charges to the Photographer within [14] days of the date of issue of an invoice issued in accordance with Clause [8.1].
8.3 Charges must be paid by [debit or credit card, direct debit, bank transfer or by cheque] (using such payment details as are notified by the Photographer to the Customer from time to time).
8.4 If the Customer does not pay any amount properly due to the Photographer in connection with the Engagement, the Photographer may charge the Customer interest on the overdue amount at the rate of [8]% per year above the base rate of [HSBC Bank Plc] from time to time (which interest will accrue daily until the date of actual payment and be compounded quarterly).
[8.5 All amounts stated in the Statement of Work or in relation to the Engagement are stated inclusive of all value-added taxes.]
9. Warranties
9.1 The Customer warrants to the Photographer that the Customer has the legal right and authority to enter into and perform the Customer's obligations under the Engagement.
9.2 The Photographer warrants to the Customer that:
(a) it has the legal right and authority to enter into and perform its obligations required by the Engagement; and
(b) the Services will be performed with reasonable care and skill.
9.3 All of the parties' warranties and representations in respect of the subject matter of the Engagement are expressly set out in these Terms of Business and in the Statement of Work. To the maximum extent permitted by applicable law and subject to Clause [10.1], no other warranties or representations concerning the subject matter of the Engagement will be implied into these Terms of Business, the Statement of Work, the Engagement or any other contract.
10. Limitations and exclusions of liability
10.1 Nothing in the Engagement will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit any liability of a party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party that may not be excluded under applicable law,
and any statutory rights that a party has as a consumer, that cannot be limited or excluded, will not be limited or excluded by the Engagement.
10.2 The limitations and exclusions of liability set out in this Clause [10] [and elsewhere in the Engagement]:
(a) are subject to Clause [10.1];
(b) govern all liabilities arising under the Engagement or in relation to the subject matter of the Engagement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and
[(c) will [not limit or exclude / limit and exclude] the liability of the parties under the express indemnities set out the Engagement.]
10.3 The Photographer will not be liable to the Customer for any losses arising out of a Force Majeure Event.
10.4 The Photographer will not be liable to the Customer in respect of any business losses, such as loss of or damage to profits, income, revenue, use, production, anticipated savings, business, contracts, commercial opportunities or goodwill.
11. Distance contracts and consumer rights
11.1 This Clause [11] applies if and only if the Customer agrees to the Engagement using any means of distance communication (including via email or post).
11.2 Where this Clause [11] applies, the Customer may cancel the Engagement at any time within 7 working days, beginning on the day after the contract for the Engagement came into force, providing that the Photographer has not begun the provision of the Services during that period.
11.3 If the Customer cancel the Engagement in accordance with this provision, the Customer will receive a full refund of the Charges paid in respect of the Engagement (if any).
11.4 The Photographer will usually refund any money received from the Customer using the same method used by the Customer to pay the Charges. The Photographer will process the refund due to the Customer as soon as possible and, in any case, within 30 days of the day the Photographer received the Customer's valid notice of cancellation. The notice of cancellation should be sent to the Photographer at the address set out in the Statement of Work.
12. Termination
12.1 Either party may terminate the Engagement immediately by giving written notice to the other party if the other party commits any material breach of any provision of these Terms of Business or the relevant Statement of Work, and:
(a) the breach is not remediable; or
(b) the breach is remediable, but the other party fails to remedy the breach within [14] days of receipt of a written notice requiring it to do so.
12.2 The Photographer may terminate the Engagement immediately by giving written notice to the Customer if the Customer fails to pay in full and on time any amount due to the Photographer in respect of the Engagement.
12.3 If:
(a) the Wedding is cancelled (for whatever reason); and
(b) the Customer notifies the Photographer of such cancellation as soon as practicable and in any event at least 21 days before the expected date of the Wedding,
then the Engagement will be automatically terminated upon the receipt by the Photographer of that notice, and Clause [13.2] shall apply.
[12.4 TheCustomermayterminatetheEngagementimmediatelybywrittennoticesenttotheaddressofthePhotographerspecifiedintheStatementofWorkintheeventthatthePhotographerdies,orasaresultofillnessorincapacitybecomesincapableofperformingthe Services, or is or becomes unable to pay the his or her debts as they fall due, or is the subject of a bankruptcy petition or order.
OR
12.4 The Customer may terminate the Engagement immediately by giving written notice to the Photographer if:
(a) the Photographer: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the Photographer; or
(c) an order is made for the winding up of the Photographer, or the Photographer passes a resolution for its winding up.]
13. Effects of termination
13.1 Upon termination of the Engagement all the provisions of these Terms of Business and the Statement of Work will cease to have effect, save that the following provisions of these Terms of Business will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 4.4, [5], 7.2, 7.3, 8.4, 10, 13, 14 and 15].
13.2 If the Engagement terminates under Clause [12.3], then the Customer must pay to the Photographer within [14] days following the date of termination an amount equal to the Cancellation Charges less any Charges previously paid by the Customer and received by the Photographer in respect of the Engagement.
13.3 If the Engagement is terminated by the Customer under Clause [12.1] or [12.4], then the Customer shall be:
(a) entitled to a full refund of Charges previously paid to the Photographer; and
(b) released from any obligation to pay any further Charges to the Photographer,
providing that [the licence in Clause [5] shall also terminate / the rights assigned to the Customer in Clause [5] shall revert to the Photographer].
13.4 Save as expressly provided in Clauses [11, 13.2 and 13.3], the Customer shall not:
(a) be entitled to any refund of Charges; or
(b) be released from any obligation to pay Charges (whether or not invoiced),
upon the termination of the Engagement.
14. General
14.1 No breach of any term of the Engagement will be waived except with the express written consent of the party not in breach.
14.2 If a term of the Engagement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other terms of the Engagement will continue in effect. If any unlawful and/or unenforceable term would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the term will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant term will be deemed to be deleted).
14.3 Neither these Terms of Business nor any Statement of Work may be varied except by a written document signed by or on behalf of the Photographer and at least one of the Customer.
14.4 Save as expressly provided elsewhere in these Terms of Business, no party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in any rights or obligations under the Engagement.
14.5 Each Engagement is entered into for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement relating to the Engagement are not subject to the consent of any third party.
14.6 Subject to Clause [10.1], these Terms of Business and the relevant Statement of Work will constitute the entire agreement between the parties in relation to the Engagement, and supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
14.7 These Terms of Business and each Statement of Work will be governed by and construed in accordance with the laws of [England and Wales]; and the courts of [England] will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Engagement.
15. The Customer
15.1 This provisions of this Clause [15] shall apply if and only if the Customer under the Engagement is two individuals (referred to in this Clause as the "Customers").
15.2 Each Customer will be jointly and severally:
(a) responsible with the other Customer for the performance; and
(b) liable with the other Customer for the non-performance and breach,
of all the Customer obligations, undertakings, warranties and indemnities set out in the Engagement.
15.3 Where the Engagement stipulates that the Photographer must give notice to the Customer in respect of some matter, then the Photographer may give such notice to the address for Customer notices specified in the Statement of Work.
15.4 Where the Engagement stipulates that the Photographer must delivery something to the Customer, then the Photographer may deliver that thing to the address for Customer notices specified in the Statement of Work.
15.5 Where the Engagement stipulates that the Customer must give some approval or consent in respect of some matter, then the approval or consent of any one of the Customers will constitute the required approval or consent.
15.6 Where the Engagement provides that the Customer may by notice terminate this Agreement, then either one of the Customers may do so.
15.7 Where the Engagement provides for a licence or assignment of Intellectual Property Rights to the Customer, that licence or assignment shall be legally held by the Customers in such manner as the Customers may agree between themselves from time to time.
Statement of Work
Customer[s]
[Full name] of [address] [and [full name] of [address]]. Services
The Services consist of:
(a) [the taking of at least [x] Photographs of the Wedding [and [specify additional events]] to be taken on [date(s)] at the Locations [by [person]];
(b) the post-processing of the Photographs;
(b) the production of the Album; and
(c) the delivery of the Photographs and the Album [in the formats specified below] to the Customer.
Locations
The Locations are [insert details of locations and sites where the Photographs will be taken].
[Permissions to be obtained by Photographer
[Insert details, if any]]
Photographs
[Insert details including format of Photographs. E.g. The Photographs will consist of the photographs referred to above, in each case in both print format ([specify]) and in digital format ([specify]). Also, include expected date of delivery of the Photograph] Album
[Insert details including format of Album. E.g. The Album will be of [number] pages and [specify design] and shall incorporate approximately [number] Photographs. Also, include expected date of delivery of the Album]
Charges and Cancellation Charges
[Insert details - amounts and, in respect of the Charges, invoicing dates]
Customer notices
[Addressee and postal address]
Photographer notices
[Wayne Crossley, Wayne Crossley Photography, 718 Burnley Road, Todmorden, Lancs OL148LF]
The parties have indicated their agreement to the Engagement on the terms of this Statement of Work and the Photographer's Terms of Business by signing below.
This Terms of Business (photography) template is designed for use by a photographer or business providing wedding photography services as its standard terms document. It is suitable for use where a service is being provided to consumers (not businesses). It contains three alternative intellectual property provisions: you can choose from no licence, a limited licence or a full assignment of the intellectual property rights in photographs. It takes account of the specific moral rights affecting photographs taken for domestic purposes. Generally, it has been drafted to protect the interests of the photographer.
Where the Photographer is a sole trader or partnership rather than a company, one of the following definitions may be used:
sole trader: “Wayne Crossley trading as Wayne Crossley Photography, which has its principal place of business at 718 Burnley Road, Todmorden, Lancs OL14 8LF;”
partnership: “[partnership name], a partnership established under [English] law having its principal place of business at [address];”
Where the ejusdem generis rule applies, the meaning of a general provision may be restricted by the listing of particular examples. This is usually undesirable.
The first option in Clause 3.2 specifies that a failure to meet the timetable will not be a material breach of contract. The second option specifies that a failure to meet the timetable will not in itself necessarily breach the contract at all.
See also Clause 4.3. Ensure that the two clause are consistent once amended.
NB Section 90(3) of the Copyright, Designs and Patents Act 1988 says that “an assignment of copyright is not effective unless it is in writing signed by or on behalf of the assignor”.
If the Photographer does not or will not own (subject to an assignment) all of the Intellectual Property Rights in the Photographs etc, then the words “with full title guarantee” should be deleted, and the word “its” retained. If the Photographer does or will own (again, subject to this assignment) all the Intellectual Property Rights in the Photographs etc, then the word “its” should be deleted and the words “with full title guarantee” retained.
The key moral rights in this context are the rights of paternity (i.e. to be identified as the author of a copyright work) and integrity (i.e. to object to the derogatory treatment of the copyright work). These rights accrue to the creator of the work in addition to the copyright (although, as a matter of English law, the paternity right needs to be “asserted”).
This acknowledgement by the Photographer does not in itself affect the legal position under Section 85 of the Copyright, Designs and Patents Act 1988. If all the rights in the Photographs are assigned (rather than licensed) it should be deleted as entirely superfluous.
Clauses 7.2 and 7.3 will be unnecessary in most wedding photography contracts. Consider deleting.
This warranty is implied, by Section 13 of the Supply of Goods and Services Act 1982, into contracts for the supply of services where the supplier is acting in the course of a business.
Contractual limitations and exclusions of liability are regulated and controlled by law, and the courts often rule that particular limitations and exclusions of liability in contracts are unenforceable. The courts are particularly likely to intervene where a party is seeking to rely on a limitation or exclusion of liability in a consumer contract or in its standard T&Cs. You should take legal advice if you may wish to rely upon a limitation or exclusion of liability, or if you want to exclude or limit - or purport to exclude or limit - any liability to a consumer. Please note that the guidance notes to this Section provide only an incomplete and basic overview of this complex subject.
Exclusions and limitations of liability in UK B2B and B2C contracts are regulated by The Unfair Contract Terms Act 1977 (“UCTA”). Relevant legislation in the case of B2C contracts also includes The Consumer Protection Act 1987 and The Unfair Terms in Consumer Contracts Regulations 1999.
The courts may be more likely to rule that provisions excluding liability – as opposed to those merely limiting liability - are unenforceable.
If there is a risk that any particular limitation or exclusion of liability will be found to be unenforceable by the courts (for example, because it may be unreasonable under UCTA – see below), that provision should be drafted as an independent term, and be separately numbered from the other provisions.
It may improve the chances of a limitation or exclusion of liability being found to be enforceable if the party seeking to rely upon it specifically drew it to the attention of the other party before the contract was entered into.
Do not delete this Clause (except upon legal advice). Without this Clause, the specific limitations and exclusions of liability will not usually be enforceable.
The Distance Selling Regulations require that suppliers must, in good time before the conclusion of a distance contract with a consumer, provide information about the right of cancellation available under the Regulations. This Clause can be deleted if all customers contract in the course of a business (i.e. are not consumers) or if there will be no contracting at a distance.
The first Clause 12.4 is designed for use where the Photographer is a sole trader, the second where the Photographer is a company.
This provision is designed to exclude any rights a third party may have under the Contracts (Rights of Third Parties) Act 1999.
This template has been drafted to work in the English law context. If you plan to change the governing law, you should have the document reviewed by someone with expertise in the law of the relevant jurisdiction.
As a practical matter, it makes sense for the courts with expertise in the relevant law to have the right to adjudicate disputes. Where one of the parties is outside England (or at least the UK), you may want to grant the courts of their home jurisdiction the right to adjudicate disputes, as this could ease enforcement in some circumstances.
Signed by ................................... on ...................................
PRINT NAME
.......................................
[the Photographer / for and on behalf of the Photographer]
Signed by ................................... on ...................................
PRINT NAME
....................................... the Customer
[Signed by ................................... on ...................................
PRINT NAME
....................................... also, the Customer]