Let’s cut to the chase on the question of whether you should sign your contract BEFORE sending to a client for their signature?
Legally it does not matter who signs the contract first as long as both parties agree to it.
Practically speaking, it might be better to sign second.
One reason for why it is argued that you should always sign second is that you will be bound by any amendments made after you sign.
This is a troubling argument, so let’s unpack it. If your concern is that amendments might be made – then know that if you signed first you would still need to countersign those changes for those to be valid amendments or deletions.
If you didn’t sign first then you may be in an easier position to negotiate practically. Whether you use electronic contracts or physical copies, it is important not to leave any blanks – so that if amendments are made it is easier to catch these when you review the contract.
Another argument is that you should sign it first so you don’t have to send it to the other party after you have countersigned. If you are signing electronically, many of the e-signature options automates the process of sending a copy with signatures of all parties to all concerned, so this is less about reducing the number of steps involved. Read this article for more on the validity of web check boxes and electronic contracts.
The bottom line is that there must be a meeting of the minds – you must both agree to the terms of the contract.
In practice, it is usual for the business issuing the contract not to sign it until it is accepted by the other party and signed. Once it is accepted and signed by the other party, the issuer should review the contract again to make sure no terms were changed and then sign it.
Once both parties have signed, a contractual agreement exists. If you sign not noticing that changes had been made to a contract (especially the case where the changes were made electronically and it is not clear that you need to countersign those changes), then it is likely you would be bound by the terms of the agreement you have signed.
Here are some key things to consider when preparing and signing a contract for your photography business:
- Carefully read the entire contract so that you can be sure that you understand all of your rights and responsibilities. Be aware that rights and responsibilities are included throughout the agreement. Never sign a contract you don’t fully understand. Ask an attorney for help to review the contract.
- Make sure that you correctly identify the parties to the contract, including contact information. Use the complete name of the business to avoid confusion and identify corporate officers where relevant. If more than one person will be involved (like a bride and groom), make sure the contract clearly identifies the marital status of the individuals involved.
- Before signing review the business terms of the contract (effective date, event date, price, number of photographers, number of images, duration, etc.) to ensure that it accurately reflects the agreement of the parties. This is also where you will check to make sure that if any terms were amended by the other party, that you make sure you countersign if you agree, or go back and speak with them again if you do not. Check dates and deadlines and make sure you are available for the photoshoot or event before you sign the contract. It is a great habit to have a calendar of dates, deadlines, and a list of upcoming photoshoots along with a list of anything required to be completed by you or the other party to fulfil your part of the contract.
- When another document is referenced in your contract, and described as being “incorporated” into the contract, make sure you read that documents carefully before signing the contract. Don’t assume you know what it is just from the title, or the information it contains.
- Make sure you understand what could cause you to be in default in relation to the agreement, and be clear on what constitutes a default on the part of the other party (in this case, likely a client). Determine the worst that can happen to you if you default. Ask your attorney to explore ways to limit your liability. Brainstorm with your attorney the types and kinds of remedies you need in the event of default by the other party.
- Review causes for termination. This is the place your attorney is likely to include clauses relating to termination on the basis of failure to pay a deposit or installment, or full payment prior to the photoshoot or event. Be sure to also make sure that you have thought through other possible reasons for termination, like uncooperative bridal parties, illness on your part or that of your immediate family – framing your responsibilities in this case – or the process for terminating the agreement and which, if any, monies would be returned.
- Determine how you want to deal with resolution of disputes. An arbitration or mediation requirement could ultimately save you lots of time and money – especially if there is a free or low cost civil mediation program in your city or community. However, there are times when you may need to go to court to resolve the dispute. Speak with your attorney about making sure that you have flexibility about which avenue to pursue.
Talk to your attorney about whether it would be helpful to include “counterparts language” so that the contract can be signed in parallel rather than one after the other. This can make things quicker – and can be especially useful if you are still using a fax machine. “counterparts language” essentially allows for copies made by any “reliable means” to be considered as original. This is less of an issue with electronically signed contracts as the technology being used allows for almost immediate transmission and as such decreases the amount of time it takes to sign and return as compared with mailing a physical copy.
Finally, on the question of whether you should sign your contract BEFORE sending to a client for their signature?
Sometimes what is legally necessary and what is practically advisable are different, as in the case of who should sign a contract first. As in all things contract related, if you have any questions or any concerns or doubts, speak to an attorney well versed in both contract law and the photography industry.
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