Service Agreements: Five Things to Think About
by Dani Brito, Touchstone Law Group Kelowna, BC
The importance of having a written service agreement cannot be stressed enough. A properly drafted service agreement will provide all parties with clarity with respect to their respective rights and obligations and can avoid (or at least mitigate) unnecessary costs and stress if things go wrong. In this article I will discuss five things that should be contemplated in each service agreement.
A service agreement should clearly set out who the contracting parties are. If you are providing photography services as a sole proprietor, the contract should be in your personal name. Alternatively, if you are providing photography services under an incorporated company, the full legal name of the company should be the contracting party to ensure that you benefit from the company’s limited liability. In this case, the authorized signatory of the corporation would sign the agreement on the corporation’s behalf.
If you are providing photography services to an individual, their name should be listed as the contracting party. If you are being retained by a company, the company’s name should be included as the contracting party and an authorized agent of the company should be signing on the company’s behalf. If your client consists of two or more persons, each person’s name should be included and each party should sign the agreement. In addition, the best practice when contracting with two or more persons is to explicitly state that the clients will be jointly and severally liable for their obligations.
If you have questions about the proper way to indicate the name of your business or your client on your service contract, it is prudent to contact a lawyer for clarification before the contract is signed.
A service agreement should set out in detail the services that the photographer will be providing. To minimize the risk of miscommunications or disputes, it is prudent to set out the services to be provided in as much detail as possible. If there are any discrepancies between the expectations of the photographer and the client, it is best to negotiate before the services are provided, rather than after.
The best practice is to review each statement independently and ensure that “who”, “what”, “where”, “when”, and “how” is as clear as possible.
A service agreement should not only set out the price for the services provided by the photographer, but also when, where and how payment is to be made by the client. If the client will be paying a deposit, it is prudent to expressly state whether or not the deposit is refundable. Note, a deposit may be refundable for a certain period of time and non-refundable following a specific date or triggering event. If you will be charging interest on late payments, this should be expressly stated in your contract. If the client will be paying for transportation costs, photos or services on an à la carte basis, etc., it is recommended to set out the costs associated with any such additional services or products in the agreement.
To avoid any uncertainty, a service agreement should expressly state whether or not taxes are included in the prices detailed in the agreement and the currency in which the prices are listed.
A service agreement should expressly state who will own the photographs (i.e. will the owner of the photos be the photographer or the client?). The Copyright Act of Canada states that the “author” of an “artistic work” (including photographs) is the owner of the copyright in the photograph. This means that the default presumption is that the photographer taking the photos will be the owner of the photos. However, it is prudent to state this expressly in your service agreement.
Assuming that you will be the owner of the photos, the best practice is to set out the rights of your client with respect to the photographs in your service agreement in as much detail as possible. Specifically, are they permitted to print them, post them on social media, use them for commercial purposes, etc.? Also, will they be required to tag you or provide you with credit? If so, this should be expressly stated.
Assuming that the client will be the owner of the photos, the best practice is to expressly transfer the copyright to your client and waive your moral rights in the photographs.
A service agreement should specify who has the right to terminate the agreement early, if any, and the process for doing so. Things to consider include:
- who is permitted to terminate the agreement;
- when a party can terminate the agreement (e.g. Does the other party have to be in default or can it be at any time?);
- the amount of notice required; and
- the consequences of termination (e.g. return of deposit).
The best practice is to require notice in writing.
With respect to the consequences of termination, it is important to consider whether you want any of the provisions of your agreement to “survive” (i.e. continue to be enforceable) following the termination of the agreement. This may be relevant in the case of privacy provisions, confidentiality provisions and photo credit provisions.
If you have any questions regarding your existing service agreement or if you wish to have a service agreement prepared, please do not hesitate to reach out.
Danielle (Dani) Brito
(250)448-2637 or email@example.com.
This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. If you have questions about your service contract or any other corporate or commercial matter, please contact Danielle
Author: Danielle (Dani) Brito