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Clik here to view.As you go through your photography business you will find that automation and digital efficiency is the best and most cost-effective means to helping your business stay afloat, and giving you time to get back to photography.  This article is to provide some insight on digital photography contracts.  

Whether you’ve been considering using them, or just need some guidance, you’ve come to the right place.  TheLawTog is a legal resource for photographers – including photography contract templates, advice and more!

Is it legal?

In the United States there is the “Electronic Signatures in Global and National Commerce Act” (also known as the E-Sign Act)  (15 U.S.C 7001).  which states …

“IN GENERAL.—Notwithstanding any statute, regulation, or other rule of law (other than this title and title II), with respect to any transaction in or affecting interstate or foreign commerce— (1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form”

The general intent of the ESIGN Act is stipulated in the very first section(101.a), that a contract or signature “may not be denied legal effect, validity, or enforceability solely because it is in electronic form”.  This law wasn’t the first to bring about legitimacy to digitally signing of documents.    Note that it says “in general”, meaning there are always exceptions and may not apply to every case. You need to consult a lawyer to determine whether e-signatures are valid in your particular case or not. As every case is different.

By the time the E-Sign was put into place, forty states had already enacted laws that allowed for the use of electronic signatures.  E-sign worked to to give uniformity to electronic signatures across the United States.  The federal E-sign law doesn’t override the preexisting state laws, but if a state had adopted a law that was significantly different han the federal law, then federal law would trump it.  This idea works to ensure that electronic contracts and signatures are valid across the states.

There is also the UETA, or Uniform Electronic Transactions Act 1999 which states …

“This Act simply assures that the signature may be accomplished through electronic means. No specific technology need be used in order to create a valid signature. One’s voice on an answering machine may suffice if the requisite intention is present. Similarly, including one’s name as part of an electronic mail communication also may suffice, as may the firm name on a facsimile.”

It also states that whether an e-signature is legally binding or not depends on the intent and on the circumstance. Quoted form the linked document…

“The precise effect of an electronic signature will be determined based on the surrounding circumstances under Section 9(b).”

Courts have stated that an enforceable electronic signature can include documents sent via email, signed using a digital pen pad device at a store, acceptance of the End-User License Agreement, or by signing electronically online. For additional information visit FTC.gov

Legality to Digital Signatures

Congress enacted E-Sign with three goals in mind: First, E-Sign allows Americans to use and sign legally binding contracts online. Second, E-Sign increases business efficiency by speeding up the contracting process.

Finally, E-Sign strengthens consumer protection, as it relates to eCommerce, by mandating disclosures and retention of accurate records, and further, by creating specific exceptions where signatures must be on paper for public policy reasons. (Duke University)

What if it is faxed or an image?

The biggest issue to not whether a contract is faxed, digital or a duplication (including picture), but whether the electronic record is acceptable as the best evidence of the contract and if the electronic signature is acceptable as a formal requirement of accepting a contract.

While these methods may be acceptable, it is best for PDF or printed versions to be used.

Criteria for admissibility/validity

-Must be able to provide intent of the signatory and the security of the signed document (Digital contract may be not be allowed into court due to lack of security or authentication.

-Any alteration may hinder the admissibility of the contract into court

-Contract depends on validity, admissibility AND the contents of the agreement itself.  A judge will evaluate whether terms of the agreement were clear and consistent, whether the parties had legal capacity (ability to sign), whether consideration (an exchange of value between the parties) existed, whether a party was under duress or undue influence, and whether a party signed by mistake or without knowledge to the meaning of the contract.

Contracts Not Enforceable by Electronic Signature

Don’t be mistaken to think that all contracts are enforceable because they are legally signed.  The following are a superficial list that are invalid and unenforceable if signed electronically:

• wills, codicils, and testamentary trusts
• documents relating to adoption, divorce, and other family law matters
• court orders, notices, and other court documents such as pleadings or motions
• notices of cancellation or termination of utility services
• notices of default, repossession, foreclosure, or eviction
• notices of cancellation or termination of health or life insurance benefits
• product recall notices affecting health or safety, and
• documents required by law to accompany the transportation of hazardous materials.

How to use digital contracts

It depends on the site/program you use to embed or email the contract!  Some have a physical spot that the client can sign with their mouse, others you can simply create a signature line that is a binding signature.

Digital Contract Signing Tools

Choose a system that fits into your workflow to efficiently have your clients sign contracts and keep this information on file.

• Agree.com (Free & Paid)
• Gravity Forms (Great also for client questionnaires and forms) 
  • Gravity Forms Add on – Gravity Whiz
• DocuSign Ink App for iPad
• MachForm – Embeds into site
• Hello Sign – Online signing
• DocuSign- Online signing

For more resources go here

Tips to Using Digital Contracts:

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