Replacement Pro due to illness - Contract Clause

I am currently about to close a sale for a wedding in which the

bride took the liberty of rewriting some of the �terms and

conditions� of my standard sales agreement. I was very taken aback

by this and asked if a lawyer reviewed it. She said �I�m a lawyer

wanna be�

 

While some of her input improved my contract she has requested that

if I have to find a replacement in the event of personal illness

that I pay any increase in cost for the replacement�She added the

last sentence below:

 

�The Photographer may substitute another photographer to take the

photographs in the event of Photographer�s illness. In the event of

such substitution, Photographer warrants that the photographer

taking the photographs shall be a competent, and insured

professional. The original terms of this agreement will remain in

effect. Client will pay initial contracted amount directly to the

substitute photographer. Any fees or charges above and beyond the

initial contracted amount are to be paid by Photographer.�

 

My concern is that I�m REALLY inexpensive and it would be nearly

impossible for me to find a replacement at what I�m charging�so in

the unlikely event that I cannot perform due to illness I would have

to go out of pocket for a replacement. I estimate this to be around

$1,000. (I�m charging $1150 for 8 hrs event, 275 prints, Slide

Show, Negs on CD, four hrs digital editing, rehearsal attendance.)

This is CHEAP for the Washington DC/Virginia�ask Mary Ball. Most

packages like this start at $2K in this expensive town.

 

While I�m young (39) and completely healthy this modification of

terms does not sit well with me.

 

I have already denied her request to remove a clause that limits my

liability to the retail value of the package. I do not want to come

across as inflexible, and lose the sale.

 

What would you do?

I simply would not, under any conditions, let any client tinker with my contract agreement. This is your service and your terms - period. It isn't worth the risk of opening up all these possibilities.

I would either:

a) charge her more to cover this clause

b) request her to drop the clause

c) charge more in the first place so you can cover things like this (the $2K is not looking to much in this instance!)

d) Find another photographer that would be happy to shot in this way that you are happy with

 

In this instance I would be happy to lose the sale. If she really wants you as a photographer she will be flexible

What Jammey said above, plus my opinion that the added clause is absolutely unacceptable in particular. Even if you allow it, you need to modify the clause to include some sort of numerical limit to such "above and beyond" charges, otherwise you're just handing her your zero-spending-limit credit card to do what she wants with it.

<p>Keeping in mind the usual disclaimers (this is photo.net, I am not an attorney, etc. etc. etc.) I don't think it's such a great idea to substitute another person in case of your illness. It's much simpler to refer such a situation to your limit of liability (a refund of the fees paid). If you substitute this other person, you're opening a whole minefield of possible problems, the least of which is your reputation that is riding on this substitute, up to the possibility that you could be involved in a liability issue should the bride not be satisfied with the work and/or service provided by your substitute. You may not have any direct control over the substitute's work or service, but the fact that you chose the substitute could make you liable in case of any problems.

<p>That said, if you really need the money, then it's your call. Lawyer or lawyer-wannabe, my reaction has to do with the proverbial 10-foot pole. Sounds to me like she's a hatchling looking for her first blood meal (no offense to you lawyers out there). Oh yeah, and please do contact a real lawyer in your area who specializes in business/contract law.

<p>(KA-CHING) Two cents, please.

You may decline her deposit, explaining your reasons.

 

 

 

Some folks expect the moon for the price of a moon pie....you could confuse the young lady and request her full payment -- in the event of nuclear fallout or a hurricane in the general area -- as alterations to her 'simple' adjustment to your contract. Then see what happens to her blood pressure!

Ridiculous. This client must have done some shopping and knows you are very reasonable

in price and not easily replaceable.

 

While highly unlikely, something can happen to prevent your shooting her wedding. Your

contract clause should promise nothing except reasonable aid in locating a replacement,

and a full and immediate refund.

 

Imagine the scenarios that could happen: A few days before the wedding you or your

significant other are hospitalized with a life threatening illness, or are in a serious accident

(God forbid), or a parent or child is. As they say... " shit happens". I refer to such events in

my contract as "acts of God" which reasonably covers, by common understanding, things

beyond the control of mankind. However, if you do not make a wedding you contracted to

shoot, it darned well better be a significant "act of God". A blizzard isn't one IMO because

I have a 4 wheel drive vehicle, and have 24 hours to get to the wedding even in a storm. I

once braved such a Michigan storm, because the wedding had NOT been canceled even

though only half the guests could make it.

 

This is one of the few disadvantages of being an independent contractor, and a

responsibility we independents must prepare for no matter how unlikely. I have a few

back-up people willing to shoot for me... but they are different than me in their approach,

and there is no guarantee they will even be available on short notice. The most you can do

is promise the immediate refund and offer up the replacements you know of without any

guarantee of their work.

 

If this is a major worry for you, contact a few shooters and ask for a "right of first refusal"

for the date. It puts them on notice that there may be a wedding to shoot, and if they book

the date, or make other plans, they have to tell you so you know they are are off the list of

possible replacements. This gives you a list to go to at a moments notice.

William -- I have two assistants that have shot some of their own weddings if you want thier names - I can give them to you in email.

Check out their work and if you feel comfortable - if something should happen - at least you have someone in your range. <p>I wonder why you don't raise your prices? Most people charge $2,000 and up in DC/Virginia. But there are some $1500 shooters out there. There is a huge market for less exp. photographers in Maryland. You can probably find some there. <p>I would tell the couple that what they are asking is something you simply can't "guarentee" because it is subject to availability of another professional. Certainly you should not be responsible for the difference in fee! I'd shy away from a lawyer wanna be. Sounds like trouble. I'd suggest she can expect you to help her find a replacement but you can't unconditionally guarentee it.

I would not photograph that wedding. If she's going to start that kind of manipulation now, think about what she'll do during and after the event.

 

Photographers have the right to refuse the booking.

 

IMO a wedding photography event should be enjoyable for the photographer as well as for the client.

 

Question:

 

In her contract revision, what does she mean when she says the replacement must be an "...insured professional." Are you an "insured professional?" I'm not. I have no idea what kind of insurance she's talking about. What does that mean? That never crossed my mind.

 

From all of this, I am still thinking about dropping all weddings and going back to just family portraiture.

 

All of these negative legal issues being discussed recently (much of which I raised) are beginning to cause me concern and much rethinking.

Todd - don't be discouraged ;-) It is not frequent that there are problems. I've only had about 4. In all cases it was a mom that hired me and the couple was just not into photos and were not cooperative. I learned to insist that the couple and the "Paying Party" both sign the contract and the Wedding Info sheet so Mom

can't hold me responsible for the couple's differing tastes, ignoring Mom's requsts, and time spent "posing".

Don't take the booking, if the bride is a pain in the---- now, she will be worse

later. It's easier to tell her that you are no longer available for the date and

move on.

I would do the following.

 

That is a stupid clause. Tell her that you are charging less than the market rate so that is unacceptable. What you might agree to do is find a backup ahead of time, find out what he charges, and if more than you tell her to guarantee a backup that you will have to charge her that rate.

What she has done is give you a really good idea to get more weddings.

<p>

What she wants is assurance, dependability. You should not be hiring other

photographers at any time, it should be her choice, with her money. So, you re-write it to

give her the difference to hire another photographer who would give the same technically

described products, or an amount limited to X dollars, whichever you like.

<p>

Take out the "competent, insured" part. Do not promise what the images will look like,

nor of any images of the replacement photographer. State that this is impossible to know

what the images will exactly look like in the future. ("future product" impossiblity)

<p>

This will cause you to raise your prices in the future. Good for you. You must be

competent.

<p>

Any photographer who has the courage to place such a paragraph in their contracts is to

be admired. This is a scam-busting paragraph that will release many weddings to the

proper, responsible photographers in the community. It's like Bill Gates charging

spammers e-mail postage. It will eliminate a problem.

<p>

If you fine tune such a paragraph, you will be one step above your competitors at any

price. You will have a selling tool that will show you to be serious about your

responsibilities. You can proudly wind-up your sales show with a statement that you will

pay them $$$ if you cannot attend. But you note that if you give them a notice 1 month or

more (or so) before the wedding, then this provision does not apply.

<p>

<p>

Don't get yourself into the business of deciding "What is competence", or "what is art?"

with her or in your contract. Just limit the cost of a new photographer to X dollars, max.

<p>

She is a smart lady. But you need to use this to take a step up.

The chances of you being ill and not attending the wedding are tiny, I am sure.

<p>

 

Providing a liquidated remedy makes for more simplification. Because I am not giving

legal advice here and nothing is intended to give legal advice here, and I am really

providing you with my amusement art, you should really take a look at your entire contract

to get a good laugh. If you find any funny parts in it, this lady may not be funny when you

make promises you cannot really keep. Take all of the big sales talk words out of your

contract.

I would take this wedding. But then, my contract is well thought over. And when people

read my contract, they smile.

If she really is a "lawyer wannabe", you should consider taking the opportunity to decline this job. It will not be worth the hassle if she engages you in litigation.

 

An off topic example: My father was the landlord to two tenants living in side by side units. It was the lawyer wannabe tenant that accused the other tenant of stealing her mail, attempted break and enter to her unit, and a marijuana grow-op. Her suspicions were unfounded but the lawyer wannabe tenant decided to sue my father for "damages". I'll spare you the details but the suit was dismissed.

 

The lawyer wannabe tenant exercised her rights but so did my father who exercised his right to terminate her tenancy. It would have happened sooner except that my father had unwittingly allowed her to change the terms of her tenancy.

 

This all took about eight months, two court appearances, and lawyers fees as well as a lot of anxiety and frustration.

 

It was a frivolous (and inept) action by someone who happened to be taking a night class in law. It was clear from the beginning that the judge had already made up his mind about this case but he did give this lawyer wannebe a fair hearing of her case as was her "right".

 

It is understandable that the lawyer wannabe bride is concerned about contingency planning but you shouldn't have to be legally responsible for the actions and costs of another photographer. Even if she agrees to omit that clause, the fact that this is how she is thinking should be a warning sign. Everybody has the right to sue. Your standard contract may be enough to win your case but do you really want to be involved in the litigation process?

William,

Run. You will have more clients, and I would not book that wedding. She wants to remove your liability clause? I don't think so. She sounds like a control freak, and I wouldn't let anyone control my business except for me. If you need revisions in your contract, seek the assistance of an lawyer skilled in that area. If you think she's being 'indifferent' now, wait until later. My contract is a simple one page document, and under no circumstances would I allow a client to revise it. Best of luck to you.

 

Duane

"Warning signs?" Wedding Photographers who take on this responsibility of a wedding

need to know that every Bride wants reliability. This is not an option, this is not a

"warning", this is the nature of this arena of work. I won't call this Bride any names like a

"control freak" as the other poster did. She is the one paying for this event, the most

important day of her life! You can either step up to the plate and take the responsibility,

or you know that you can't. And if you have doubts about your contract, you need to find

out where the leaks are.

Timber, while I agree with you that you need to give re-assurances, there are better (and less costly) ways to do that than agree to pay the bride the difference for a replacement if you become ill. Remember he is charging less than the going rate. He has to make it very clear this is the case, and that he can not give both a service guarantee, and a service discount. Service guarantee's cost money that is ALLWAYS passed on to the coustomer.

Thank you for the input! My reply to this person follows:

 

Shonna:

 

I certainly appreciate your concerns about fulfillment, and thank you for helping me improve my sales agreement. I have given a great deal of thought toward your request. I'm sure you've shopped around and are well aware that what I'm offering is a high quality service at a VERY economical rate. I would be VERY hard pressed to find a replacement at these rates.

 

I would like to meet you half way and include such a clause, but limit my out of pocket the value of your deposit ($250) I would also like to change the word 'competent' to 'experienced' as it is far less subjective. Also, I cannot guarantee insurance for a third party photographer. By doing so implies de facto indemnification on my part for another persons actions.

 

Please note that I assume the risk of cancellation, and subsequent loss of revenue in a 'community' style by asking for a very low event booking deposit, and request that you in kind approach this in a 'community' manner. While the business elements of this agreement are important, I look to this endeavor and your wedding more as a day of utter enjoyment for both of us.

 

So in closing please accept my offer

 

Casey

DO NOT ACCEPT THIS JOB!!! If you do, you will end up in a court of law. Just tell her to find another photographer, do not explain why, and do not make any recommendations. This one is not looking for a photographer, she is looking for someone she can use to become a real lawyer (in her own mind at least). THIS ONE WILL BE NOTHING BUT TROUBLE!!! Let one of your competitors suffer, but not you.

The bride is hiring the services of a wedding photographer. She does not have the right to revise the contract to her liking/benefit. If she doesn't like it, she can move on. I printed this thread earlier and passed it around to a few other wedding shooters, and the common response was: control freak. By the way, here in Atlanta, a 27 page contract wouldn't bring a 'smile' to a potential clients face. I do agree with you on one issue: let an attorney read over your contract and check it for areas that need to be refined. Not taking this job doesn't make William "run and hide." To me, it makes him intelligent. Best of luck.

The bride just wants some special photos "of her special day"; and not lame amateur excuses of the photographers impotency in delivering the shots; of her only "special wedding day". In a rural area; all this paper work contract stuff is pure BS; cow dung; big city prissy cover your ass boilerplate. In a rural area; You will be known <b>forever</b> as the dud; failure; impotent photographer; who screwed up; was late; was an amateur; the guy/gal who could not deliver. The bride may have a strong social net; and broadcast your failure to the world. The beauty salon will be on fire; the world of the impotency will be spread to those who are planning new wedding. This is negative advertising; very powerfull; dont underestimate the networking ablity of a ticked off bride; who wants your hide/scalp.<BR><BR>Maybe you should charge more. The bride wants results; not excuses. Do you have a backup available? Do you miss work much due to health reasons? What percentage of gigs will you miss due to poor health? Factor in this cost of a backup; this is the real cost of doing business. <BR><BR>We did some photo restoration of a couples wedding of 40 years ago, The photos were shot on movie film emulsion; shot by a Navy photographer; "to save money". The woman is still ticked off today; of the botched photos she received 4 decades ago. Imagine ones name badmouthed for 4 decades.

To Timber:

 

We think alike ;~} Where in So. Cal. do you reside? I�ll be in Diego in May�I�m going to be a groomsman in a wedding for a Marine Corp Major.

 

PS Go Arnold!

 

To Mary Ball:

 

I�ll be sending you an email in regards to substitutes. We are neighbors! I live in also Old Town, Alexandria. Meet for Coffee to talk biz and photo.net?

 

To Kelly:

 

I admire a country deal 'by handshake' followed by a quick spit of tobacci...I wish city folk were more like that. Unfortunately nice people like you and your neighbors are rare in my neck of the woods�it�s cut throat where I live. Mess up, and it�s like a pack of wolves on a lame rabbit. I�m fourth generation local�our capital used to be a �sleepy town� with all kinds of charm until the mid eighties. Now it�s a RAT RACE packed full of many who think their �Special.�

 

I�m a CPA combo computer geek by weekday, and a very serious, but in it for joy event shooter on the weekends. My photo efforts represent �art� for me�it keeps me sane and balanced in retrospect to my M-F nine to five geekdom gig. So this explains my low rates�I�m here for fun; and funding for an expensive pastime. Started using my first Yashicamat with handheld meter at age 10 and have been addicted ever since.

 

While there is no denying that shooting a wedding is incredibly stressful, the highlight of my week is returning home after a wedding and developing my compact flash combined with a tall glass of wine, and afterwards it�s the best nights sleep I get�Exhausted and exhilarated at the killer �Kodak Moments� and�yes�disappointed when I did something I should not have done! When you shoot 300+ images there WILL be mistakes!

 

To Everybody:

 

Than you for your contribution!!!

I would never change my contract for a potential client. The mere fact that this person tried says volumes about what the person will be like as a customer. Just say NO. Also, I have not had to shoot a wedding where either the bride or groom or any of their parents are lawyers, but I would likely not accept the client if they were. Seriously...

 

Jonathan Russell

OK William - you have lots of input here to consider. Lots of "opinions". Do what you think is right and let us know how

it turns out ;-) Yes - feel free to call me - I'm also in Alexandria...but over by Kingstown. Mary - phone number is on

my website.

Service contract clients are expected to negotiate terms like price and the nature of the services. They may be served well by seeking other types of changes such as the ones this person seeks. While they have a right to seek such changes, it is sometimes a red flag that other demands and interpretations will be asserted later.

 

I am in a service oriented industry and I always look for certain warning signs in potential clients such as.. unrealistic expectations (this is red flag no. 1), EXCESSIVE questioning about experience and knowledge, difficulty governing emotions, substantial nitpicking over contract details and noticable assertiveness, know it alls, and so on.

 

The money is often tempting in such cases but avoidance of needless stress and losses is priceless. In essense, if I get a bad vibe, they quickly get a short and polite rejection letter thanking them for their interest with the suggestion they promptly seek another provider.

 

I don't know if wedding photographers usually get paid up front. Maybe they can hold back the images as leverage against non-payment, I don't know. In my field, if payment is not secured, its up front. Period.

William-

This is what I call a "Type A" bride. Explain to her how dedicated you are to your business, but don't change your contract. These types of brides are very hard to please...I have only modified my contract three times. In all three cases the bride/groom were in the entertainment or political fields and did not want me using the photographs for advertising. Good luck!

RTB