Brides dad is a lawyer, has questions about contract.

[rustys pics]

Yes, pass on this one-run like Hell! They'll never be satisfied.

[dirtlawyer]

In law school I was taught that when a potential client has unreasonable expections, or tries to negotiate the juice out of your contract of employment, show him the door. You don't need this headache, or any other headache that will crop up up to and after the delivery of the final product.

 

Contracts general exist to keep honest people honest. This guy is trying get the upper hand.

 

BTW, get some insurance.

[BrianS1664879711]

Wow... a lawyer who doesn't trust lawyers. I never thought I'd live to see the day. :)

[janet cull]

>>>Don't walk, run from this guy.<<<

 

Ditto.

[Jerry_]

"...even if the date is changed or the wedding cancelled for any reason; including acts of God, fire, strike and/or extreme weather. "

 

 

Being a retired military type, if either the bride or groom were to "deploy" under military orders, I would be inclined to refund the deposit. Good will is sometimes worth more than the "kept" deposit under any and all conditions.

 

 

Common sense can't hurt.

[john_h.1]

"you cannot make him responsible for any action of a third party"

 

Yes he can. Its called a hold harmless clause. The entire purpose of such agreements is to make a party to a

contract reposnsible for third party conduct. The legal philosphy is behind this is that it promotes commerce by

enticing one to engage in economic activity where they ordinarily wouldn't if they assumed all the risks. If one side is

willing to assume risk when the other side ordinarily responsible for the risk won't, they may decide to engage inthe

transaction afterall. Its very common and routinely upheld.

 

There seems to be an alarmist reaction by some to the guy's questions as the exist so far. They are not only

legitimate, they expose gaping holes in the contract. Relax! The guy is practically doing Andrew a favor by raising

these issues.

 

First, the 'unnacceptable degree of misconduct' is extremely vague. A clear, concise and standard approach would

be damage "caused by" wedding guests and vendors. The father just wants to know what the photographer wants so

he can better advise if it makes sense to accept, negotiate a tweak (designed to fit the photographer's position

and/or his daughter's) or just walk.

 

The limitation of liability clause is very limited and does not answer his normal legitimate question. It only says that

liabilty is limited when THE EVENTS LISTED occur. It does NOT say what happens if the photographer decides on

his own to send someone else. It makes sense to limit liabilty if things are beyond a photographer's control. He just

want's to know if the photographer doesn't believe he has to personally show for other controllable situations. Again

this helps him better decide whether to reccommend his daughter accept, seek an adjustment or to walk.

Personally, I would limit liabilty in all situations to the fee and expressly exclude consequential and inciental

damages but agree to personally deliver the services absent reasons beyond control.

 

As mentioned above Andrew, follow the advice of a lawyer in your jurisdiction instead of ours and certainly have this

contract shored up by one. Where did you get that thing anyway?

[dirtlawyer]

Brian, I trust lawyers more than I trust the general public. Lawyers have an ethical obligation not to use subterfuge to achieve their ends. Like calling my attention to clauses his client had "sneaked" into a contract hoping I wouldn't notice them (this actually happened).

[craig_gillette]

I don't see anything nefarious at the bride taking the contract to her father to review. My daughter is taking assistance from a grandmother and aunt while buying a house, one's a retired realtor, the other is in property management, I hardly consider this is attempting to take advantage of the bank that owns the property.

 

Any money you save by not having good legal advice on your contract or by not having insurance will seem like small potatoes the first time you are looking across the table at a client's attorney. Insurance isn't that expensive - most of the nightmare scenarios don't happen but there are lots of little things going on all the time that an insurance policy will deal with.

[BrianS1664879711]

"Yes he can. Its called a hold harmless clause."

 

I'm sure you are correct. But I've seen many episodes of Judge Judy, Judge Joe Brown, and Judge Extreme Akim where folks have sued in that type of situation and they were told to sue the correct party -- the one who actually broke the camera, car window, arm, etc. rather than the owner of the venue, etc. :)

[funkag]

Tell him to call your lawyer?

[chris_werner]

As to the comment that this guy is a good lawyer, I couldn't disagree more.

 

Q2 is the worst - basically he's telling you that he doesn't want to be responsible for any damages that may be inflicted upon you. Tough luck to you, as it were. Basically, his attitude is that you should take a risk you have no way of assessing. He will know the guests for the most part, plus, as the father of the bride, he could easily curb any excessively unruly behavior.

 

And the reference to insurance is just stupid. Insurance for party A is never there to protect to protect party B from the responsibility for damage which is their fault. It affects party B only if they refuse to or can't pay. And in that case, the insurer will go after B to recoup if it makes financial sense to them.

 

This guy is bad news, but . . .

 

While it would be delightfully fun to tell him to stick it where the sun don't shine, you're in business to eat, pay the light bill, keep the wife happy, etc.. I run a small business (not photographic), and I'll be the first to admit that we frequently take risks and do things that irk the daylights out of me and that are easy to say we shouldn't do because walking away from revenue can be the ultimate in self destruction. sometimes you gotta roll the dice and go with the odds, and just hope you don't crap out. And realize that if you do, there's always tomorrow.

 

My thought process is to ask myself this. "What is the realistic worst case scenario?" Not the worst case scenario, the *realistic* worst case scenario. How likely is it? How bad is it? What are the consequences if it comes to pass, and how does that affect me? How deep would the damage be and what would I have to do to recover? What is the revenue relative to those risks? How hard would it be to replace that revenue?

 

At the end of the day you just need to check your gut and make a decision. Given that you will be paid in advance, if I read the above correctly, I would tend to look at his issues and conclude that he's a self important doofus but no real threat.

 

As to how to respond.

 

On the insurance - "Sir, I pay for insurance to protect me, not to protect others from the consequences of their actions. Now I recognize that there will many guests there, and many you may not even know. And you certainly should not have to monitor their behavior on what is going to be a very special day for you and your family. But, if you are concerned about their behavior and damages they may cause, I would suggest that you look into event insurance to protect yourself from any unfortunate, unforeseen events."

 

The fact that you do not have insurance to protect you is none of his business, and to mention that would only create an inappropriate distraction.

 

As to the guarantee, "Yes sir, I am guaranteeing that I will be there. Of course, I can't provide a guarantee against unforeseen circumstances, and Section 22 of my contract addresses that."

 

Those response suggestions assume of course that you intend to work with them. That's your first decision.

 

Lastly, the counsel to consult an attorney is reasonable, but if you do (I'm not clear that you need it) the best piece of advice I ever got was this - "Never let a lawyer make a business decision for you". Actually - that's a paraphrasing - the original was "R" rated. ;-)

 

You make the business decisions. It's your business. All an attorney can do is assess and quantify legal risk. They can't and shouldn't translate that into a business decision, though most in my experience try to play that role, but the good ones, and there are a lot of them, respect that boundary.

 

Good luck on your decisions, and best wishes!

[dcreason]

first you almost never decline someones business. however, you may certainly make it easier for them to choose

another photographer. second, do not negotiate a contract once it is presented, it will essentially bring into

question the whole contract. After this experience if you feel the need for a change, do it before the next

client. the lawyer will have greater respect for you and be less likely to pursue this any further if you simply

refer him back to the contract for the answers. something like: in response to your question regarding the

retainer, this is satisfactorily explained in section 2 of the contract... this is exactly what he would do if

you were questioning his contract.

[john_h.1]

>>>On the insurance - "Sir, I pay for insurance to protect me, not to protect others from the consequences of their

actions. Now I recognize that there will many guests there, and many you may not even know. And you certainly

should not have to monitor their behavior on what is going to be a very special day for you and your family. But, if you

are concerned about their behavior and damages they may cause, I would suggest that you look into event insurance

to protect yourself from any unfortunate, unforeseen events." & "The fact that you do not have insurance to protect

you is none of his business<<<

 

 

Who would want to hire someone saying something snotty like this? Hold harmless agreements should concern any

potential client. Of course its his business. The potential client is being asked to insure someone against almost any

sort of losses by caused by third parties. Its completely reaonable to wonder why his daughter is being asked to

assume something like that. Read Joseph Harris' post. A straight forward answer is that there is none right now but

that the these issues were a factor in offering a lower than usual fee. Economic adjustment for risk is something this

guy will understand and maybe even accept.

 

>>>As to the guarantee, "Yes sir, I am guaranteeing that I will be there. Of course, I can't provide a guarantee

against unforeseen circumstances, and Section 22 of my contract addresses that.<<<

 

One need not be a lawyer to figure out that the written contract is crucial. Lets look at what the proposed written

contract actually promises... "Marc Photography will reserve the time and date agreed upon, and will not make other

reservations for that time and date." Well, Marc Photography can be Andrew, agents of the company, substitutes,

assignees (other businesses altogether) that show up and shoot at the assined place and time. This contract has

more holes than Swiss Cheese. The client and her father SHOULD worry about whether the person they want

shooting will show up and what they can expect if they don't.

 

"he's telling you that he doesn't want to be responsible for any damages that may be inflicted upon you."

 

Good grief, who would want to be responsible for ANY damages? The question itself seeks badly needed

clarification. Hardly an evil plot.

 

"his attitude is that you should take a risk you have no way of assessing."

 

The client is the one being asked to assume risks. Not all the assement is on the side of the guests. What is the

value of the pros equipment? Does he leave it lying around where someone (need not be a guest) can steal it?

There's a ton of stuff that is unknown the other way. He just asked a question. No where is it stated that there are

any demands.

 

"This guy is bad news... ...While it would be delightfully fun to tell him to stick it where the sun don't shine"

 

Just because he asked a couple questions that any other potential client may reasonably (and should) ask? Jeez.

Just because the father is a lawyer doesn't make him some ruthless Machvellian scoundrel. If someone can't handle

a potential client asking a couple questions like this, they may be better off closing shop and working for someone

else that can. If the guy causes unreasonable expectations or conditions on his daughters part, then they can be

sent on their way. Hurling vile comments at someone who done nothing wrong? Its really immature.

[phyrpowr]

Forget who's a lawyer, just look at the questions asked and what the agreement says, and think about the weddings you've attended.

 

The retainer clause promises nothing about showing up at all, it "sort of" assumes it, but really only deals with payment. The limit of liability clause is also no guarantee that anyone will show up, only that best effort will be made, or a refund given (which is really all one can do)

 

The clause concerning breakage might cause me as a client to look elsewhere. Obvious scenario at a wedding: photog leaves camera on table or tripod for "just a SECOND", five year old ring bearer or flower girl bumps it, it falls and breaks. I, the client, get bill for $2000. Ditto for a purely accidental punch spill. I don't think I would assume financial responsibility against all the potential claims of someone I don't know

[nealcurrie]

I disagree with the general response you've received so far - I don't see much in his questions to be concerned about. That a lawyer is asking two questions about a contract that has at least 22 sections isn't something to worry about IMO. His first question is a very valid one, as that section of the contract doesn't address it. I don't know enough to speak about his second question.

[pabloconrad]

bail before he has a chance to sink your boat.

[jack_welsh]

I feel that the only contract that should apply is the one made by the photographer's. Layer's will put their nose in anything!

[jpo3136b]

Okay, looks like you're getting some good advice here; but, I want to chime in.

 

I agree that you shouldn't worry too much just because they are asking questions up front. It's people yelling at you

afterwards that would count, cost you grief, and maybe get you embroiled in a dispute. People asking you questions up

front are concerned customers who are actively thinking about your product. You should be glad to tell them the truth

and have a chance to sell them your services as you offer them. Just be yourself; don't promise stuff you won't do;

probably keep on going with the same kind of good stuff you probably do for everyone else will be good enough. If you

have done this before, know what you are doing, and have had many satisfied customers, then there's no reason why

you can't support these people at their event.

 

On question 1: a guarantee is a promise, fundamentally. Just look them in the eye and tell them the truth about whether

or not you intend to keep your promise to be there. I bet you really do intend to keep your promise, and would show up

for this client and many others. If they need reassurances, just tell them the truth.

 

You're a man. Is your word your bond? If it's not, then don't promise anybody anything and get out of the business of

speculative agreements. If you are a man, and your word is your bond (which I'm thinking you probably are) your sense

of honor will move you to do what you say; and, if some problem comes up, you know you'll do what's right to give those

guys the best you can to power through it.

 

For question two: are they responsible for their guests? Those guests are fundamentally adults. If there's a minor

present, then that minor has a guardian or parent somewhere who is responsible for his actions. Going to a party hosted

by someone else does not totally absolve and relinquish that person from all responsibility from himself and his own

conduct. By the way, if some guest deliberately breaks your stuff or attacks you or something, then those hypothetical

problems would become real-world criminal or uncivil activities, I'd bet. I doubt there's some law that says fighting is

against the community's rules, unless you're drunk at a wedding reception or something. We could image all kinds of

hypothetical catastrophes, but in the end, those adults are still adults, fundamentally responsible for themselves, just

like you are.

 

To close, I'd like to say that I'd bet they are thinking people. The event is important to them, so they probably naturally

dumped some nervous energy into reviewing the Big Wedding Photographer Contract. You're probably a hero to these

guys. You're probably someone they look up to and trust. If they didn't, I doubt they would have stuck around long

enough to ask you questions. They probably would have just gone to another business and shopped for another deal.

 

If you are a stand-up guy who is a real photographer, like I'd bet you are, then you can power through a lot of this stuff by

proceeding with confidence and reassuring your client, whose nervousness probably has little to do with you. I think you

can do it. Contracts are not there to enslave people into doing stuff totally against their will under any circumstances;

they're agreements. Just downshift this problem some by proceeding with confidence with your client, and I'll bet you do

great.

 

Now, get out there and plan them some good wedding photos! J.

[doug_harhai]

Ok--Lawyer weighing in here. (Persona non grata, judging by some of the first few posts...). I haven't read more than the first few responses because there are so many but here is my take on why he is acting the way he is:

 

He is a lawyer! That's what we do. We negotiate daily. And I give him credit for being a little concerned that your contract doesn't quite say that you will be there on a certain date--the first sentence of Paragraph 2. "Retainer", says that you will 'reserve' the date, not appear on it. Call it splitting hairs? That is exactly what we do. That is why cases go to litigation. Despite the belief of some of the public, periods, commas, and their placements in sentences DO make a difference in legal meaning.

 

Now, imagine he doesn't raise this paragraph 2 issue with you, and you don't show up on his daughter's wedding. She is, of course, crushed. But more than that, he will have to sue you. It will eventually come out that he didn't address the distinction between 'will reserve the date" and "will appear on". And what is more, his daughter will find out. His colleagues will find out. He will be embarrassed, his relationship with his daughter harmed, and his professional reputation possibly tarnished.

 

Many lawyers work on retainer fees, as you do. Some clients balk at this, they want to be billed net 30, whatever. One comeback for this is,"Mr. Client, how can I diligently fight for your interests when I can't even fight for my own?". Here, he is fighting for his own--in a literal sense. He will never have a more important 'client' than his daughter, and an event potentially more costly to him than this wedding. You can bet that he is going to look at this contract twice. Don't blame him for his competence; thank the rest of your clients for their legal incompetence. Their failure to read the agreement critically and legally and negotiate makes this father look like some kind of ogre to many of the patrons of Photo.net.

 

As for his second concern, it appears like he was asking a question, and I can see his point that your CGL policy should cover the damage to your equipment. It's a cost of doing business. Wilful misconduct and intentional acts, gross negligence by Bride would be potential exceptions. But the point is that it is a starting point and all negotiable.

 

Believe me, most lawyers are not out to get you. Most are not litigious, outside of their professional lives. Most like to negotiate contracts. But they can also be a good source of referral business. Good luck.

 

(Of course, this is not legal advice and no legal relationship is created by this post--but you KNEW that this was coming, didn't you?)

[jmarshall]

From an insurance perspective, I think it's entirely reasonable to expect the host of a party to bear some

responsibility for the misconduct of his guests. Even a policy covering Andrew for damage to his equipment (not a

CGL policy, which would apply if Andrew caused damage to a third party's property and not cover damage a

third party causes to Andrew's equipment) may have a deductible and filing a claim (particularly a large one) might

bring

your policy up for underwriting review at renewal, possibly resulting in higher rates or a cancellation. There are costs

Andrew would bear (even if he had insurance, which he doesn't). Whether it makes sense to try to hold the host

liable, whether the language in his contract is sufficient/appropriate, I'll leave to the lawyers. But I can understand

wanting someone else to bear those costs.

 

Andrew -- you need at least TWO different insurance policies. A general liability policy, which provides coverage in

the event that you cause injury to another person or damage to another person's property in the course of your

business. A guest carrying a drink in one hand and a lit cigarette in the other trips over a light cord, breaking her leg

and starting a fire. You've got her injury, the injuries anyone else sustains and the damage to the location ... all of

which you could be held legally liable for. Many catering halls won't allow you to work unless you can provide proof

of this coverage. Call your insurance agent to inquire about it. If you're a paid subscriber to pnet, you can buy

insurance through a policy it has for its subscribers. PPA also has a program.

 

Second, you need a policy that protects you against damage to your equipment. Your homeowners policy MAY

provide this coverage, but again, you should check with your agent. My HO policy does not cover photographic

equipment used to generate income. Even policies that do provide coverage often have a relatively low limit (maybe

$1,000) for photo equipment, and your deductible will apply. So a commercial policy may make more sense.

 

Good luck!

[DickArnold]

Some points from having had an active wedding business. The first is that insurance is important. Second. Having had problem clients I found it was better to do some screening and turn them down when I became instinctively queasy. When I turned down a client, which I did on several occasions, it was based upon my gut, not on some legal basis. These were judgments about attitudes of entitlement, exaggerated expectationns and my potential ability to get along with the client. I usually just said, sorry but I booked that date. This was proven out in that a few that I turned down caused problems elsewhere in my small town according to my favorite JOP. Thirdly. In my former life I was involved for several years in running major acquisitions and I respected our lawyers but retained the authority to make decisions after weighing the risks that they presented. Lawyers were generally most effective when they give good advice about the level of risk we were about to undertake. There is always risk in any endeavor. Someone has to decide whether that level of risk is acceptable. Even if the advice given above given above is from lawyers, or from people who write like they think they are lawyers, I would not take it from the web. It needs to come from someone who is familiar with the jurisdiction. Giving what I said above about dismissing clients for instinctual reasons, there is nothing like facing the person with whom I was contracting and judging for myself whether I could do business with the individual. Most litigation comes from someone who is pissed off with you personally or someone, like in my former wedding business, who was trying to beat me out of a buck. As I said earlier, I was busy enough just to give in, rather than become aggravated and have a couple weeks or more of my life ruined with resentments. Only the OP has dealt with the lawyer. Maybe he appeared reasonable and maybe not. I cannot judge that. I repeat, I simply would not place much credence in legal advice by someone I had never met on the web.

[alex_smith13]

Just to toss in and agree between Doug Harhai and Dick Arnold. I do not think that the questions in per se are objectionable. They seem to be legitimate questions to clarify terms of a contract. On the other hand what seems more important is what does your gut tell you? Not just by him asking the questions but how he asked the questions. Was it in a reasonable inquisitive manner or was it confrontational?

[marcphotography]

The email she sent sounds a bit better. Anyone got any idea how I should respond?

<p>

 

Dear Andrew (and Tiffany),

<p>

After reviewing the contract, I have some questions on things that may need to change before I can sign it and send it back to you. I really want to hire you as my wedding photographer, so I hope we can work something out.

<p>

First off, let me say that I know this contract is intended to protect your business, and I respect that, but I need something in there to also protect me. There needs to be a clause that states that if Marc Photography does not make it to the event, they will fully refund our money or find replacement photographers at the agreed upon fee.

<p>

My next question has to do with the copyright release. By going with the Forever Package, we are purchasing the copyrights to the photographs. Paragraph 13 in your contract states the opposite. I don't have a problem with you using our images in advertising, on your website, or in contests, etc., but paragraph 13 needs to be amended in a way that states that the copyrights legally belong to us (or that we have the right to reproduce the images, etc.).

<p>

Is a professional videographer the same as a professional photographer? We have not decided whether or not to hire a professional videographer for our ceremony. With the way the contract is worded, it sounds as though if we hired one, you two could just walk out on the job and not owe us anything. I understand not wanting another professional photographer there, but what about a videographer?

<p>

Lastly, in the contract, it states that should one of our guests break a piece of your equipment, we are responsible for compensating you for damages. Do you have insurance on your equipment? Insurance should cover accidents such as this. Of course, if we have a guest that is purposely wrecking your equipment, I would understand wanting compensation. What kind of equipment will you be using at the reception? I'm picturing you two carrying large cameras around, or are there light fixtures of yours that will be set up? Of course, I do not foresee any of our guests breaking any piece of yours, but you never know what accidents may occur.

<p>

Again, let me say that I like you two a lot and I hope we can work something out. I do not think you two are out to take advantage of us, but the contract should protect me and you both. I love that you have a new, growing business and I hope to help support that. Oh, that reminds me- do you have any references? Maybe someone's wedding you did and they wouldn't mind if I called and asked them about you? I would be very appreciative.

<p>

Thank you for your time. If you want to talk to me directly, my cell number is [PHONE # REMOVED BY ADMIN], or you can email me back whenever you get a chance. I look forward to hearing from you soon.

<p>

Sincerely,

[NAME REMOVED BY ADMIN]

[mark_e2]

In my opinion, attorneys love to negotiate - it's what they are trained to do.

 

I think the contract should state that a representative of the agency (not a particular photographer) will appear

at the location, date and time specified for the purposes of performing under the agreement. Going on to say

that unforeseen circumstances may hinder the performance is not unreasonable but you must make a reasonable effort

to perform in any case. On the flip side, you would not likely be notified if a parent of the couple suffered a

medical emergency on the morning of the event that caused the event to be postponed.

 

As for insurance, you are greatly at risk without it. A guest who trips over your tripod and is injured, or is

injured by negligence on your part has clear action against you and will prevail. The same policy that covers

these perils will also cover damage to your gear. And you can add a rider that will cover damages resulting from

your failure to perform as a result of the issues already mentioned.

 

I would not turn away business due to my own failure to plan. Word of that travels faster than you can imagine.

[marcphotography]

My package states that they are buying the copyrights to the photos. Does this mean that I cannot use the pictures without their permission after I give them the CD? I figured it just gave them permission to reprint the pictures and do whatever they want with them.