Client wants to write in a penalty if delivery is late

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    • #42961
      AvatarNYChummingbird
      Participant

      I’ve produced two videos successfully for this non-profit but it was late because the staff at the organization did not provide access to their subjects and other resources in a timely manner. They also decided in the last minute to add on translation and subtitling which they paid for and got but that made the project drag on way past their own stated deadline (May -08 done in August ’08). Now they are on year two of their grant and want two more videos. They only told me about this in early November and are conducting interviews with subjects. I am expected to finish both (18-25 min. each in English & Spanish) and have the DVD menu done and 5000 copies duplicated by March 23, 2008. For each week I am behind, if it is my fault, I will be penalized 5% of the total budget. Of course, if it is the fault of the client/organization, I won’t be penalized. I was told that would be a discussion between us both if it came to that. I do not like this clause and am very uncomfortable with it. I understand the client’s concern because they are beholden to the city to complete it and get funding. However, it seems to me if the main problem about missing the deadline was due to staff, the warning or penalty should be between the Executive Director and his employees and not me. How can I reassure them without resorting to this disincentive that would be legally binding?

    • #179955
      AvatarNYChummingbird
      Participant

      Sorry, I mis-wrote: the deadline is March 23, 2009.

    • #179956
      AvatarAspyrider
      Participant

      “I was told that would be a discussion between us both if it came to that.”

      I would not sign a contract like this. It appears to me to be a way they can blame you for their slacking. If you feel uncomfortable entering into any job agreement, then don’t. Ask them to remove the clause and give your reasons why in a polite way. Due to the history of their promptness in the past I would feel uncomfortable too.

      J

    • #179957
      Avatarbirdcat
      Participant

      Maybe you should add if it is late due too their fault, there should be a 5% per week premium charged?

    • #179958
      AvatarEarlC
      Member

      Exactly! I’ve worked with some people in the non-profit arena, as well as the California State University System, and each time my production agreements/contracts stipulate that failure to delivery ANY element of the agreed production on their part at the specified times will constitute a breach of contract rendering the entire agreement null and void and they will forfeit any monies paid up until that time.

      My standard agreements/contracts (not theirs) also stipulate that in the event of a breach of contract, should the client(s) desire, a new contract will be necessary with “some” consideration regarding the previously forfeited monies paid, but will be subject to “substantial” additional costs, fees, charges, etc.

      I’d NEVER sign a contract from the client that so stipulates. It it my experience over the past 20 years that 99 percent of late deliveries and failure to produce events are a direct result of client incompetence, infighting, lack of organization or mismanagement of either resources, staff or funds. They’ll (like many of us, unfortunately) find and use EVERY excuse in the book, but the vast majority of these events are due to poor organizational skills on the part of the client or its representatives.

      This makes signing of such an agreement totally unacceptable for my operations. Given the cooperation and control over our prouductions we ALWAYS deliver on time, more than is expected AND under budget. Our clients like and appreciate that and this is why we can so stipulate in our agreements/contracts as stated above.

      We also have clauses protecting us in the event of acts of God, war, Mother Nature or criminal intent. We define exactly what is to expected, establish a production calendar, and specifically state that any and all services or expenses incurred beyond what is stated are to be paid at the time of their occurence, or such additions will NOT be performed. We further state that extensive additions, travel and other expenses, or a change of the script, direction or definition of the project will constitute the necessity of a NEW agreement, the establishment of a NEW production timeline and render the current agreement/contract null and void.

      While it is important to make an attempt to provide confidence to our clients that we will perform as promised, it is equally important for them to realize that WE are a professional service provider with a positive track record and cannot enter into agreements that in any way put us at a disadvantage in the performance of our services, even to the extent that elements of production that could/would put us or our equipment in harm’s way (our decision entirely) will NOT be pursued without significant added expenses for coverage and the hiring of qualified experts to render such events in a safe manner.

      IMHO no attorney with experience in video/film production contracts would allow her/his client to sign a document containing such a clause without serious “whereas and wherefores” appended to the final contract.

      None of what I say is intended to be legal advice, or to imply that I am qualified to render legal advice, nor am I licensed to practice law in any matter. This is simply to offer some insight into what I have/would done, and anything anyone does is based on their decision and I accept no responsibility or liability directly or indirectly for their use of this information. Sorry, necessary.

    • #179959
      AvatarGrinner Hester
      Participant

      A: work your way around contracts with healthy relationships.

      B: never miss a deadline.

      C: if the bed appears to be on fire, do not lay down on it.

    • #179960
      Avatarbrandon0409
      Participant

      Personally, Before i signed that bull crap contract, I would take a copy to my lawyer and review it with him. But as was stated above, If they have a history of tardiness, then that should be a red flag right there. I would back out graciously and recommend someone else to them because you don’t agree with their contract.

    • #179961
      AvatarSteveMann
      Participant

      …. and if I finish early, I want a bonus!

    • #179962
      Avatarcomposite1
      Member

      Whoohoo! Let’s whip up a posse!

      NYChummingbird, the other poster’s have passed you much good advice. The only thing I will add is especially on your large contracts, get everything in writing. The schedule for pre-production, production, post all of it. Another thing that will help alleviate ‘client malfunctions’ is for them to give signed stage completion approvals. That means; upon completion of the elements of the current project stage written approval will be given by the client’s assignee(s) (preferably the person signing the checks or at least a department head(s)). Once approval is given, then you move onto the next stage of the project and so on until completion. Make sure it’s in the contract that upon approval of each stage you’ll be sending out an invoice to be paid within the agreed upon payment schedule.

      Working like this forces you to stay on schedule and will let you see fairly quickly whether you’re meeting your goals in a timely manner. It will also make it easier to show your client how last minute changes or delays on their part are adding to the cost of the production (which are not your fault!)

      Getting gigs is great (which is why we all do it!) But you must contain your initial excitement to do the job and weigh out realistically whether you can complete the work within the client’s expected time frame and with your available personnel and resources. If for any reason you feel you may be unable to work within said time-frame, you probably can’t. If the client is unwilling to extend their initial deadline to a mutually condusive time-frame, pass. Better to move onto the next gig than get caught up in one like that ‘burning bed’ scenario.

    • #179963
      AvatarAspyrider
      Participant

      Good on you!!! Here is your bonus, go get Vitascene and Adorage FREE here! πŸ™‚

      http://www.prodad.de/gb/register_vitascene_starterkit.html

      http://www.prodad.de/gb/register_adorage_starterkit.html

      Hehehe,

      Ok, you deserve a prize so I found those. LOL

      J

    • #179964
      AvatarAnonymous
      Inactive

      If you have a lawyer and you can’t do without the job, take the contract to the lawyer and write in your own stipulations that will protect you in the event of the client delaying the project. Better yet, write up your own contract and see what they say to your defined guidelines. Define dates of completion of certain milestones in the project, define dates when the client will give you certain materials to complete the project, and define what happens when the client doesn’t get you the materials on time.

      It’s hard to turn away work if you don’t have any other work readily available, but as long as you communicate what you want and need to the client and they accept your requirements, you (everybody) will be happier in the long run. Communication is one of the key reasons for a contract (besides protection). Everybody is on the same page when the details are written out.

      In any event, it could even be argued that the work will suffer under such demands, and for the sake of the project you would prefer to renegotiate the contract.

    • #179965
      AvatarGrinner Hester
      Participant

      If a deadline is missed, ALL the work is for null.

      I’ve been at this for a coupld of decades and I have never missed a deadline. That makes for unemployment. I do what I can do given the time and the budget. That’s my job. If I were offered a footnote in a contract making provisions should I not be able to do my job, I’d laugh. Who would even write up such a thing? Miss the deadline ya don’t get paid. period.

    • #179966
      AvatarNewBirthProductions
      Participant

      Contracts from a client, never. you are the service provider, you provide a bid and contract covering their concerns, do not sign theirs.

      If they are concern about it getting done on time, listen to Earl, he nailed it.

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