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Client issue

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Greg Ball
Client issue
on Mar 23, 2016 at 8:26:42 pm

So I was hired to shoot and edit a video for a corporate client that is 70 miles away. The signed the agreement and sent a deposit check.

We had scheduled a conference call for today, and the client requested an in-person at their office. We are not shooting at their office.

I suggested that we meet by telephone, since there's no advantage to meeting in person to discuss the next steps. I told them that there would be a 1/2 day fee for me to drive 140 miles and have a meeting. Their boss was upset about this, and indicated that he didn't "like surprises". I called him and explained that this would take about 4 hours of my time, and we really only sell time. He agreed to have a phone meeting.

They have now cancelled the project. So I guess I need to return their deposit?

What do you guys think about this, and how would you have handled it? I've deposited the check. Any suggestions?

Greg Ball, President
Ball Media Innovations, Inc.
https://www.ballmediainnovations.com


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Joseph W. Bourke
Re: Client issue
on Mar 23, 2016 at 8:44:27 pm

I would certainly consider billing for the amount of time you have in to the project, since it seems you aren't going to gain any future work by not doing that. From the sound of the boss's response, I'd count myself lucky that the job went south when it did.

Joe Bourke
Owner/Creative Director
Bourke Media
http://www.bourkemedia.com


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Todd Terry
Re: Client issue
on Mar 23, 2016 at 8:55:53 pm

Yeah, bill for whatever time you have invested, return the rest. Although I'm guessing it's not, if their deposit is small and doesn't cover the time you've already put in, bill for the rest.

I'm sure that you (like we do) have a rate for meetings, phone calls, and all that other admin stuff that falls under the pre-production umbrella. Just figure up the time you've spent, and that's their bill.

OR... I don't know what your contract says. If it is ironclad, or if it specifies a "kill fee," or a number of other things, you could legally be entitled to more... maybe even the full amount of the contract if they have cancelled it without a justifiable cause.

But I'd say just cut 'em loose. Bill for the real work already done (and yes meetings and phone calls are real work), and move on.

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com



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Greg Ball
Re: Client issue
on Mar 23, 2016 at 9:31:33 pm

Thanks Guys, I never bill for phone calls, but to travel 140 miles round trip just to show my face is really a strange request. I really haven't done any work yet and do not have kill fee in mu agreement. Perhaps I should moving forward. May I ask how you calculate your kill fee?

Greg Ball, President
Ball Media Innovations, Inc.
https://www.ballmediainnovations.com


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Todd Terry
Re: Client issue
on Mar 23, 2016 at 9:49:37 pm

Well, I couldn't say because we don't have any kill fee provisions in our contracts. They do exist in the world, but kill fees are really something that is much more common in the ad agency world than in the production world. Technically with a contract (or, I should say with a good contract), they owe you for the amount of the contract even if they later decide "Ehhh, we changed our minds and don't want that after all." That's among the protections that a contract offers you, of course.

Production projects are generally shorter so you're generally billing for the full amount... whereas an advertising agency's work for a client might be a campaign that lasts for a year or two or even more... so therefore kill fees are common.

As for phone calls... yep... we charge for those (call your lawyer and ask a five-second question and see if you don't get a bill for 10 minutes of his time). But we do it within reason. If we call a client and say "Was that supposed to be blue or green? Ok, thanks." Well, that's not a billable phone call. But a thirty-minute or hour-long conference call? That's not a call, that's a meeting... and billable as such. As you said, you're not selling anything but your time... and that's definitely time.

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com



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Greg Ball
Re: Update Client issue
on Mar 24, 2016 at 3:50:31 pm

Thanks for your responses. So now the client has cancelled the project over my request to charge them for driving 140 miles round trip for a pre-production meeting.

Here's their letter. I've removed the amounts for obvious reasons. Any thoughts?

As per our recent emails and conversation, thank you for taking time initially to propose your services for XXXXX. While were initially very impressed with your presentation, qualifications and experience, we are not comfortable moving forward from this point with your services. We had requested a face to face meeting at our office to “kick off” the work and we were promptly notified of an upcharge of $XXX for you to attend. This sent a very unfortunate message regarding the future working with you.



We did provide you, per the attached agreement, a deposit of XX% in good faith in the amount of $XXXX. Please remit a company check in the amount of $XXXXback to XXXXX by Friday, April 1, 2016.

Greg Ball, President
Ball Media Innovations, Inc.
https://www.ballmediainnovations.com


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Todd Terry
Re: Update Client issue
on Mar 24, 2016 at 4:07:15 pm

It's hard to say, Greg, with out seeing your actual agreement.

If it is a true real contract with the verbage necessary to make it a contract... and if all parties have agreed to it, then they can't just back out of it unless it contains some provisions for them doing so. That's what the contract is there for... to protect them by making sure you do the work and to protect you by making sure they pay you the money. If either party has the leeway to say at any time "Ehhh, I don't think we want to play anymore," well then it's useless to even have the contract.

You keep using the word "agreement" so I don't know if it is a real contract or not. Ours too all say "Agreement" at the top, because the word "Contract" is a bit scary and off-putting... but actually ours are contracts... because they contain the three things that legally make them a contract: offer, acceptance, and consideration. If yours has those three things, and all parties have agreed to it in writing (or legally, even a handshake or verbal agreement) you have a contract and they can't just decide on a whim they don't want to play anymore.

So, if you do have a legal and binding contract... no, you don't owe them the deposit back. And they owe you the rest of the money, as well. Just depends on what exactly it says... and how much you want to fight to get it.

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com



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Greg Ball
Re: Update Client issue
on Mar 24, 2016 at 4:22:49 pm

Hi Todd,

Yes we have a formal agreement that they initialed and signed. The one caveat is that it only indicates payment for cancellation of the shoot within 48 hours as billable. But are you saying that regardless I could keep the deposit? I'm not going to in this case, but would I have a leg to stand on in your opinion/

Greg Ball, President
Ball Media Innovations, Inc.
https://www.ballmediainnovations.com


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Todd Terry
Re: Update Client issue
on Mar 24, 2016 at 4:27:46 pm

Ehhhh... hard to say... does the verbage of your contract basically say they can cancel the project with no money owed as long as they do that prior to 48 hours of the shoot time?

If that's the case, they may have a gigantic loophole that they are exercising... and they might be owed their deposit back.

It's hard to say without reading it. Might be time to lawyer up, if the job is big enough to warrant it and you don't want to walk away.

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com



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Greg Ball
Re: Update Client issue
on Mar 24, 2016 at 4:59:48 pm

Nah...not a big enough project. I'm gonna add contract cancellation language into my agreement for now on. Thanks so much for your advice Terry.

Greg Ball, President
Ball Media Innovations, Inc.
https://www.ballmediainnovations.com


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Ned Miller
Re: Update Client issue
on Mar 25, 2016 at 12:40:43 am

Hi Greg,

It's hard to say what you should do now but I would have handled the front end differently. I would have "buried" the cost of my driving and meeting time, gas & tolls or put in a minimal looking charge and jacked up a different category. Clients with staff jobs can't relate to us slicing our day up. What I really want to do is give a good meeting: get a haircut, new shoes, dog and pony show. I once filmed a sales trainer named Bob Berg, he wrote Endless Referrals. I remember his take away was: "People hire who they Know, Like and Trust." I want them to feel comfortable with me and only if I can meet them in person is this possible. So since we can't go golfing, meet them for drinks, etc. I kill for the chance to have decision makers in one room and sell them, even though it could have been "done on the phone". I love meetings! Once I'm in a meeting I can brainstorm, offer better ways of achieving their objective, give success stories, etc. If it's a small project I can try to escalate the scope by pointing out how we can gather material that will multi purpose the media, make more versions, etc. I just want my foot in the door.

My goal is to impress but a secondary goal is to worm may way around the corp, meaning once I meet the players of Project 1, I want to pivot and find out who else in the corp may need video such as HR, PR, Corp Comm, Safety, etc. Many of my bigger clients started with a small project, they wanted to check me out. It sounds like this boss took personal offense by you rejecting his offer of a meeting. Perhaps he wanted to get to "know" who he was hiring?

If all you have into them is perhaps an hour of making an estimate I'd keep an even $100 and send the rest back. Makes you look like an honorable mensch and if the new guy screws up perhaps they'll call you again. But if he seems to be a PITA from the start then it could be a mixed blessing the job didn't come tthrough. But I specialize in PITA clients.

P.S. In regards to contracts, the few times I spoke with attorneys for a "free consultation" they laid out the minimum and maximum range of their fees to go to court and there is no guarantee of winning. So when I read on this forum about contracts I remember those meetings. It takes deep pockets to enforce a contract since there's the possibility the judge woke up on the wrong side of bed that day.

Good luck!

Ned Miller
Chicago Videographer
http://www.nedmiller.com
www,bizvideo.com


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Greg Ball
Re: Update Client issue
on Mar 25, 2016 at 4:29:13 am

Hi Ned, there was nothing as far as costs to bury. There was never any discussion about a "kick off meeting". This was a simple shoot interviews and b-roll for a small property management company. There is no HR, PR, Corp Comm departments. The other funny part was that this realistically was a 2-day shoot, however the client who didn't have a clue about production, and told me this by telephone, INSISTED on a 1-day shoot. I gave them the agreement for the 1-day, but in the agreement I said that after 1 day, we will notify the client if an additional day of shooting is necessary, which of course it would be. I can only imagine how they would have handled that.

For the boss, I drove the 140 mile round trip, presented to him, showed him my work, and he hired me. There was ZERO value in driving back there for a "kick off" the project meeting for this type of video.

Greg Ball, President
Ball Media Innovations, Inc.
https://www.ballmediainnovations.com


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Ned Miller
Re: Update Client issue
on Mar 25, 2016 at 10:47:40 am

Well, in that case bill him for the time suck, couple of hours.

When I run into prospects with an unrealistic schedule I tell them I am the fastest cameraman they will ever meet, they have me for ten hours, if they can't schedule it all in that time frame then, "It is what it is", they have to go to Day 2.

This industry sucks as a business but sure is fun to do!

Later,

Ned

Ned Miller
Chicago Videographer
http://www.nedmiller.com
www,bizvideo.com


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Mark Suszko
Re: Update Client issue
on Mar 25, 2016 at 8:17:06 pm
Last Edited By Mark Suszko on Mar 25, 2016 at 8:21:23 pm

The section you need to add to the agreement/contract/blood oath is "Severability". Severability clauses make it clear that if one part of a contract fails or becomes unenforceable, the other parts can continue.


This is in a wider sense the overall term of art for the rules of who can quit, when, how, and what the consequences are. Since you didn't have formal severability language in the contract/deal memo, you don't have a lot of legal leverage when they cancel like this.

Google up some severability clause boilerplate, then customize it to your needs, but keep it in vernacular English so as not to scare off the customer.

You have clearly dodged a bullet with being stuck married to a bad or crazy client here, so consider the lost money an investment in mental health. The person demanding you make a pilgrimage so they can stoke their ego is the kind of person that would have sabotaged the production and then blamed you for their bad decisions. Really, you got off easy here, and learned a lesson without getting too badly burned.


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Greg Ball
Re: Update Client issue
on Mar 25, 2016 at 8:44:50 pm

Mark, I thought this may be better.

"In the event of your cancellation of this project, or any delay of more than two months, we will invoice you for the greater of either: 1) all work completed up to the date of written notification, including expenses; or 2) 25% of the advance deposit made for this project. All work will remain our property, but will be available if the project should be resumed at a later time."


What are your thoughts?

Greg Ball, President
Ball Media Innovations, Inc.
https://www.ballmediainnovations.com


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Mark Suszko
Re: Update Client issue
on Mar 25, 2016 at 11:40:37 pm

Not bad, but might want to put an expiration date or countdown on how long you hold onto it. Puts them on the clock, so to speak; otherwise, you're essentially storing their project for free until they decide (if ever) to resume it, apparently, without consequence.


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Ned Miller
Re: Update Client issue
on Mar 25, 2016 at 11:50:25 pm

You have to get a real live lawyer to write it so it will stand up in court. We tend to do cut-and-pastes. Otherwise there's giant loop holes in it. Once you have a true contract written you can adapt it for future clients, but there are points that need to be made that those of us who did not suffer through law school do not understand. I learned this with a custom IC Agreement I had made. However, a real contract does look scary to the signee.

When I did have issues over the years and went in and showed my home made agreement to an attorney during a free consultation, they usually chuckled. I also learned that for the amounts of money we are talking about for today's video scene, the cost of getting an attorney involved to enforce the contract is prohibitive, plus you don't know if you'll win until the end. So, if you don't trust the client with a handshake don't even start. I use a Letter-of-Agreement just so each side knows what they are responsible for, when, payment, etc. However, it would never stand up in court, it's just to avoid misunderstandings.

Ned Miller
Chicago Videographer
http://www.nedmiller.com
www,bizvideo.com


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Mark Suszko
Re: Update Client issue
on Mar 26, 2016 at 12:18:58 am

"Trust, but verify" ? :-)


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Greg Ball
Re: Update Client issue
on Mar 27, 2016 at 11:32:44 pm

Ned, I had a lawyer develop my agreement. But I don't think I need to pay again for that one clause. I would probably settle before going to court anyway.

Greg Ball, President
Ball Media Innovations, Inc.
https://www.ballmediainnovations.com


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grinner hester
Re: Client issue
on Mar 28, 2016 at 4:31:19 pm

Not all all, man. They retained you and you are willing to keep your end of the deal. Their not doing that does not in any way have to cost you money.
Communicate with them and explain you will be happy to apply that towards the next booking.



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Greg Ball
Re: Client issue
on Mar 28, 2016 at 5:24:50 pm

Thanks Grinner. I'm not sure what you're referring to... the lawyer fees or the client.

Greg Ball, President
Ball Media Innovations, Inc.
https://www.ballmediainnovations.com


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Richard Herd
Re: Client issue
on Apr 22, 2016 at 6:15:04 pm

Sorry I'm so late.

Grinner is right.

how did it end?


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