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Client wants to add something to contract - Need a little...
  
 
MBMK
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p.1 #1 · p.1 #1 · Client wants to add something to contract - Need a little suggesion here


My contract states

"Bride and Groom shall indemnify Photographer and hold him harmless from and against any claim by any other person or entity resulting from the performance of his services under this agreement."

But the client wants me to add the following:

"Bride and Groom shall indemnify Photographer and hold him harmless from and against any claim by any other person or entity resulting from the performance of his services under this agreement, except if such claim results from Photographer's negligence of intentional infliction of harm."

I mean at first I didn't think too much of the change. But I wonder, does "photographer's negligence" just make it very vague?



Nov 18, 2013 at 02:35 AM
BostonGreg
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p.1 #2 · p.1 #2 · Client wants to add something to contract - Need a little suggesion here


red flag..

what is she/her dad a lawyer? Those ones are the worst...



Nov 18, 2013 at 04:01 AM
SGallant
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p.1 #3 · p.1 #3 · Client wants to add something to contract - Need a little suggesion here


Two things:

1. Why?

2. Yeah I wouldn't accept that condition, negligent by the definition of who?



Nov 18, 2013 at 04:15 AM
alohadave
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p.1 #4 · p.1 #4 · Client wants to add something to contract - Need a little suggesion here


That change completely nullifies the indemnity.


(IANAL, IANYL, TINLA)



Nov 18, 2013 at 04:25 AM
MBMK
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p.1 #5 · p.1 #5 · Client wants to add something to contract - Need a little suggesion here


Well for the first time I've been dealing with a client's mom and that's what she would like written. Ale told me to instead add

"Except if photographer is found to have acted in a manner that is consistent with gross negligence or intentional infliction of harm"



Nov 18, 2013 at 04:43 AM
amonline
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p.1 #6 · p.1 #6 · Client wants to add something to contract - Need a little suggesion here


I think there is a middle ground. Your terms are pretty one-sided. It's quite common to have something that states something on behalf of the client to hold the photographer more responsible. That said, their version is a bit questionable and vague.


Nov 18, 2013 at 05:02 AM
D. Diggler
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p.1 #7 · p.1 #7 · Client wants to add something to contract - Need a little suggesion here


BostonGreg wrote:
.
red flag..

what is she/her dad a lawyer? Those ones are the worst...


I can tell you've been around the block, Greg.

Yes, red flag. And, yes, the worst.

If I get some contract change request like that back from a client, I've got one foot out the door. If I see anything else in them that seems red-flagish, I'm gone.



Nov 18, 2013 at 05:17 AM
scottam10
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p.1 #8 · p.1 #8 · Client wants to add something to contract - Need a little suggesion here


For starters, "...negligence of intentional infliction of harm..." makes no sense to me. I could understand the meaning if it said "...negligence or intentional infliction of harm..."

I think Ale's version is reasonable

I agree that if you need to specify 'gross negligence'
- if you just say 'negligence' it nullifies the indemnity



Nov 18, 2013 at 05:59 AM
Ian Ivey
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p.1 #9 · p.1 #9 · Client wants to add something to contract - Need a little suggesion here


If a client asked me to add that clause, I'd just add it. That's not advice, it's just an observation.

Indemnity is when you sue the party who indemnifies you (here, your client) after a third party's suit against you results in your liability to that third party. In other words, if a wedding guest sues you for $10,000 and wins, and you can invoke your indemnity clause, you then have to sue your client for $10,000. You can see how this clause presents sort of a conundrum.

A few notes about indemnity.

In most jurisdictions, you can't enforce an indemnity clause against intentional injury. If you intentionally injure someone, neither the original indemnity clause nor the amendment will have any relevance to you; you'll be solely liable for the injury you intentionally cause.

Some, but not many, states allow you to use an indemnity clause like this to protect yourself from claims resulting from bona fide negligence, such as failing to set your parking brake when getting your gear out of your car on a hill, resulting in injury to a wedding guest your car rolls over. In many jurisdictions, you'll be solely liable for that injury with no opportunity to indemnify through your client.

In a majority of jurisdictions, this kind of indemnity clause is relevant primarily to protect you from claims resulting from normal business activity that is a part of the job the client asked you to do. If you use off-camera flashes and you tape your appropriately-positioned light stands down, but the severely intoxicated best man stumbles into the stand and knocks it into a guest, causing injury, you or your insurance company might be able to recover from the client (by suing them under this contract) the amount the injured guest recovered from you when they won or settled their law suit.

What the proposed amendment might affect is a situation in which you put the light stand in an obviously stupid place -- say, in front of the swinging kitchen door -- without taping it down or flagging it, and someone was injured solely as a result of your negligent placement choice. Whether the amendment affects you or not in this situation depends on the jurisdiction and the degree of your negligence (i.e., your stupidity).



Nov 18, 2013 at 06:02 AM
Craig Gillette
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p.1 #10 · p.1 #10 · Client wants to add something to contract - Need a little suggesion here


I wouldn't sign it as originally written. Why indemnify the photographer? He or she should have their own insurance and be responsible for their own actions. What are you going to do if the venue requests/requires proof of insurance from vendors? Tell them you're indemnified by the B&G? Ask the B&G to buy you insurance? What are you going to say if they ask you about insurance for yourself or any assistants?


Nov 18, 2013 at 06:32 AM
 

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MBMK
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p.1 #11 · p.1 #11 · Client wants to add something to contract - Need a little suggesion here


Thanks guys for your input.

Craig Gillette wrote:
I wouldn't sign it as originally written. Why indemnify the photographer? He or she should have their own insurance and be responsible for their own actions. What are you going to do if the venue requests/requires proof of insurance from vendors? Tell them you're indemnified by the B&G? Ask the B&G to buy you insurance? What are you going to say if they ask you about insurance for yourself or any assistants?


Craig, first of all "resulting from the performance of his services under this agreement" which doesn't have anything to do with insurance. I have liability insurance which states it on another part of the contract. I just can't have clients sue me for ridiculous reasons, i.e. "photographer didn't capture this photo" or "why are some of my pictures b&w?" "the photographer made me look fat" = performance of my service.

Now from what I understand, the client seems to be more worried about things that are intentional. Which is understandable. But again, it's covered by another part of the contract that covered liability insurance. I've emailed clients to elaborate on what she's asking.

And I'm here trying to get a general idea of what other photographers that are in business think of such request.



Nov 18, 2013 at 06:45 AM
Ian Ivey
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p.1 #12 · p.1 #12 · Client wants to add something to contract - Need a little suggesion here


Craig uses the term appropriately. Indemnity is a form of insurance. In this case, an indemnity clause basically means your client is your insurer (or one of multiple insurers) for certain claims that third parties might bring against you.

The proposed amendment is not limited to intentional acts. Moreover, the part of the proposed amendment that covers intentional acts almost certainly doesn't matter at all to you, given that you can't gain indemnity for injuries you cause intentionally.

The part that is possibly material is the "negligence" part. And again Craig is correct to say you would be wise to have insurance to cover your own negligence, in which case your original indemnity clause might allow your insurance company to subrogate, i.e., sue your client to recover an amount they had to pay to cover an injury you caused by negligence.

I can't say I blame a client for wanting to avoid that possibility.



Nov 18, 2013 at 06:54 AM
Ian Ivey
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p.1 #13 · p.1 #13 · Client wants to add something to contract - Need a little suggesion here


MBMK wrote:
I just can't have clients sue me for ridiculous reasons, i.e. "photographer didn't capture this photo" or "why are some of my pictures b&w?" "the photographer made me look fat" = performance of my service.


I'm not certain whether you're aware of it, but the clause you quote from your contract does not have anything to do with claims your clients might bring against you. It does not, for example, protect you from the bride suing you because you missed a key shot or took poor quality photos.

The clause you quote from your agreement is an attempt to get the client to protect you against claims OTHER people -- such as guests -- might bring against you.

Perhaps some other clause(s) elsewhere in your agreement address claims the client might bring against you, but this one doesn't.



Nov 18, 2013 at 06:58 AM
Wobble
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p.1 #14 · p.1 #14 · Client wants to add something to contract - Need a little suggesion here


Just be sure not to be negligent when you intentionally cause harm and you are ok.
i think they want the word "or" instead of "of".

"except if such claim results from Photographer's negligence of intentional infliction of harm."

Negligence is going to pierce the corporate veil where you are personally liable.

Kindly decline. Like the others have said, Who determines negligence?



Nov 18, 2013 at 07:53 AM
Littleguy
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p.1 #15 · p.1 #15 · Client wants to add something to contract - Need a little suggesion here


Depending on the state - there may already be laws on the books that prohibit blanket indemnity clauses.

http://www.wwhgd.com/assets/attachments/50%20State%20Survey%2000810220.PDF

As to the question of who determines negligence - the Court of law does.






Nov 18, 2013 at 04:22 PM
TheGE
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p.1 #16 · p.1 #16 · Client wants to add something to contract - Need a little suggesion here


Am I not correct in thinking the law automatically makes it so you can't require the other party in a contract to indemnify you from intentional torts you may commit?


Nov 18, 2013 at 04:35 PM
Ian Ivey
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p.1 #17 · p.1 #17 · Client wants to add something to contract - Need a little suggesion here


Correct, GE. The "intentional" component of the proposed amendment is of no consequence.


Nov 18, 2013 at 04:42 PM
cineski
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p.1 #18 · p.1 #18 · Client wants to add something to contract - Need a little suggesion here


Make your contract, and stick to it. In the real world, it's often the people who want you to change who you are for them, who end up being the bad apples in the end.


Nov 18, 2013 at 05:17 PM
Micky Bill
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p.1 #19 · p.1 #19 · Client wants to add something to contract - Need a little suggesion here


This is what happens when people actually read contracts instead of just signing them.

I just looked at my T&C and my major client's PO T&C, we are saying the other will indemnify each other...



Nov 18, 2013 at 06:07 PM
Ian Ivey
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p.1 #20 · p.1 #20 · Client wants to add something to contract - Need a little suggesion here


cineski wrote:
Make your contract, and stick to it. In the real world, it's often the people who want you to change who you are for them, who end up being the bad apples in the end.


, a simple change of terms in the contract is not changing who you are. This is what businesspeople call "negotiation." Most of us are one- or two-person studios who can reasonably be expected to negotiate terms directly, not major corporations that have to involve a team of lawyers to modify a boilerplate agreement.

A client who reads and responds to the terms of your agreement is not a "red flag" client, folks.



Nov 18, 2013 at 06:20 PM
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