Contract Wording...i've Asked This Before But...

Business By jenmat Updated 14 Jan 2015 , 12:48pm by petitecat

jenmat Posted 13 Jan 2015 , 7:39pm
post #1 of 19

I'm amending my contract in off season and before this weekend's show. My wording used to include the fact that I will refund all monies if the below issues happen. But I have always felt that this was way too harsh on me- if the venue burns down, how is that on me? 

So I changed the wording (see underlined part). I know it's vague, but I'm kind of liking the vagueness. Implying that we will discuss it after the event and agree on a refund if one is due. 

Thoughts? Really REALLY appreciate if any wordsmiths can give me advice or share with me their fulfillment section. Thanks!

 

Fulfillment of Contract    

Cakescapes shall not be held liable for any unforeseeable delay or inability to deliver and its obligation to perform will be modified to the extent necessary based on: accidents; natural disasters; unforeseen transportation problems the day of delivery; inclement weather that prohibits travel; illness, hospitalization, or death in the immediate family; delays in delivery of supplies; an act of God; or any other circumstances or causes beyond Cakescapes control that affect performance as contracted. Refunds will be assessed based on circumstances involved. Every effort will be made to provide the cake as contracted in as timely manner as possible.

If, for any reason other than nonpayment or cancellation by the Client, Cakescapes of its own accord cancels the contract, all payments, including the non-refundable retainer fee, will be refunded in full.

18 replies
-K8memphis Posted 13 Jan 2015 , 7:56pm
post #2 of 19

here's a bigger font -- 

 

Quote:

Fulfillment of Contract    

Cakescapes shall not be held liable for any unforeseeable delay or inability to deliver and its obligation to perform will be modified to the extent necessary based on: accidents; natural disasters; unforeseen transportation problems the day of delivery; inclement weather that prohibits travel; illness, hospitalization, or death in the immediate family; delays in delivery of supplies; an act of God; or any other circumstances or causes beyond Cakescapes control that affect performance as contracted. Refunds will be assessed based on circumstances involved. Every effort will be made to provide the cake as contracted in as timely manner as possible.

If, for any reason other than nonpayment or cancellation by the Client, Cakescapes of its own accord cancels the contract, all payments, including the non-refundable retainer fee, will be refunded in full.

 

 

idk i'd not put any of that on an order myself -- because this:

 

Quote:
"Refunds will be assessed based on circumstances involved. Every effort will be made to provide the cake as contracted in as timely manner as possible." 

is what's gonna happen anyhow -- that is what i would emphasize -- i'm gonna get this done for you come hell or high water and if the water is too high we'll talk and i'll make it right -- done

costumeczar Posted 13 Jan 2015 , 8:00pm
post #3 of 19

This is my section...My attorney said this was worded fine. She added the terrorism reference, I didn't!

 

If A Cake To Remember cannot perform this agreement due to a fire, casualty, strike or other civil disturbances, Acts of God, including but not limited to, road closures, severe traffic, fire, terrorism or other causes beyond the control of the parties, or due to the baker's illness, then A Cake To Remember shall return any money paid by the client, less expenses, but shall have no further liability with respect to this agreement.  In the event A Cake To Remember fails to perform for any other reason,  A Cake To Remember shall not be liable for any amount in excess of the money the client has paid.  In the event of personal emergencies that prevent A Cake To Remember from doing the delivery and setup, A Cake To Remember will attempt to make arrangements with alternate cake providers to do the work, and will provide refunds to the client in proportion to the amount of work A Cake To Remember was not able to do. In the event that any of the above conditions prevents A Cake To Remember from delivering a completed cake, no refunds will be issued, but the client will be given the option of picking the cake up the day of, or within one day of, the originally scheduled event.

leah_s Posted 13 Jan 2015 , 8:12pm
post #4 of 19

I'm only in my third semester of Paralegal studies, and I'm NOT giving legal advice, but I can offer the opinion that vague is NEVER desirable.

jenmat Posted 13 Jan 2015 , 8:12pm
post #5 of 19

Ooh, I like the last part about the cake already being completed. 

 

I just have had a problem with the full refund thing if the circumstance was caused by something out of my hands completely. I'd like to handle it case-by-case. A tree falls on the bakery- that's a full refund. Venue burns down or something, then no refund by me- that would be the venue insurance. 

I'm being too nit-picky, am I not? Lol. 

 

K8- I like the idea of shortening it. Maybe I will do that. Back to editing....

 

 

Any other thoughts? 

jenmat Posted 13 Jan 2015 , 8:15pm
post #6 of 19

Quote:

Originally Posted by leah_s 
 

I'm only in my third semester of Paralegal studies, and I'm NOT giving legal advice, but I can offer the opinion that vague is NEVER desirable.

I hear that. I do. But I have been told several times that my original wording accepted all responsibility and was way too one sided:

 

Cakescapes shall not be held liable for any unforeseeable delay or inability to deliver and its obligation to perform will be modified to the extent necessary based on: accidents; natural disasters; unforeseen transportation problems the day of delivery; inclement weather that prohibits travel; illness, hospitalization, or death in the immediate family; delays in delivery of supplies; an act of God; or any other circumstances or causes beyond Cakescapes control that affect performance as contracted.

If Cakescapes cannot perform as contracted due to the aforementioned conditions all payments, including the non-refundable retainer fee, will be refunded in full.

If, for any reason other than nonpayment or cancellation by the Client, Cakescapes of its own accord cancels the contract, all payments, including the non-refundable retainer fee, will be refunded in full.

 
Any way to tweak it? Or just leave it and pray for no need of it? I guess one disaster isn't going to throw me into debt, it's just the brides I have seen lately scare me!
johnson6ofus Posted 13 Jan 2015 , 8:16pm
post #7 of 19
Quote:
Originally Posted by jenmat 
 

 I know it's vague, but I'm kind of liking the vagueness. Implying that we will discuss it after the event and agree on a refund if one is due. 

 

Vagueness is NOT your friend in a contract. You are leaving it up to you and the client to "agree". That's really not the way to write a contract. I also believe, legally (but not an attorney) that as the writer of the contract, the advantage of vagueness goes to the client. That is, you wrote the contract, and you had the opportunity to be clear on the details. Bride, "But I thought if we discussed it, and you saw how sad I was (after spending all my money in the honeymoon casino) that I would get a full refund... blah, blah, blah..."

 

Costumeczar has it perfectly worded! If she cannot perform, she issues a refund. Period. No mention of anyone else being unable to perform--- venue burns down, bride gets cold feet, mother-in-law gets sick, etc. Her A$$ets are fully covered. :)   

 

Write the contract for the worse possible scenario with the worst possible client. If you then CHOOSE to do something less "mean", or "by the book", you can sign a new contract stipulating the new terms. But then it is 100% baker's choice, and not bridezilla choice (on how to amend/ proceed). 

jenmat Posted 13 Jan 2015 , 8:20pm
post #8 of 19

Quote:

Originally Posted by johnson6ofus 
 

Vagueness is NOT your friend in a contract. You are leaving it up to you and the client to "agree". That's really not the way to write a contract. I also believe, legally (but not an attorney) that as the writer of the contract, the advantage of vagueness goes to the client. That is, you wrote the contract, and you had the opportunity to be clear on the details. Bride, "But I thought if we discussed it, and you saw how sad I was (after spending all my money in the honeymoon casino) that I would get a full refund... blah, blah, blah..."

 

Costumeczar has it perfectly worded! If she cannot perform, she issues a refund. Period. No mention of anyone else being unable to perform--- venue burns down, bride gets cold feet, mother-in-law gets sick, etc. Her A$$ets are fully covered. :)   

 

Write the contract for the worse possible scenario with the worst possible client. If you then CHOOSE to do something less "mean", or "by the book", you can sign a new contract stipulating the new terms. But then it is 100% baker's choice, and not bridezilla choice (on how to amend/ proceed). 

Ok, I appreciate that feedback. I should know this, and I try to CMA at all times, but I've been on the fence about this section for a few years. And like you said, the worst possible client scenario...I haven't had very many of those because I have very good radar. But eventually someone is going to get through the filter and then I want to be covered. Will amend. 

johnson6ofus Posted 13 Jan 2015 , 8:24pm
post #9 of 19
Quote:

Originally Posted by jenmat 

 

 

I just have had a problem with the full refund thing if the circumstance was caused by something out of my hands completely. 

Can you explain a scenario where you would get "shafted" by that? I don't understand? Maybe?

 

In other words, if YOU cannot make the cake, you give a refund. A disaster is only a disaster if YOU cannot perform. The first line of costumeczar post is "If A Cake To Remember cannot perform this agreement due to..."

 

So, if there is an earthquake (disaster), and you are fine, and you make the cake, and you deliver the cake---- you are paid and have fulfilled the contract. If in that SAME earthquake, the venue burns down, and you show up with the cake, you still fulfilled and still get paid. 

 

It does NOT mean that if there is any sort of "disaster" you have to give a refund. You only have to give a refund if that disaster prevented YOU from making the cake. 

johnson6ofus Posted 13 Jan 2015 , 8:27pm
post #10 of 19

BTW jenmat, seen lots of your awesome cakes. I would hate for you to be left unpaid for all the hard work. My stance is aggressive, I know... but great work deserves fair compensation. So pardon me, if any tone came off offensive. 

jenmat Posted 13 Jan 2015 , 8:37pm
post #11 of 19

Quote:

Originally Posted by johnson6ofus 
 

BTW jenmat, seen lots of your awesome cakes. I would hate for you to be left unpaid for all the hard work. My stance is aggressive, I know... but great work deserves fair compensation. So pardon me, if any tone came off offensive. 

I am NOT offended in the slightest. I am a businesswoman and I have a thicker skin than that! I asked for thoughts and feedback and I appreciate ALL OF IT. No sugar coating needed, the harsher the better! 

 

And THANK YOU! both for your opinion and feedback on my work! 

 

My scenario based on the wording in my original contract seems to say that if a tornado hit near the venue and I couldn't deliver the cake to the venue, then I should have to refund their money. Even if like you say the cake was done as contracted. Part of my contract is delivery and setup. If I make the cake but am held back from delivery and setup of the contracted cake, then I have not fulfilled my contract, correct? According to my original wording. 

I know I am splitting hairs here, but this is how I get when I start delving into things I should be paying a lawyer for!

 

Thank you all again for the time giving feedback!

johnson6ofus Posted 13 Jan 2015 , 9:52pm
post #12 of 19
Quote:
Originally Posted by jenmat 
 

 

My scenario based on the wording in my original contract seems to say that if a tornado hit near the venue and I couldn't deliver the cake to the venue, then I should have to refund their money. (this is good/fair, right?) Even if like you say the cake was done as contracted. Part of my contract is delivery and setup. If I make the cake but am held back from delivery and setup of the contracted cake, then I have not fulfilled my contract, correct? (right, and you owe a refund, because they got no cake) According to my original wording. 

 

Remember costumeczar's wording says it too--- because correctly, yes, delivery is part of it. If you cannot deliver because you couldn't get there, or you couldn't even make the cake (power failure), either case- you owe a refund. I don't think that wording is bad. You bake cake, you deliver cake, you are entitled to be 100% paid- regardless of how the disaster affects the actual ceremony/ venue/ bride/ etc. Both contracts work for this, but I love the wording "including but not limited to". So you write "Circumstances beyond the control of the baker, including but not limited to: illness, natural disaster, etc...

 

 

The scary part is:

Refunds will be assessed based on circumstances involved. 

(This opens up a sob story scenario--- yours, or theirs...IMHO)

 

Second, I LOVE the part in costumeczar's about only being liable for the amount paid, with no further remedy. I think that part is also worth it's weight in gold and should be in EVERY contract. 

 

Good for you for having "big girl panties" and running a business!

bubs1stbirthday Posted 13 Jan 2015 , 10:34pm
post #13 of 19

Quote:

Originally Posted by jenmat 

 

Fulfillment of Contract    

Cakescapes shall not be held liable for any unforeseeable delay or inability to deliver and its obligation to perform will be modified to the extent necessary based on: accidents; natural disasters; unforeseen transportation problems the day of delivery; inclement weather that prohibits travel; illness, hospitalization, or death in the immediate family; delays in delivery of supplies; an act of God; or any other circumstances or causes beyond Cakescapes control that affect performance as contracted.

 

Refunds will be assessed based on circumstances involved. Every effort will be made to provide the cake as contracted in as timely manner as possible.

 

We have a completely different business (welding /outdoor furniture/ alloy fire units etc - my husband is a welder/engineer) but we make sure to make it clear in our warranties that any and all repairs/replacements or refunds will be at our discretion and that our say is final in determining which of these is to be implemented. I would suggest that you include a similar clause in your contract regarding refunds.

 

I would also agree that ambiguity will not benefit you in the long run as if the customer can show that they could reasonably have taken part of the contract in a different way to how you meant it then this may benefit them and not you when the contract is meant to protect your business not so much the customer.

costumeczar Posted 14 Jan 2015 , 1:45am
post #14 of 19

I'll add that the reason my contract includes the parts about delivery and this that and the other is that I've personally experienced situations where natural disasters affected delivery. I had to deliver a cake after a hurricane and the venue had no power and a giant tree had come LITERALLY about 6" from crushing the main house. I would have shown up with the cake regardless of whether the venue was there or not and it would have been the bride's responsibility to arrange for alternate plans. If I hadn't been able to get to the venue because of downed trees in the road (and I had trouble delivering it on the way because of that too) the bride would have had the option of picking it up herself based on the contract but if I can't get there I'm covered.  Here's the photo, notice the name of it and the tree in the background! https://www.flickr.com/photos/acaketoremember/4511483637/

 

I also had one wedding where the roads leading to a remote historic  house on the river were washed out all around, and I ended up floating my car through multiple washed-out roads to get there. If I had to turn around (and that was a real possibility, I got really lucky to have someone nice enough to let me follow them as I drove an alternate route there) the contract would have covered me. So don't think it can't happen, because it happened to me twice that I can think of off the top of my head.

jenmat Posted 14 Jan 2015 , 3:07am
post #15 of 19

Quote:

Originally Posted by costumeczar 
 

I'll add that the reason my contract includes the parts about delivery and this that and the other is that I've personally experienced situations where natural disasters affected delivery. I had to deliver a cake after a hurricane and the venue had no power and a giant tree had come LITERALLY about 6" from crushing the main house. I would have shown up with the cake regardless of whether the venue was there or not and it would have been the bride's responsibility to arrange for alternate plans. If I hadn't been able to get to the venue because of downed trees in the road (and I had trouble delivering it on the way because of that too) the bride would have had the option of picking it up herself based on the contract but if I can't get there I'm covered.  Here's the photo, notice the name of it and the tree in the background! https://www.flickr.com/photos/acaketoremember/4511483637/

 

I also had one wedding where the roads leading to a remote historic  house on the river were washed out all around, and I ended up floating my car through multiple washed-out roads to get there. If I had to turn around (and that was a real possibility, I got really lucky to have someone nice enough to let me follow them as I drove an alternate route there) the contract would have covered me. So don't think it can't happen, because it happened to me twice that I can think of off the top of my head.

Can't imagine floating a car!!! We had a tornado go through our backyard 2 years ago. Literally our backyard. Took out our treehouse and part of the woods behind us. Power too. Luckily it was a Tuesday and we ran and bought a small generator for the fridges. Power company was my hero when they got the power on by 3pm later that day. Our dream is to have a wired generator in the house, but man not sure if that will ever happen. I have backup plans galore if something happens on MY end. But not if something happens in THEIR direction, like you've experienced. 

 

Have you ever had anyone squawk that they would not get a refund but have to come and pick it up? (meaning when they sign the contract) We live in the boonies and I could see a bride throwing a fit because someone would potentially have to drive 45 minutes on the wedding day to come get a cake. But then again if there is a major disaster, she'd probably not come and get the cake anyway....

petitecat Posted 14 Jan 2015 , 9:11am
post #16 of 19

Quote:

Originally Posted by costumeczar 
 

This is my section...My attorney said this was worded fine. She added the terrorism reference, I didn't!

 

If A Cake To Remember cannot perform this agreement due to a fire, casualty, strike or other civil disturbances, Acts of God, including but not limited to, road closures, severe traffic, fire, terrorism or other causes beyond the control of the parties, or due to the baker's illness, then A Cake To Remember shall return any money paid by the client, less expenses, but shall have no further liability with respect to this agreement.  In the event A Cake To Remember fails to perform for any other reason,  A Cake To Remember shall not be liable for any amount in excess of the money the client has paid.  In the event of personal emergencies that prevent A Cake To Remember from doing the delivery and setup, A Cake To Remember will attempt to make arrangements with alternate cake providers to do the work, and will provide refunds to the client in proportion to the amount of work A Cake To Remember was not able to do. In the event that any of the above conditions prevents A Cake To Remember from delivering a completed cake, no refunds will be issued, but the client will be given the option of picking the cake up the day of, or within one day of, the originally scheduled event.

 

Do I take 'expenses' to mean anything and everything to do with making the cake- supplies bought, any flowers already completed, any dummy cakes covered, any cakes already baked. I'm guessing any labour costs isn't included, as that's not really expenses is it? Or is it? 

costumeczar Posted 14 Jan 2015 , 11:49am
post #17 of 19

A

Original message sent by petitecat

Do I take 'expenses' to mean anything and everything to do with making the cake- supplies bought, any flowers already completed, any dummy cakes covered, any cakes already baked. I'm guessing any labour costs isn't included, as that's not really expenses is it? Or is it? 

If I couldn't make the cake at all that would apply, so I would figure it out based on cost of things i'd bought for the cake plus a fee for my time up to that point. If the cake wasn't baked or decorated at all the cost to me wouldn't be the same since there wouldn't be the cost of that work, so they'd be getting a partial refund but I would charge them for work I'd done on flowers etc.

If i actually made the cake then couldn't deliver it the cost would be my full cost including all the fees for my work, which for me as a single proprietor LLC is basically the full cost of the cake (I don't have payroll, the IRS sees any money I make as income). So that's covered in the "you can come pick it up yourself" clause.

costumeczar Posted 14 Jan 2015 , 11:58am
post #18 of 19

A

Original message sent by jenmat

Can't imagine floating a car!!

Have you ever had anyone squawk that they would not get a refund but have to come and pick it up? (meaning when they sign the contract) We live in the boonies and I could see a bride throwing a fit because someone would potentially have to drive 45 minutes on the wedding day to come get a cake. But then again if there is a major disaster, she'd probably not come and get the cake anyway....

Floating the car was not fun. I had been driving around flooded roads and throuh standing water for an hour and I was at a point where I could see the house, but the entire road was covered in a pond that wasn't usually there. I had been there before so I knew where the road was supposed to be so I just went for it and I could feel the car lift off the road and slow down, but I made it. At that point I wasn't going to turn around and leave, I was going to deliver that %#*$& cake.

The only time I've ever had anyone question my contract was when one guy had tried to barter the price down for a while, then when I wouldn't he came back with "okay, we'll hire you but we want you to take out the clause about if we want to sue you we have to go through mediation instead of the court." i told him go take a hike. If someone wants you to basically say they can sue you before they even hire you they're not a good bet as a customer. I'm a BBB member because they provide mediation services, and I put that into my contract along with the clause about me not having to ever pay more than the cost of the cake to limit damages if someone did go crazy and try to sue me. My attorney said they could still take me to court, but with that in the contract the judge would probably have to dismiss the case because they had agreed to do mediation instead and they would be violating the terms of the contract.

Nothing's ging to stop someone from suing you if they want to, but you can throw some stuff in there to slow the process down, so to speak.

petitecat Posted 14 Jan 2015 , 12:48pm
post #19 of 19

Quote:

Originally Posted by costumeczar 


If I couldn't make the cake at all that would apply, so I would figure it out based on cost of things i'd bought for the cake plus a fee for my time up to that point. If the cake wasn't baked or decorated at all the cost to me wouldn't be the same since there wouldn't be the cost of that work, so they'd be getting a partial refund but I would charge them for work I'd done on flowers etc.

If i actually made the cake then couldn't deliver it the cost would be my full cost including all the fees for my work, which for me as a single proprietor LLC is basically the full cost of the cake (I don't have payroll, the IRS sees any money I make as income). So that's covered in the "you can come pick it up yourself" clause.

 

That makes sense. Thanks for clarifying!

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