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Zachary
Zachary, Attorney
Category: Business Law
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Experience:  Internationational Commercial Attorney
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i just had an argument with a client of mine who explained

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i just had an argument with a client of mine who explained they wanted a refund of their money, because they claim to not have misunderstood the contract they signed and wanted to see the final images which i never send because they can be stolen. they were so upset, that they threatened over the phone to assault me and defame my character online. I am an artist and this was for an illustration project. they explained they will call their attorney to get a refund, even though i explained in the contract (which they signed) that the 50% they paid up front is nonrefundable once the samples were submitted to them. I am still not sending them the final images. what is your recommendation? by the way, i sent a notice of termination  of the contract to them via email.

Submitted: 1 year ago.
Category: Business Law
Expert:  Zachary replied 1 year ago.
Hi,

Thanks for your question. Can you answer a few clarification questions for me:

Once they pay you the entire amount, do you give them the final images, or do you always retain the final images?

Also, do they have any say on revising the illustrations requested, or is there any sort of guarantee that they will get exactly what they are asking for when they hired you (in other words, how much artistic discretion do you retain through your contract)?
Customer: replied 1 year ago.

would you like a link to contract?


 

Expert:  Zachary replied 1 year ago.
Sorry for the delay in response. Yes, please.
Customer: replied 1 year ago.

https://dl.dropboxusercontent.com/u/53748863/Attorney%20copy%20-%20Healthy%20Body%202013.pdf


 


I have already generated mock sketches and samples for one leg of the project for which they received and reviewed. The husband threatened to 'knock me out' and 'kick my ass' during our phone conversation because they were upset that they do not get to see the final images until the end of the process, because i am interested in protecting my work and make sure i am paid for it. So for the food section, we were already in post production, i still had to complete the body systems, etc. which i was ready to do, but they felt they should have the OBLIGATION to make an amendment to the contract because they saw fit to review the final images before i move on and thats not what we agreed upon at all.

Expert:  Zachary replied 1 year ago.
You've got a solid contract. Your customer is wrong and you do not have to refund the money. You've delivered the mock sketches to them for approval. They are not entitled to the final product until they pay the other part of the fee agreed to.

If you do not want to continue the relationship, you are entitled under the contract to terminate with them and keep the deposit. So, its up to you in the end. You may want to give them some time and let them consult with their attorney, who will likely tell them that a deal is a deal and they can't come back now and change the terms. They may end up coming back and cooperating with you.

Of course, if you don't want to continue the relationship, you would terminate and do it in writing via email.
Customer: replied 1 year ago.

The way the contract is structured i said that I would offer to send them samples for the body systems and food. I have sent them samples for the food which they saw and approved, and i then sent them an email saying the food was almost complete and for them to send me reference materials for the body systems for me to do. then thats when the client wanted to see the final images, even if it was just 10, i didnt feel comfortable sending them final images until the end of the project. but they got very upset and said that they wanted to see the in progress before moving forward, i wanted to continue but they said they didnt want to do business like that. so then the husband got involved and said that they wanted an amendment and i said 'no' so then he got mad and called alot of names and gave threats which i cant prove because it was during a verbal phone conversation. is there ANYTHING in the contract that an attorney can look at and try to twist? can they go to paypal and request to see the final images and dispute it? because when i sent the samples to her...she sent all of the samples to her girlfriends and friends for them to see. i didnt want the same to be done for my final images, because someone can run off with them, you know? your thoughts?

Expert:  Zachary replied 1 year ago.
The contract says that they cannot get any of the deposit back after the mock sketches are created. Based on what you've stated, you have created the mock sketches.

You are confirming that you have created the mock sketches for the foods.

But what about the body systems, organs, and icon Designs?
Customer: replied 1 year ago.

i did not create mock sketches for the body systems and the icons and organs were a subdivision for the body systems. But the contract just simply says that after mock sketches are created or delivered then the contract is nonrefundable. So thinking objectively it does not say the mock sketches are simply for the project or for the both the body systems AND foods. so that is where i might see a weak link which they may try to exploit, what do you think?

Expert:  Zachary replied 1 year ago.
I think that is correct.

Arguably, if you did not create the mock sketches for the body systems, then they could terminate the contract and demand a refund of the deposit pro rata for the body systems.

You could in turn argue that you began to submit samples, thus there is absolutely no refund due. The contract is silent on what happens when there is only a partial completion of the mock sketches submission. In which case, the court would have to construe the contract. It would be strictly construed against you since you were the drafter, thus there is a good chance that a court would find at least a partial refund would be due.
Customer: replied 1 year ago.

how much would the fees cost for them sue me? the amount that was already paid was 612.00usd. and would you recommend i just refund them half back, so i can avoid going to court? i am not interested in going to court for this.

Expert:  Zachary replied 1 year ago.
The fees for going to court on a small claims case like this are about $20.00 plus the service fees for the summons ($100). So, its not an expensive claim to be.

I would offer them a refund of half of the amount and say that is all they are entitled to under the contract.
Customer: replied 1 year ago.

Do i have to physically appear in court for small claims? or can it be done over mail ?

Expert:  Zachary replied 1 year ago.
No, you have to physically appear. It's like the People's Court/Judge Judy. You will need to file an Answer through the mail, and then wait for notice of the hearing date. Then on that date, you go to court and wait for them to call your name, then you have a short trial before the judge.

Customer: replied 1 year ago.

I've already called paypal and theyve already confirmed that based on my contract that they will issue no refunds to this client. Should i just refund them half of the amount and then send them an email to let them know that half was for the incomplete portion of the project? which id imagine would weaken their position in a court because they were refunded some funds of the money also this may avoid any sort of feisty counteroffers where they want to try to be dictators and get the full amount when they are not entitled to it. I am not sure it would fare well if i sent them an email ASKING if submitting half would be acceptable, because they seemed pretty upset. what do you think?

Expert:  Zachary replied 1 year ago.
Your personal dealings with this client would be far more telling of what you should do here than my opinion. I think either way would be good.

I think because we are not talking about a large amount of money, it wouldn't hurt to do it this way.
Customer: replied 1 year ago.

which way are you recommending? im sorry. i couldnt understand your answer.

Expert:  Zachary replied 1 year ago.
I'm recommending going ahead with the half refund and sending them an email instead of trying to get them to agree to it ahead of time.
Customer: replied 1 year ago.

okay i will do that because i think that would fair based on this, even though i am essentially losing money this way. My mind is too clouded right now to come up with a suitable message or header in the email that would be applicable. any ideas? like...i dont want to say PARTIAL REFUND for your project as the header. That might piss them off before they even read the email. any suggestions for the wording of the header and the short and sweet email?

Expert:  Zachary replied 1 year ago.
I would do the header like: Healthy Body Illustration Contract

Dear _____,

We are writing to confirm that the contract has been terminated pursuant to Section VIII and a partial refund has been made to you for the segments of work for which no mock sketches were produced prior to termination.

Sincerely,
_______
Customer: replied 1 year ago.

I've already sent the termination letter, thats why i was asking your thoughts on how i should word and present the refund email, because i am not sure putting PARTIAL REFUND as the head of the email would be effective. you know? what is your suggestion.


 

Expert:  Zachary replied 1 year ago.
Again, I would say:

Healthy Body Illustration Contract

We are writing to follow up with you regarding the termination of the above-referenced contract. A partial refund has been made to you for the segments of work for which no mock sketches were produced prior to termination.


That's what I would say.
Customer: replied 1 year ago.

Fantastic! thank you i will do this now.

Expert:  Zachary replied 1 year ago.
You're welcome. Please remember to rate my answer positively, as I am not paid for my work with you at all until you do.

Thanks,
ZDN
Zachary, Attorney
Category: Business Law
Satisfied Customers: 3921
Experience: Internationational Commercial Attorney
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