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| Commissioning agreement draft https://www.luthiersforum.com/forum/viewtopic.php?f=10101&t=46602 |
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| Author: | Colin North [ Tue Nov 03, 2015 8:07 am ] |
| Post subject: | Commissioning agreement draft |
Wanted something to kind of make things clear and maybe protect both maker and client. Thought it might be an idea to prevent "You said/I said" scenarios. I know there's not too many lawyers out there, and it wasn't my intention to write a legal document, but I know it would be enforceable in Legally be cause of "intent" But I just wondered if anyone might see any glaring loopholes from experience Thanks to anyone I cribbed from!! Tried to keep it reasonanbly short and simple - What do you think? Quote: "Draft Commission Agreement"
This is a document intended to make clear the basic obligations of the agreement between Client and Maker to build and supply an instrument. I, -------------, agree to supply a guitar built to the underneath specifications sheet (A) as requested by the Client, --------------. The Client undertakes to Pay the sums agreed in the quotation underneath (B) Every hand-crafted product or item including stringed instruments will show evidence of the hands of the craftsman being used throughout the process of creating it. The results that are possible to achieve in a large and automated production shop should not be expected (and are typically not desired when commissioning a custom guitar) to be crafted by an individual Maker. Having seen and played examples of the instruments built by the Maker, the Client has deemed his work as of sufficient quality to commission one himself, and the Maker undertakes to provide an instrument of that at least that quality or better. Any time estimate to complete the build is just that, an estimate, and is subject to change and unforeseen circumstances. In the event that the need or desire to cancel an order should arise, cancellation of a guitar once started will be effective immediately upon notice by the Client to the Maker and will be irreversible. The Maker will acknowledge the cancellation to the customer in writing. The guitar will continue to be built at its original pace. Upon completion, the guitar will be offered for sale and as being available immediately in a manner of the Maker's choice. When the instrument is sold, the customer original deposits will be refunded in with the exception of a processing fee of 25% of the originally quoted total price. Additional fee charges will be withheld from any refund as the result of an order cancellation on a guitar of a personal or highly customized nature and those fees will be determined by the amount of additional work that is required for resale, if possible, by the Maker. Clients purchasing an instrument shall have a three day review period. If you are dissatisfied with your guitar you have three days from the time you received the instrument to contact me. Please contact me before you do anything else. Returns without my authorization will be refused. Client is responsible for the returned instrument until it has been received and inspected by me. Client will pay all shipping costs and be charged for any damages/repairs. Same terms and conditions shall apply as a cancelled order. I understand the guitar will be built according to the attached Specification Sheet. Any changes will possibly result in an increase in the total cost of the guitar. I also understand the conditions of the commissioning a guitar from Colin North and the conditions of cancellation of any order. I understand that all dates are estimates for the completion of both individual steps in the building process and the entire guitars construction. By submitting a 1/3rd deposit with this signed commissioning agreement, I initiate the order to be filled. I understand that the instrument being built will be covered by a 5 year warranty against defects in materials and workmanship by the Maker to the original purchaser of the instrument. I have read and understand the terms of that warranty and the Maker assumes responsibility to honour them as part of this agreement. One third of the of the quoted total price price is due upon the beginning of construction, and the remaining two thirds is to be paid, in addition to any shipping costs and charges upon completion of the instrument by the Maker. Date ----------------- (Signed) Date ----------------- (Signed) |
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| Author: | kencierp [ Tue Nov 03, 2015 9:14 am ] |
| Post subject: | Re: Commissioning agreement draught |
Quote: Every hand-crafted product or item including stringed instruments will show evidence of the hands of the craftsman being used throughout the process of creating it. The results that are possible to achieve in a large and automated production shop should not be expected (and are typically not desired when commissioning a custom guitar) to be crafted by an individual Maker. Having seen and played examples of the instruments built by the Maker, the Client has deemed his work as of sufficient quality to commission one himself, and the Maker undertakes to provide an instrument of that at least that quality or better. I fail to see the purpose of this paragraph -- why create this box? Just my opinion. |
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| Author: | doncaparker [ Tue Nov 03, 2015 9:22 am ] |
| Post subject: | Re: Commissioning agreement draught |
Colin-- I am a lawyer, but it is important for me to say a few things: 1. I am not giving you legal advice, because I am not licensed in your jurisdiction. 2. Whether you intend it to be or not, it is a legal document. It is the written version of the agreement between you and the customer. It is a contract. So make it a good one. 3. I do see some typos. 4. If I were you, I would add more information about what happens if they accept the guitar. In other words, what exactly is your warranty? I would give specific warranty warnings about relative humidity. 5. You really should see a local lawyer about this. |
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| Author: | Colin North [ Tue Nov 03, 2015 10:55 am ] |
| Post subject: | Re: Commissioning agreement draught |
kencierp wrote: Quote: Every hand-crafted product or item including stringed instruments will show evidence of the hands of the craftsman being used throughout the process of creating it. The results that are possible to achieve in a large and automated production shop should not be expected (and are typically not desired when commissioning a custom guitar) to be crafted by an individual Maker. Having seen and played examples of the instruments built by the Maker, the Client has deemed his work as of sufficient quality to commission one himself, and the Maker undertakes to provide an instrument of that at least that quality or better. I fail to see the purpose of this paragraph -- why create this box? Just my opinion. I would have thought that fairly obvious Ken, this is not an instrument produced by computer. And I've heard tales (some on OLF) of customers rejecting commissions sometimes months later, basically because they change their minds - using an excuse like it's asymmetrical by less than 1 mm or something like that |
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| Author: | Hesh [ Tue Nov 03, 2015 11:04 am ] |
| Post subject: | Re: Commissioning agreement draught |
Spec guitars are so much easier to sell......  No one has to jump through their sphincter attempting to disclaim any variance in expectations....It is what it is, take it or leave it! Don remind me to tell you my attorney jokes some time.... I spent my life with attorneys in tow every where I went and they told me lots of very cool jokes! Part of the life of a corporate BD contracts guy for sure.
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| Author: | Colin North [ Tue Nov 03, 2015 11:09 am ] |
| Post subject: | Re: Commissioning agreement draught |
Thanks Don, 1) I understand. 2) I do know it would constitute a contract. (As an accountancy college student I studied Contract Law - handy sometimes) 3) I'll sort out any typos (some of them may be English english spellin') 4) Quote: If I were you, I would add more information about what happens if they accept the guitar. In other words, what exactly is your warranty? I would give specific warranty warnings about relative humidity. Good point Don, I will add something about that to make it clear about instrument care. 5) Distinct possibility - Know any good ones?   - I see Hesh kind of beat me to it!
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| Author: | kencierp [ Tue Nov 03, 2015 11:32 am ] |
| Post subject: | Re: Commissioning agreement draught |
Well Colin --- it is/was not obvious -- its a disclaimer for perceived poor quality work? Never really heard of such a clause. I'll drop out of the conversation -- I would never do another commission anyway, this seems like another reason to avoid them. |
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| Author: | Colin North [ Tue Nov 03, 2015 11:55 am ] |
| Post subject: | Re: Commissioning agreement draught |
kencierp wrote: Well Colin --- it is/was not obvious -- its a disclaimer for perceived poor quality work? Never really heard of such a clause. I'll drop out of the conversation -- I would never do another commission anyway, this seems like another reason to avoid them. Sorry if I've offended you Ken, probably it was only obvious to me having done some research, a lot of it here on the OLF. And no, it's not a disclaimer for perceived poor quality work - that particular piece was prompted by by part of a current OLF member's (professional) contract/agreement he was kind enough to share with us, and, of course, some of the other stories I've read. |
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| Author: | Robert Lak [ Tue Nov 03, 2015 11:55 am ] |
| Post subject: | Re: Commissioning agreement draft |
Colin North wrote: Clients purchasing an instrument shall have a three review period. Assuming you meant "a three day review period." |
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| Author: | Colin North [ Tue Nov 03, 2015 11:58 am ] |
| Post subject: | Re: Commissioning agreement draft |
Robert Lak wrote: Colin North wrote: Clients purchasing an instrument shall have a three review period. Assuming you meant "a three day review period." Sorry!! I'll correct that
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| Author: | DannyV [ Tue Nov 03, 2015 12:18 pm ] |
| Post subject: | Re: Commissioning agreement draught |
kencierp wrote: Quote: Every hand-crafted product or item including stringed instruments will show evidence of the hands of the craftsman being used throughout the process of creating it. The results that are possible to achieve in a large and automated production shop should not be expected (and are typically not desired when commissioning a custom guitar) to be crafted by an individual Maker. Having seen and played examples of the instruments built by the Maker, the Client has deemed his work as of sufficient quality to commission one himself, and the Maker undertakes to provide an instrument of that at least that quality or better. I fail to see the purpose of this paragraph -- why create this box? Just my opinion. I tend to agree with Ken. Maybe if you reworded it but it does sound like a disclaimer for poor workmanship. Personally I don't really like commissions although I have 3 to get going on. If I can't do them on a handshake I don't do them. Do you really want to be dealing with people that require a legal document to build them a guitar? I guess it would depend on your market. I'd want to tack on an extra grand or 2 just for the potential hassles.
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| Author: | RogerC108 [ Tue Nov 03, 2015 1:14 pm ] |
| Post subject: | Re: Commissioning agreement draught |
DannyV wrote: Personally I don't really like commissions although I have 3 to get going on. If I can't do them on a handshake I don't do them. Do you really want to be dealing with people that require a legal document to build them a guitar? I guess it would depend on your market. I'd want to tack on an extra grand or 2 just for the potential hassles. Do you now or have any visions of making guitar building a full-time venture for your sole means of income? |
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| Author: | Alex Kleon [ Tue Nov 03, 2015 1:29 pm ] |
| Post subject: | Re: Commissioning agreement draft |
I think I know what you're getting at, Colin. With prospective clients for custom kitchens, I stress the point that my cabinetry will not look like a Home Depot kitchen, but more like furniture made with real wood. Your guitars won't look like HPL Martins, but real wood, distinctive, and one of a kind. Maybe refine your wording a bit to convey your intent, if I'm reading you correctly. Alex |
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| Author: | doncaparker [ Tue Nov 03, 2015 1:41 pm ] |
| Post subject: | Re: Commissioning agreement draught |
Hesh wrote: Don remind me to tell you my attorney jokes some time.... I spent my life with attorneys in tow every where I went and they told me lots of very cool jokes! Part of the life of a corporate BD contracts guy for sure.Oh, I know plenty of them, but I would love to hear more! One of my more recent favorites is actually a scene from The Bee Movie. At the very end of the movie, the main bee protagonist (Jerry Seinfeld) has opened a law firm to help animals who have been exploited by humans. The bee has been consulting with a cow ("sometimes I feel like a piece of meat!!!"), and says that he is going to hand her case over to an associate in his office, a mosquito (Chris Rock). The cow asks: "He's a lawyer, too?" And the mosquito answers: "Ma'am, I was already a blood sucking parasite. All I needed was a briefcase." Colin-- The only law firm I can recommend in Scotland is a big one, which might not be what you are looking for, but here it is: Maclay Murray and Spens, LLP. They have offices in Edinburgh, Glasgow and Aberdeen. Maybe if they cannot help you, they can point you in the right direction. You can tell them that a lawyer from Spilman Thomas & Battle, PLLC in Charleston, WV, USA gave you their name. Our firms are part of a worldwide referral network called Lex Mundi. |
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| Author: | Colin North [ Tue Nov 03, 2015 1:55 pm ] |
| Post subject: | Re: Commissioning agreement draft |
Quote: The only law firm I can recommend in Scotland is a big one, which might not be what you are looking for, but here it is: Maclay Murray and Spens, LLP. They have offices in Edinburgh, Glasgow and Aberdeen. Maybe if they cannot help you, they can point you in the right direction. You can tell them that a lawyer from Spilman Thomas & Battle, PLLC in Charleston, WV, USA gave you their name. Our firms are part of a worldwide referral network called Lex Mundi. Thanks for the tip Don. I live quite close by Aberdeen actually and may well give them a ring and pop in for advice. |
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| Author: | Colin North [ Tue Nov 03, 2015 1:57 pm ] |
| Post subject: | Re: Commissioning agreement draught |
RogerC108 wrote: DannyV wrote: Personally I don't really like commissions although I have 3 to get going on. If I can't do them on a handshake I don't do them. Do you really want to be dealing with people that require a legal document to build them a guitar? I guess it would depend on your market. I'd want to tack on an extra grand or 2 just for the potential hassles. Do you now or have any visions of making guitar building a full-time venture for your sole means of income? No. |
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| Author: | Colin North [ Tue Nov 03, 2015 2:05 pm ] |
| Post subject: | Re: Commissioning agreement draft |
Quote: Maybe if you reworded it but it does sound like a disclaimer for poor workmanship. Personally I don't really like commissions although I have 3 to get going on. If I can't do them on a handshake I don't do them. Do you really want to be dealing with people that require a legal document to build them a guitar? I guess it would depend on your market. I'd want to tack on an extra grand or 2 just for the potential hassles. The people concerned would do the handshake thing quite happily, having seen and played my guitars, but I felt I should provide something to help protect both them (and myself). Re-word it, possibly. But I think it's a bit early to tack "extra grand or 2 just for the potential hassles."  In this selling guitars, reputation is everything, and the people buying my instruments and are quite active on the circuits up here, with all that implies. |
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| Author: | DannyV [ Tue Nov 03, 2015 2:37 pm ] |
| Post subject: | Re: Commissioning agreement draught |
RogerC108 wrote: DannyV wrote: Personally I don't really like commissions although I have 3 to get going on. If I can't do them on a handshake I don't do them. Do you really want to be dealing with people that require a legal document to build them a guitar? I guess it would depend on your market. I'd want to tack on an extra grand or 2 just for the potential hassles. Do you now or have any visions of making guitar building a full-time venture for your sole means of income? God no!!! I enjoy it too much and besides, I have a family to feed. 
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| Author: | RogerC108 [ Tue Nov 03, 2015 2:56 pm ] |
| Post subject: | Re: Commissioning agreement draught |
Colin North wrote: Do you now or have any visions of making guitar building a full-time venture for your sole means of income? No.[/quote] I was actually directing that do DannyV. But seeing as how you answered in that manner, that does give us a better picture of what kind of documentation you should have. DannyV wrote: RogerC108 wrote: DannyV wrote: Personally I don't really like commissions although I have 3 to get going on. If I can't do them on a handshake I don't do them. Do you really want to be dealing with people that require a legal document to build them a guitar? I guess it would depend on your market. I'd want to tack on an extra grand or 2 just for the potential hassles. Do you now or have any visions of making guitar building a full-time venture for your sole means of income? God no!!! I enjoy it too much and besides, I have a family to feed. See, that's the difference. If you want to turn it into a business, then you have to have some sort of protection. I'm sure I don't have to tell you how litigious our society has become. There's a huge difference between running a business and pursuing a hobby, but with you selling guitars, you've got a business whether or not you run it as a business, and you're still putting yourself at risk. Granted, there's probably not a lot of risk there, but there is some risk. |
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| Author: | Colin North [ Tue Nov 03, 2015 3:28 pm ] |
| Post subject: | Re: Commissioning agreement draught |
RogerC108 wrote: Colin North wrote: Do you now or have any visions of making guitar building a full-time venture for your sole means of income? No. I was actually directing that do DannyV. But seeing as how you answered in that manner, that does give us a better picture of what kind of documentation you should have. DannyV wrote: RogerC108 wrote: DannyV wrote: Personally I don't really like commissions although I have 3 to get going on. If I can't do them on a handshake I don't do them. Do you really want to be dealing with people that require a legal document to build them a guitar? I guess it would depend on your market. I'd want to tack on an extra grand or 2 just for the potential hassles. Do you now or have any visions of making guitar building a full-time venture for your sole means of income? God no!!! I enjoy it too much and besides, I have a family to feed. See, that's the difference. If you want to turn it into a business, then you have to have some sort of protection. I'm sure I don't have to tell you how litigious our society has become. There's a huge difference between running a business and pursuing a hobby, but with you selling guitars, you've got a business whether or not you run it as a business, and you're still putting yourself at risk. Granted, there's probably not a lot of risk there, but there is some risk.[/quote] I agree, and, you said it "you've got a business whether or not you run it as a business, and you're still putting yourself at risk" And I've got a contract whether I write one or not, (certainly in this country) My customers never asked for anything in writing. Really I was originally thinking from the client's point of view, they're handing money over to me without even a receipt, and all they had was basically a business email address and mobile number on my card (I don't put it on because of security, we sometimes get a spate of garden sheds being burgled ) And of course getting a firm price agreed and when monies were to be paid. Officially, I'm running a business anyway. I've got to be registered for tax, liable for council rates, etc. etc. |
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| Author: | doncaparker [ Tue Nov 03, 2015 3:35 pm ] |
| Post subject: | Re: Commissioning agreement draft |
Colin North wrote: I live quite close by Aberdeen I was in your beautiful country for a few weeks in the summer of 2013, right when Andy Murray won Wimbledon. There was a heat wave for those few weeks. Never made it to Aberdeen, but I saw lots of wonderful things everywhere else. If there is a more spectacular view in the world than Glencoe on a sunny day, I have not found it. |
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| Author: | Colin North [ Tue Nov 03, 2015 3:40 pm ] |
| Post subject: | Re: Commissioning agreement draft |
doncaparker wrote: Colin North wrote: I live quite close by Aberdeen I was in your beautiful country for a few weeks in the summer of 2013, right when Andy Murray won Wimbledon. There was a heat wave for those few weeks. Never made it to Aberdeen, but I saw lots of wonderful things everywhere else. If there is a more spectacular view in the world than Glencoe on a sunny day, I have not found it. I must admit you were lucky with the weather, but living here I'm lucky that I can pretty much enjoy it in anything it can chuck at us. Glencoe is one of my favourites, as is the road to Mallaig, and the north west coast, up from Ullapool. And the Islands and ... |
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| Author: | DannyV [ Tue Nov 03, 2015 8:39 pm ] |
| Post subject: | Re: Commissioning agreement draught |
RogerC108 wrote: I'm sure I don't have to tell you how litigious our society has become. Fortunately some parts of the world are less litigious than others. I'm happy to live in one of the lessor. Not sure about Scotland but us, being one of the colonies, we do share some similar values.
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| Author: | rlrhett [ Tue Nov 03, 2015 10:09 pm ] |
| Post subject: | Re: Commissioning agreement draft |
DannyV wrote: If I can't do them on a handshake I don't do them. Do you really want to be dealing with people that require a legal document to build them a guitar? Maybe it's because I am an attorney, but I would say "yes". I assume you are selling for at least $4K or so. Hardly worth your time to build for less. The roofer, the car dealer, the house painter, the guy who paves your driveway, ALL give you some kind of contract to sign dealing with similar sums. I think you disrespect your work if you think it doesn't merit a written agreement. I won't comment on the specifics for the same reason as Don. I'll just add that you write a contract for a third party, not yourself. If all goes well, you will never look at the contract again. You only look at a contract when you are trying to explain to some judge that has no interest in you, what you do, or what you hoped would happen, that he should step in and force someone to pay you money. The clearer and simpler that the contract can explain that, the better. Sent from my iPhone using Tapatalk |
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| Author: | DannyV [ Wed Nov 04, 2015 12:04 am ] |
| Post subject: | Re: Commissioning agreement draft |
rirhett I can appreciate how you feel being a lawyer. Seriously though the world does not have to revolve around a legal agreement. In my world it's called integrity. I pride myself in having it and rarely find myself dealing with people that don't have it. Life is too short to deal with people that don't have integrity. If you can't do it on a handshake, there is no trust. Would you deal with someone you don't trust? I suppose that is on of the many benefits of living in a community of only 15K. Dirtbags don't last here and if they do you know who they are. But it extends further than that. I sold a guitar into our provincial capitol a couple weeks ago to a person I barely knew. No bill of sale, no written warranty agreement but she knows she's looked after. I did tell her the lifetime warranty was mine or hers. Transaction ended in a handshake AND a hug. OMG. Probably sounds flakey to you. Well it is British Columbia man. haha All of the trades you've mentioned. Verbal agreements. Car dealers always want them. Several real estate transactions. Handshakes. Realtors have never been for me and sorry but I only use notaries. Selling a handbuilt instrument to someone is a very personal experience. I have a hard time picturing a situation where in such an intimate transaction one would need litigation. Sorry dude. Not really sure how things are in the US but you rarely hear "I'll sue" in Canada. Disclamer: this has no bearing on website deals or 3rd party transactions. Although some of my 3rd party transactions have resulted in good friendships. And I guess if it comes down to it, am a commercial fisherman and body disposal is never a problem.  did I just say that. haha
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