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Contract: Unforeseen, AOG, Illness, Ect? Provide for Refund?

Poll Results: Your Liability for "Unforeseen Circumstances" Clause provide for refund

 
  • 0% (0)
    Acts of God, unforeseens, accidents = No refund
  • 12% (1)
    AOG, et al = depends on completion of cake for amount of refund
  • 62% (5)
    Any Non-Delivery will get Full Refund
  • 25% (2)
    other, (with kindness to explain below)
8 Total Votes  
post #1 of 18
6/12/12 at 10:00pm
Thread Starter 
If you have a clause in your contract for not being held liable for delay or non-delivery of the contracted cake based on unforeseen circumstances, acts of god, illness/death of immediate family, labor issues and strikes, supplier failure, etc. do you leave it at that, or do you state that there will be some refund of paid money if contracted cake is not provided.

I have seen it so many ways:
. a strict no liability if it isn't the bakery's fault the cake isn't delivered
. a difference if the unforeseen event happened before the cake was made (then a refund was allowed) or if the unforeseen event happened after the cake was made (no refund)
. a statement like above, but with an addition that if contracted cake isn't delivered, then there will be a refund of no more than the price of the cake. (does this imply that in some cases brides will go after the baker for *more* than the price of the cake in liability responsibility if a cake is not delivered? Say pain and suffering for not having her contracted wedding cake at the reception?)

Reason I bring this up is that i had the basic clause as stated at the top of the post but no mention of refunds based on uncontrollable circumstances. I got this well, analytical response from a groom tonight:
Quote:
Quote:

. One of the items listed is "accidents"; this item seems vague and is unclear what is being referred to. What is meant by accidents? Are you referring to car accidents or accidents such as dropping the cake?
. You mention "labor troubles, disputes, or strikes." I was unaware that your business has any employees besides yourself; what exactly is this referring to?
. You mention "delays in deliveries of supplies" and "non-performance of suppliers." I don't understand why should I the customer should be responsible for your internal business decisions such as which suppliers or shipping companies to use; could you please elaborate on this?
. You mention "illness, hospitalization, or death in the immediate family." I don't understand why should I the customer should be responsible for events in your personal life; could you please elaborate on this?
. I am not sure that I would be willing to sign this without a line amended to this item that stated in the event that a cake was not delivered as originally agreed that a full refund would be provided. Would you be willing to add this to the Wedding Cake Terms and Conditions?



First of all, I didn't care for the couple and RED flags went up half staff (but I blamed it on underdeveloped social skills and that he was wearing his own 'red shirt' star trek uniform to get married in). And while I find his confrontational questioning off-putting, I do see his points on some level.

I am debating "elaborating" on his points back to him, or just stating that their wedding date has already been booked and writing the order off. While I do think that I personally would offer a refund in many circumstances, i don't want to change my contract on the pressuring of a rude groom. Ethically, I think if I have made the cake and something is preventing me from delivering it, say a swat team has blocked off my block and I can't get to the bakery, or the washes flooded and I can't navigate the roads, then that truly isn't my fault and that is where the couple's 'wedding insurance' kicks in. But if my child has just died (and thanks for the compassion there, buddy, for issues in my personal life not being your concern) and I am not able to make the cake then i would think a refund is in order.

I also like the idea of calling out a refund based on the price paid and no more. I guess that is some level of protection for the customer and non-delivery. Has a couple ever gone after MORE than the price paid for the cake if they weren't satisfied with it or did not receive it based on unforeseens?

As far as this couple goes, I didn't click with them and wonder if I should do the evasive "i've booked that day" (the tasting was a month ago, though the wedding is 8 months away), or explain to them that working with an artist for a service has a different set of rules and considerations than purchasing an electronics item, unpacking it from the box and expecting the product to be just as the other 500K items it was factory produced alongside. And the unprofessional side of me would like to add that "one of the benefits of being a commissioned baker and designer is that I have the opportunity to choose what projects I take on based on the design and my rapport with my potential clients. Based on this, I do not feel that I am a good fit for your wedding."

So I made a poll, but I would also like to hear your input and reasoning--or better yet real life experiences on the liability clauses in your contracts.

THank you so much!
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post #2 of 18
6/13/12 at 8:54am
I guess I fall into "other"

I have a section that discusses unforeseen circumstances/acts of god... It says that it will be determined on a case by case basis...
There is also a section mentioned about non payment cancellations and such...
But I also mention issues related to outdoor set ups and non-cake related items being on the cake...
And there is a section on limited liability with regards to delivery, AOG, etc...
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post #3 of 18
6/13/12 at 10:05am
Is the groom a lawyer? My husband was leaving the legal field when we were wedding planning and this was one of the tasks he was given - read and understand all contracts. We didn't work with a handful of vendors because their contracts were so vague he didn't want to risk anything.
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post #4 of 18
6/13/12 at 10:58am
Thread Starter 
I *have not* responded to him yet, because I know that i tend to get a bit wordy and emotionally invested in things. I have actually been working through his point of view and my own interests. He brings up valid, consumer-based concerns. My husband pretty says that this guy has his mind made up and trying to explain my points to him would be a lost cause. And since i'm not going to amend the contract to his request, it's a moot point anyway. (though moving forward, I do plan on expanding that section to cover scenarios of partial and full refund based on things like late delivery due to uncontrollable situations, or provision of alternate cake should original cake be a full loss due to damage, and even full refund of purchase price for case of non-delivery)

Soooo, if I were inclined to try to 'educate' him as to why the contract is the way it is, this is what i would say.

Quote:
Quote:

Dear Groom,

Thank you for so thoroughly reading my contract and taking the time to comment. Because contracting a wedding cake baker is contracting a service with a final product and not simply purchasing a consumer product, there are different circumstances to consider. My contract takes into account those worst case scenarios and address things that other bakeries and small businesses have been held liable for that are out of their control. Because it would be impossible to list each and every contingency regarding the delivery of a contracted cake, this contract protects me to make adjustments and changes in direction if a disaster alters the original plan.

For example:

If the building where my bakery lies is blocked off by a SWAT team and I cannot access your completed cake to be delivered before the reception start time, would you prefer a refund check or do I go into crisis management mode and provide you with a similarly decorated faux cake and sheet cakes to serve your guests?

If there is a massive salmonella outbreak and all the eggs in southern Arizona are recalled, do you want a refund, or do I have the freedom to change the flavor to a moist and delicious vegan cake that requires no eggs?

If when delivering the cake, a rambunctious flower girl runs into me causing the cake to drop. Do you want a refund check, or should I do my best to salvage the cake and then provide additional fresh cakes to be served to the guests?

These are just a few circumstances where the service of the baker is what you are paying for. Not just receiving a product as contracted.

Knowing that a couples wedding day is going to be one of the most memorable and expensive days of their lives, it is my guarantee that I will do everything in my power to provide the designed cake, and if anything comes between that end I will do everything in my power to make the best of the situation to save the tradition of a wedding cake and the serving of cake to guests.

Depending on the special circumstances (did the cake arrive altered because a car accident knocked the top tier off, but it was able to be fixed and presented? or Did something personal like a death of my child prevent me from completing the cake at all?), there will be a partial to full refund at my discretion. And this would not be because it was in my contract, but because that is ethical customer service. I believe it would require an inferior level of customer service to tie myself into a hard and fast contract that mandates a full refund if the exact order is not executed as written. Life is unpredictable and things happen-- I trust that my clients would rather have a solution to the situation instead of a refund check just days or hours before cutting the cake.

Working with a commissioned designer does require a level of mutual trust. I know that I am not alone in having contracts to protect my business interests from unforeseen and uncontrollable impacts. Because of this, there are several wedding insurance products available that protect the financial investment of a wedding in cases of weather, illness, military deployment and vendor non delivery (some policies even provide funds to pay for the reenactment of key wedding photos should the digital and hard copies of the photographs be destroyed).

I hope you have a better understanding of the reasoning behind my contract. As I am not willing to amend my contract in the way you have requested, I wish you well in seeking another wedding cake designer for your special day.

All the best,



ahhh... the joys of a vicarious response to a customer icon_rolleyes.gif
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post #5 of 18
6/13/12 at 12:06pm
I view us as "self-insured". It's not like the client can just pick up and grab the exact same cake, day of, from the local quick mart, if we don't deliver. And, what you, or they, could grab quickly would not be comparable to what they ordered or paid for.

So, I see a full refund as absolutely necessary if the cake they ordered from you is not delivered--for whatever reason. If the cake is delivered and there are other issues with it, then it's a case by case issue.

I think, although he may be a bit "odd", that his questions are valid. I wouldn't sign the contract, as written, either.

To some degree, in every instance mentioned (accidents"; "labor troubles, disputes, or strikes"; "delays in deliveries of supplies"; "non-performance of suppliers"; and, "hospitalization, or death in the immediate family."), it would be up to you to mitigate the circumstance and find a way to get that cake done & delivered--and when you couldn't do that, YOU would have to refund their money.

In my personal view, ONLY in the event of hospitalization or death (of you or an immediate family member) would the client be expected to be somewhat understanding--and then the option of REFUSING refund would be completely up to them.

I think that these clauses are boiler plate and don't really apply to the type of business that we do. In a court of law, because you are the creator of the document, the burden would be on you to show how you tried to mitigate the problems before not providing the cake. I don't see you winning ANY of them, except--perhaps--your own illness or death--and even then, your estate/business could still be held liable to make the refund.

There are exceptions to every rule. If the lack of delivery is the direct result of something that the client DID--wrong date given, wrong address given, etc.--then of course, no refunds.

In some cases, like an accident on the way to the venue (stop & get that insurance info!), then you give the refund, include the cake in the insurance claim, and then, sadly, probably sue (if you choose to) to get the money from the other driver.

Proper business insurance might also help in many of these scenarios. I don't have that type of insurance and don't know who or how it would be underwritten.

No insurance company likes to pay out, but in our business, I think non-delivery of the cake is a refund no-brainer.

JMHO
Rae
I love you, but your emergency is not my crisis!

They say that a little knowledge is a dangerous thing, but it is not one half so bad as a lot of ignorance.--Terry Pratchett (b.194
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I love you, but your emergency is not my crisis!

They say that a little knowledge is a dangerous thing, but it is not one half so bad as a lot of ignorance.--Terry Pratchett (b.194
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post #6 of 18
6/13/12 at 12:45pm
I agree that the groom's request makes sense, and if I were you I would amend the contract with a full refund clause. Of course if you're not comfortable doing so, you could explain your reasoning for the existing terms, and potentially offer to strike some of the terms that you should be able to easily mitigate (labor disputes, supplier delays) as a compromise.

I definitely wouldn't immediately reject the customer, they may even be willing to agree to the original contract once you explain why the terms are there.

Quote:
Originally Posted by BlakesCakes

In some cases, like an accident on the way to the venue (stop & get that insurance info!), then you give the refund, include the cake in the insurance claim, and then, sadly, probably sue (if you choose to) to get the money from the other driver.


Make sure you have commercial auto coverage if this happens, since if you only have a personal auto policy they can deny your claim if they find out you were using the car for business.
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post #7 of 18
6/13/12 at 2:50pm
Thread Starter 
I truly thank you for your input on this. My head really is all over the place on this. I did use a boiler plate CMA clause for that part, knowing that if I didn't deliver, then I would refund...but not having good wording for it. This guy caught me on it, so kudos to him i guess. (still doesn't mean that i want to work with them)

At the root of it, I want to express that there will be a full refund if there is non-delivery of a cake, but in the case of uncontrollable damage or delay that I am permitted to make adjustments and can seek a solution to fix the situation (say I get in a car accident and am late delivering the cake, but they do get a cake by cake cutting time. then that wouldn't be grounds for a full refund, though there might be compensation.) I'd also want to add that if changes to the originally contracted cake are to be made, then the client would have opportunity to approve those changes and any adjustments in price.

time to start writing. ...
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post #8 of 18
6/13/12 at 3:01pm
I would view it as my moral obligation to deliver a cake. I won't make my problems your problems, no excuses, full refund with appropriate apologies. I think the contract should only protect me if they decide to sue me in small claims court for other things such as emotional distress of not having a cake at their wedding. Sometimes you take a loss, it's part of doing business and part of life.
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post #9 of 18
6/13/12 at 3:11pm
Quote:
Originally Posted by lorieleann


At the root of it, I want to express that there will be a full refund if there is non-delivery of a cake, but in the case of uncontrollable damage or delay that I am permitted to make adjustments and can seek a solution to fix the situation (say I get in a car accident and am late delivering the cake, but they do get a cake by cake cutting time. then that wouldn't be grounds for a full refund, though there might be compensation.) I'd also want to add that if changes to the originally contracted cake are to be made, then the client would have opportunity to approve those changes and any adjustments in price.



Glad you found it somewhat helpful.

I don't know that I'd get into the corner of being "permitted to make adjustments and can seek a solution to fix the situation". Those are sort of givens, but once written, it could lead to problems in interpretation and execution.

As for the accident scenario, sorry, but if they don't get the EXACT cake that they contracted for--even if you provide ANYthing for them to cut & serve--that is the COST of being self insured and they still deserve a full refund. It would be at their discretion to say, "Well, at least let us pay you for what you provided as a replacement."

In my own instance--and NO, thank God, this HAS NOT happened: I can't deliver the 4 tier wedding cake. Closest bakery that has 2 tiered stacked cakes on hand is 5 miles away and considered high end. The cake would cost me more than what I charged them, but they'd have a decent looking cake for cutting & photos. Meanwhile, DH runs to Costco and picks up blank sheet cakes to serve to guests. Sadly, it's all on MY dime in an effort to fix a disaster--that I may, or may not, have caused directly.
One couple says they're OK with it, keep all, or part of, the money they paid me--I'm OK, but not whole.
Another couple says thanks, but it wasn't what we ordered, so process the refund--I'm out the cost of what I made AND what I had to buy to try to make it right-- but that's the cost of doing business & being self-insured.

You just can't imply that if you supply "anything" that you then get to decide if they get a refund. When you're on a hook, it's important NOT to wriggle--it usually results in greater injury.

The change order clause is important, especially with a time frame and sign off included.

Rae
I love you, but your emergency is not my crisis!

They say that a little knowledge is a dangerous thing, but it is not one half so bad as a lot of ignorance.--Terry Pratchett (b.194
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I love you, but your emergency is not my crisis!

They say that a little knowledge is a dangerous thing, but it is not one half so bad as a lot of ignorance.--Terry Pratchett (b.194
Reply
post #10 of 18
6/13/12 at 3:55pm
Here's mine:


a)  Beyond Buttercream shall not be held liable for any 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; labor troubles, disputes or strikes; delays in delivery of supplies; non-performance of suppliers; an act of God; or any other circumstances or causes beyond Beyond Buttercreams control that affect performance as contracted.
b)  Delay in transit shall not constitute grounds for discount, refund or any other compensation to Client for any reason.
c)  Beyond Buttercream cannot perform as contracted due to the aforementioned conditions:
i)  If item(s) ordered are not completed at time of uncontrollable circumstance, all payments, including the non-refundable retainer fee, will be refunded in full.
ii)  If item(s) are completed at the appropriate time, but cannot be delivered due to uncontrollable circumstances as described above, the Client will be refunded 50% of the total cost of item(s) plus any delivery fee charged.
d)  If the Client desires and is able to pick up completed item(s), the Client will be refunded 10% of the total cost plus any delivery fee charged.
e)  Refunds will be given within 90 days.

I use Doug's contract (with my edits). Anyway this seems to cover it pretty well.
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post #11 of 18
6/13/12 at 4:45pm
Great example of why someone should always read a contract, ask questions, and have the contract reviewed by someone very familiar with legal documents.

I 'd be very leery of such a broad, sweeping denial of ANY liability citing numerous things, ending ultimately in the company being able to arbitrate for itself what was "out of it's control".

For me, as a consumer, it has too many outs for the baker--both specific and generalized--that could result in my having NO cake and for them to be completely off the hook, having done little to nothing to mitigate that.

Like the OP's potential client, I'd be asking pointed questions about exactly what would be done for me should Paragraph A come into play--and I'd want it in writing.

I'm not casting aspersions on you. I don't know WHAT you'd would/could do if you felt compelled to invoke Paragraph A.
As a potential client, I'd like to think that you'd go the extra mile to make sure that it worked out "OK", but that contract doesn't generate that type of confidence in me--and in the end, it seems that if I was dissatisfied with you're efforts/non-efforts, I'd be SOL.

So yes, I know, you'd be booked. icon_surprised.gif
Rae
I love you, but your emergency is not my crisis!

They say that a little knowledge is a dangerous thing, but it is not one half so bad as a lot of ignorance.--Terry Pratchett (b.194
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I love you, but your emergency is not my crisis!

They say that a little knowledge is a dangerous thing, but it is not one half so bad as a lot of ignorance.--Terry Pratchett (b.194
Reply
post #12 of 18
6/13/12 at 5:40pm
Not to get all dramatic or whatever, but I have a great example: 9/11. Not only was it a national tragedy, but where I live we were targets. Bridges and public transportation were completely shut down. No boats or ferries. People mobbing local stores for supplies. Whole sections of the city were evacuated. People were trapped here because the airports were shut down - in fact all flights were shut down. No mail. No FedEx. And this went on for almost a week. If you were unlucky enough to have selected that week as your wedding, you were not getting a cake. If you were relying on specialty equipment to be delivered to you to make the cake that week you were SOL. If you were low on dairy and hoping to just grab some to make the cake, good luck.

To me, that is what this clause covers. Stuff that is nobody's fault but you could never hope to prepare for.

I've also been blocked from entering a hotel because all the workers were on strike. Happens all the time here. If your venue's workers happen to go on strike, surrounding the block picketing and making it impossible to enter, no way are you getting your cake on time. Not my fault.
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post #13 of 18
6/13/12 at 6:01pm
I also have one of these clauses in my contract and not once in 5 years has anyone questioned it, especially not like this groom. icon_rolleyes.gif

I agree he's raising some vaild points but it sounds like your gut is telling you he's really just being a PITA and looking for any excuse to complain. If the consult didn't go well then I would tell them you are no longer available.
Tact is telling someone where to go so nicely they can't wait to take the trip!
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Tact is telling someone where to go so nicely they can't wait to take the trip!
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post #14 of 18
6/13/12 at 6:15pm
Quote:
Originally Posted by FromScratchSF

Not to get all dramatic or whatever, but I have a great example: 9/11. Not only was it a national tragedy, but where I live we were targets. Bridges and public transportation were completely shut down. No boats or ferries. People mobbing local stores for supplies. Whole sections of the city were evacuated. People were trapped here because the airports were shut down - in fact all flights were shut down. No mail. No FedEx. And this went on for almost a week. If you were unlucky enough to have selected that week as your wedding, you were not getting a cake. If you were relying on specialty equipment to be delivered to you to make the cake that week you were SOL. If you were low on dairy and hoping to just grab some to make the cake, good luck.

To me, that is what this clause covers. Stuff that is nobody's fault but you could never hope to prepare for.

I've also been blocked from entering a hotel because all the workers were on strike. Happens all the time here. If your venue's workers happen to go on strike, surrounding the block picketing and making it impossible to enter, no way are you getting your cake on time. Not my fault.



That clause covers you very well. It leaves the customer SOL.
Had I been a customer, who would have likely re-scheduled my event, I'd have expected my cake, or a refund for the full amount, for that new event. Either way, I'd have expected my money to be returned or the contracted cake to be provided. I would not ever expect you to profit from that experience. Sorry.

If you choose not to be a "scab" and cross the picket line, or not to call someone inside the hotel to come and take possession of the cake---work diligently to mitigate the circumstances, then again, it's the cost of business/self insurance and you have no right to profit from it. Sorry.

Rae

Rae
I love you, but your emergency is not my crisis!

They say that a little knowledge is a dangerous thing, but it is not one half so bad as a lot of ignorance.--Terry Pratchett (b.194
Reply
I love you, but your emergency is not my crisis!

They say that a little knowledge is a dangerous thing, but it is not one half so bad as a lot of ignorance.--Terry Pratchett (b.194
Reply
post #15 of 18
6/13/12 at 7:03pm
Rae, I posted what my clause says, which spells out that not only would I refund, I give them an option of picking up the cake. I don't ever want to profit from anyone's tragedy. I feel the clause is necessary but so is spelling out when and how to give a refund.

The concern from the hotel scenario is not that I wouldn't cross a picket line - but protesters here are aggressive. It wouldn't suprise me if I would be pulling a cake out of my van and get pelted with garbage, wads of paper, get pushed over or people knocking the box out of my hands.

It's not just a hotel labor dispute that could prevent me from getting somewhere. It could be a full Free Palastine protest, Occupy Wall Street, a pillow fight, zombie march, and any number of things people get all crazy here over. My worst fear is having my van surrounded by Critical Mass when trying to deliver a cake. Ug.

I realize I live in a different universe then most icon_biggrin.gif
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