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ToS Advice, if you please.

I've just finished my first draft of my Terms of Service, and if anyone wouldn't mind giving it a look-see and some advice, I'll be eternally grateful. It was much more difficult than I had anticipated, but I think I managed to cover everything. It was probably tougher as I do offer a variety of commissions, including Illustration, Taxidermy, Sculpture, Plushies and Costuming(Fursuits) and I tried to keep the phrasing generic enough to apply to all areas and specific enough to keep my loose ends tied up.

https://docs.google.com/document/d/1V6td5F9OI9naNOmrewXK3cVILWYquMhV-Ceph1uuVqI/edit?hl=en_US

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( 4 comments — Leave a comment )
zi_mugudarina
Sep. 15th, 2011 08:45 pm (UTC)
Here are some points you may want to consider:
1) While I appreciate that no one wants to read a complicated ToS, know that the more general your terms, the more danger you open yourself to. This isn't a specific critique, I'm not familiar with the breadth of your work and the terms seem fine to me, just something to keep in mind.

2)In the section Rights of the Buyer, you do not specify a maximum size of the displayed work. This opens the work up to considerable duplication risk if the buyer posts the complete work in sufficient resolution. If this isn't a problem for you, ignore it. If this concerns you, limit size to something that allows for good display on a monitor but does not allow for high quality reproduction.

3)The Rights of the Artist section does not grant you the right to display characters in a manner that suggests their owners agree or promote your belief or services. Adding this right to your terms is possible, but would be a nightmare (especially concerning third party characters) and would probably harm your work, so it's just something to keep in mind.

4)The revisions section should probably be more specific about the fees charged and what happens if they are not paid. You may want to specify an exact number of reasonable revisions you will make and state that more are at your discretion and depend on the work's nature. This will save you many headaches in the event that you run into an unreasonably demanding customer.

5)On your cancellation fees, you are unlikely to be able to secure 50% of the fee upon cancellation in light of your collection of the 30% deposit. Most courts would disregard this, even if it is in the terms. Since it is unlikely to do any good and sounds harsh, I would replace it with the statement that you will keep the deposit once work has been finished. Increase your deposit to 50% if you are overly concerned. A better idea would be to have separate deposits for those pieces that are more resource intensive (perhaps 30% for purely digital work while collecting 50% for physical pieces).

6)Also in your cancellation fees, if work has been completed and you are requesting 100% of the fee, the work cannot be canceled. The contract is completed, rights do not revert to you and are as established in the terms and you are obliged to deliver the work to the customer provided they still want it and can pay shipping. If they cannot or will not pay shipping, you are obliged to hold the work for them and safeguard it from reasonable damage for a period of time that varies based upon your location. If you tell me your general location (state, country, etc), I can be more specific. I would rewrite these terms to simply state that the work cannot be canceled after completion of the first presentation and that the full fee is due.

7)The Credits and Copies section, as written, permits people to display the work without crediting you so long as they pay a fee equal to 50% of the original fee. If this is your intention, leave it be. If your intention is to compel credit, rewrite the terms to add that in addition to the fee a credit byline of your choosing must be placed. This has the additional effect of making violations of this term more severe.

8)The 2%/month fee for late payment should be specified to be on the remaining balance since that is all you are likely to be legally able to collect. I would suggest adding a line that states payment is due in full to prevent the appearance that you offer financing (mostly a precaution). You cannot charge a late fee and revoke all rights to the image, however. The buyer may not use the image until you are paid, but if s/he eventually pays you and pays your late fees, s/he has full rights to the image as laid out in the terms even though you have a statement that suggests this can only be done if paid within 90 days. Simply put, if you are paid, the contract is fulfilled. No matter what. You may want to add an additional fee if the work is displayed after the 90 days but before payment is delivered. This will keep someone from displaying your work for months and then eventually paying you.
zi_mugudarina
Sep. 15th, 2011 08:46 pm (UTC)
9)In Permissions and Releases insert the word "reasonable" between "all" and "claims." It is implied anyway and will keep your terms from being invalidated in a court claim.

10)Your Commission process is very detailed with a lot of structure. This is extremely good for instilling confidence in your clients but it's worth noting that if you don't do what you've laid out here, you have violated your own terms. They owe you nothing and you must refund their deposit. You cannot place terms that protect the deposit in this case. In other words, don't promise what you can't deliver.

11)Also in the commission process, you may want to remove the statement "and approve changes." Obviously, they still can give and you can still accept feedback. But this keeps someone from claiming that you have implied they are guaranteed the right to approve changes. Alternately, add the phrase "if delivered in a timely fashion" but this sounds a little negative and isn't as protective.

12)Change the line in your Warranty that that mentions tossing a piece recieved in unclean condition to read that if it is received in an unclean condition you will refuse it. In most cases, you are required to return work you will not work on. If it is a health risk, this still allows you room to dispose of it. I would also add that the buyer is responsible for all shipping charges. You've got it earlier in the terms but it is safer to specify that this includes the warranty and not just the first shipment.

That's all I have for you. This is primarily based on US law but it is more or less the same for all English speaking countries. Email me at cuthain@gmail.com if you've any general questions. Sorry if this was far more detailed than you wanted. ;)
millislim
Sep. 17th, 2011 09:19 am (UTC)
WOW...erm...super thorough!

While I don't think you should dumb down the words used I think this TOS is intimidating. I do think you should keep it as is but if you had a dumbed down version.

1. 30% upfront
2. I accept REASONABLE revisions.
3. communication thru email only
4. there will be cancelation fees
5. you may repost to personal galleries with proper credit due
6. for full TOS please see below
7. by commissioning me you agree to the FULL TOS below

That way people get the jist and if they don't read all of the "below" before entering a contract with you tough cookies
zi_mugudarina
Sep. 21st, 2011 02:44 am (UTC)
A commission doesn't guarantee acceptance. Even if you state that it does. They could claim they commissioned you independently of the entire terms, even the one stating that commissioning you results in acceptance, and be free and clear. This strategy only works if you get acceptance directly from them (ideally via email) that they accept the terms before finalizing.
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