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Advice on artist & Client TOS

Hello Artist_Beware! My question is relativity simple.
If an artist agrees to a deadline, and the artist misses the agreed on deadline, is the client allowed to ask for a full refund, regardless of the the artist TOS (ex: no refunds, only partial payment if I've started, ect)?

I thought this might have been a breech in contract between the artist and the client, and the client would then have a choice to end the contact or to renegotiate the contract.
Is this true?

I've been trying to contact the better business bureau about this, but they seem to continue to run me around in circles. A this point they are telling me to call somewhere else atm, but I'll keep everyone updated on what I am told from their end.

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Comments

( 45 comments — Leave a comment )
celestinaketzia
Sep. 23rd, 2014 08:11 pm (UTC)
They could ask for one, but whether or not they get one is another story.

If it wasn't a severe emergency or something of the like, it would be good business for the artist to honor the full refund. Keep in mind that if you do get a full refund, that any progress on the work will not be yours. The artist may resell the base pose as they wish to recoup the cost.

With that said, if it were me personally and they were almost done, I'd just extend it slightly. If the image had not even started? Yeah probably would ask for a full refund, myself.
sheepilyy
Sep. 25th, 2014 07:23 pm (UTC)
Yes, it all depends on the artist, of course.

And yes, if you get a refund the work is no longer your's. Here is an interesting question. If a client were to get a full refund, and let's say the artist completed the image to sell prints of, or use, ect.
How would you handle that/feel about it?

I have never heard of this ever happening. I know artist have re-purposed things before (which is perfectly fine) -- but what if the artist completes the work? I wonder if there is some legal issues with that? I am completely unsure on that one. Maybe you can enlightening me? A little off topic, sorry!

Yeah I agree if no WIPs have been sent, or anything I think a refund is in store.
I always get this awkward feeling when I ask for a refund and an artist magically shows me a WIP at that stage. It gives me a feeling that they made the WIP to show me because I had ask for a refund.
What do you think about things like that? I normally just let the artist continue but! yeah!
Lots of hypothetical questions sorry! xD
(no subject) - celestinaketzia - Sep. 25th, 2014 07:29 pm (UTC) - Expand
(no subject) - sheepilyy - Sep. 25th, 2014 07:47 pm (UTC) - Expand
funkicarus
Sep. 23rd, 2014 08:17 pm (UTC)
unfortunately i'm pretty sure if the artist's TOS says 'no refunds' you're not going to be entitled to a refund... honestly the best way to ensure that you get refunds is to read artist TOS's and make sure the person you're hiring doesn't have that policy!

you could always ask, but especially if the TOS says 'no refunds' i wouldn't be too hopeful.
namelessimp
Sep. 23rd, 2014 08:35 pm (UTC)
A "No refunds" clause is not legally enforceable. If a person does not provide a service when they say they will, then it's acceptable to ask for a refund. When a company agrees to do work for you and flaks out on it, you can cancel. The same way that even if they started it, they agreed to a certain deadline and the commissioner is entitled to at least a partial refund.

This "no refunds" jazz from artists is disgusting and making the rest of us look bad. It also gives the commissioner the feeling that they have no rights, which is simply just not true.
(no subject) - funkicarus - Sep. 23rd, 2014 10:59 pm (UTC) - Expand
(no subject) - houndofloki - Sep. 23rd, 2014 11:36 pm (UTC) - Expand
(no subject) - celestinaketzia - Sep. 23rd, 2014 11:45 pm (UTC) - Expand
(no subject) - funkicarus - Sep. 24th, 2014 12:39 am (UTC) - Expand
(no subject) - ithinkdirt - Sep. 24th, 2014 01:30 pm (UTC) - Expand
intj_reflection
Sep. 23rd, 2014 08:34 pm (UTC)
Two things:

First, a No Refunds clause is unenforceable in a court of law if no product has been provided.

Secondly, you can request a refund. If work has started they should refund you a portion equivalent to what has not been completed (IE the difference between colors and inks if they've finished the inks, etc.), or the entirety if they have done no work.
temrin
Sep. 23rd, 2014 08:49 pm (UTC)
Agreed with this. Partial refund if work has started or materials have been ordered. Full if they haven't ordered or started anything. (unless in whatever case, there is a non refundable deposit for mats, which i know some costume builders do have.)
(no subject) - sableantelope - Sep. 23rd, 2014 09:13 pm (UTC) - Expand
(no subject) - sheepilyy - Sep. 25th, 2014 07:31 pm (UTC) - Expand
epiceternity
Sep. 23rd, 2014 09:09 pm (UTC)
In some contracts when an artist misses a contractual deadline but still produces the work within a reasonable time frame then their fee gets reduced. If the work is significantly late as to not be usable then the client can cancel and not pay. Though in some contracts they may have to pay a cancellation fee (suggested to be 25% for roughs stage, 50% for artwork stage) if work has been done. It's all down to the details of the contract, how time sensitive the work is, how strict the deadline and client is and how late the work is.

So as you had an agreed deadline you could ask for a partial refund (suggested 20-25%). However unless the art is rendered unusable due to the delay, you are unlikely to get a full refund if work has been done. If you have agreed to a 'no-refund' contract then that makes it more tricky, esp if it's a casual contract.

I think the best would be to ask for a partial discount for the missed deadline if you still want the art.
If the art is no longer relevant due to the missed deadline then you can ask to cancel and get a refund on work not done.
If no work has been done yet combined with the missed deadline, then yes, you could cancel and ask for a full refund.

(Sorry if that was a bit long winded and dry!)
sableantelope
Sep. 23rd, 2014 09:27 pm (UTC)
In some contracts when an artist misses a contractual deadline but still produces the work within a reasonable time frame then their fee gets reduced. If the work is significantly late as to not be usable then the client can cancel and not pay. Though in some contracts they may have to pay a cancellation fee (suggested to be 25% for roughs stage, 50% for artwork stage) if work has been done. It's all down to the details of the contract, how time sensitive the work is, how strict the deadline and client is and how late the work is.

You're absolutely right on this, but with missed deadlines it's one case where the contract actually favours the buyer if nothing specific is set to overrule it.
So unless they did set a specific 'deadline missed' clause with a different course of action(like an initial 25% off for the missed and 5% for every week missed kinda deal) the buyer still retains the option to dissolve the contract for a breach.

I think if a seller offers deadlines they really do need to draw up a contract with a clause like you mention- that sets what the penalty for missing the deadline is. That way they can mitigate the risk of being on the hook for the whole amount + plus any labour.


(no subject) - epiceternity - Sep. 25th, 2014 09:16 pm (UTC) - Expand
(no subject) - sheepilyy - Sep. 25th, 2014 07:37 pm (UTC) - Expand
(no subject) - epiceternity - Sep. 25th, 2014 08:40 pm (UTC) - Expand
sableantelope
Sep. 23rd, 2014 09:11 pm (UTC)
Yes, you can get a full refund if they miss the deadline on a custom piece. No usable product on the due date is a breach. I know someone here on AB got mad at me the first time I explained this fact, saying they would never do business with me if that's how I feel; but it's not how I feel about it, it's contract(custom item) law.
That's the thing about deadlines, when an artist chooses to accept one they take on a lot more risk than a usual transaction. It's one of the reasons why some artists charge more for deadlined pieces, which I think is fair. The artist takes a risk of missing the deadline and therefore taking a loss for all their work up until the deadline.

The guidelines for what gives you a just reason to miss a deadline are pretty ruthless as well. A lot of the reasons furries use to justify delays and which their customers accept actually wouldn't hold up legally. (I can get into more detail, don't think it's needed here though)

You can choose to renegotiate the deal at this point if you still want the piece, with what ever you feel is a fair amount of a partial refund, but you're under no obligation to do so.

Also BBB probably can't help you if the person selling is not registered as business/sole proprietor. You're better off talking to your state/provincial prosecutor(DA)'s office.
Normally they wont get involved unless it multiple induviduals and high loss amount, but it's worth a try,.


Edited at 2014-09-23 09:28 pm (UTC)
intj_reflection
Sep. 23rd, 2014 09:31 pm (UTC)
This is excellent information. Thank you for sharing.
(no subject) - sableantelope - Sep. 23rd, 2014 10:29 pm (UTC) - Expand
(no subject) - ithinkdirt - Sep. 24th, 2014 01:37 pm (UTC) - Expand
(no subject) - sableantelope - Sep. 25th, 2014 07:09 am (UTC) - Expand
(no subject) - sableantelope - Sep. 25th, 2014 07:09 am (UTC) - Expand
(no subject) - sheepilyy - Sep. 25th, 2014 07:45 pm (UTC) - Expand
thaily
Sep. 23rd, 2014 09:42 pm (UTC)
Could they ask for a full refund? Sure.

Should they get it? Depends, if the art served a very specific purpose and HAD to be available by a certain time, like as a wedding gift or something? I'd be inclined to agree they should get a refund, maybe even a full refund provided they make no claims to any work (sketches) finished up to that point.

Provided the customer gave a reasonable amount of time before the deadline, even if the artist agreed to the time given. If a customer expects a huge detailed multi-character piece in traditional media in like a week... That's an unrealistic expectation.

But that's opinions, and not American business legalities.
sableantelope
Sep. 23rd, 2014 10:35 pm (UTC)
even if the artist agreed to the time given. If a customer expects a huge detailed multi-character piece in traditional media in like a week... That's an unrealistic expectation

The artist has to look out for themself though, every party in a business deal is responsible for mitigating their own loss. So you need as an artist to consider how much time you need, and to give yourself 'life getting in the way' cushion in addition.
One party can't just enforce a deadline, it has to be agreed on by both parties at the very beginning of the deal. So if the commissioner says one week and you say no way, that's that. You either have a meeting of the minds on the deadline or don't make a deal.

If you do decide to take that multi character, real media piece with only a week to draw it; and it turns out can't it done you have to face that you made a mistake and eat the loss.
(no subject) - thaily - Sep. 24th, 2014 11:15 am (UTC) - Expand
(no subject) - lurkerwisp - Sep. 24th, 2014 01:58 pm (UTC) - Expand
(no subject) - thaily - Sep. 24th, 2014 05:57 pm (UTC) - Expand
(no subject) - lurkerwisp - Sep. 24th, 2014 06:57 pm (UTC) - Expand
leahtaur
Sep. 24th, 2014 04:24 am (UTC)
All I can add to this is that the Better Business Bureau probably doesn't want to claim individual freelancers under their umbrella, and that a lot of people don't know that businesses who choose to pay the BBB a fee get a higher rating regardless of their track record. So I don't think they're all that great of an organization to consult anyway. :B
sheepilyy
Sep. 25th, 2014 07:49 pm (UTC)
Yeah! The BBB was really no help. I didn't want to report anyone, I just wanted to know if it was reportable/legal issues with refunds.
I believe they gave me the number to the attorney general office around here and told me to ask them instead. I got a little frustrated and posted here instead to see what everyone thoguht instead.

That is really interesting to know about the BBB tho, I had no idea! I'll be more careful when I look into their rating system.
(no subject) - mistresswolf - Sep. 25th, 2014 08:58 pm (UTC) - Expand
jos_if
Sep. 24th, 2014 07:59 am (UTC)
On thing, I'm going to guess that this is not one day overdue but if it was to be. Always make sue you put your timezone in when asking for the commission, the artist may be in a different time zone to you, It's always good to be specific.

Back on subject, Yes you can ask for a full refund but depending on what you ordered and what you wanted it for this may not be the best choice. If it was for an important business project and you have seen no work then yes you should ask for a full refund. (this is the situation i believe you are in)

However if it is not for a business purpose or doesn't actually have a due date out side of when the artist agreed to it(but from reading what you have written it seems like it does) and you have seen work, you should contact the artist and see if you could get a partial back. This is just what i would do but you could still get a full refund anyway.

Of course however after you have been refunded the money any artwork that was done by them in this time no longer belongs to you and if you foresee using this artist for future ventures i would defiantly try being polite when asking for your full refund, they might very well give it to you, it is always a nice thing to do before going to paypal as the artist might need some times to get the funds for you. However if they become rude after this i would suggest not using them again.
sheepilyy
Sep. 25th, 2014 07:52 pm (UTC)
Yes, a day over deadline I generally am okay with. I generally try to contact people CLOSE to a deadline (ei: there is a week left, how are things going? ect)

I mentioned this in an above post, but how do you feel if after a client asks for a refund then the artist shows signs of working on the art AFTER the refund was asked for? Like nothing was shown to the client prior to that point? Would you still ask for a full refund at that point?
(no subject) - jos_if - Oct. 3rd, 2014 07:30 am (UTC) - Expand
pinkpuppybelly
Sep. 24th, 2014 05:03 pm (UTC)
If work has been started on the art, a full refund shouldn't be expected.

In my opinion, at least.
sheepilyy
Sep. 25th, 2014 07:53 pm (UTC)
I guess I am kind of posing this question to a lot of people -- but what if the artist shows the client work AFTER the refund is asked for?

Like the client asks for a refund and the artist says well I have colors done (link), so I can only offer you a partial refund.

This is all of course after the deadline has been missed.
(no subject) - tylociraptor - Sep. 25th, 2014 11:09 pm (UTC) - Expand
(no subject) - niimou - Sep. 26th, 2014 12:18 am (UTC) - Expand
(no subject) - niimou - Sep. 26th, 2014 12:22 am (UTC) - Expand
mistresswolf
Sep. 25th, 2014 09:01 pm (UTC)
Personally, I think it would be shady of the artist to do that. I mean, if they honestly hadn't done any work and then with the threat of having to pay back the money, threw something together to show the buyer.

It has the same attitude of when, as kids, my sister would say "Well I WAAAAS going to *nice thing* for you, but now I am not gonna!" not exactly the same, but the feeling is to me.
( 45 comments — Leave a comment )

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