Consumer Law, Warranties Non Refundable retainer fees

[Photo_Queen]

I am a photographer and I would like to know the correct term to use for my non refundable deposits.

I require my clients to send in half of their sitting fee as a retainer so that I know they are going to be there and I do not have to worry about NO Shows.

What is the correct term to list in my brochure and on my site so that I am not obligated to ever return that money if they cancel or just don't show up?

Non Refundable Deposit? Non Refundable Retainer fee?

my website and brochures state the following:

A non-refundable retainer fee of $200 is required in full to reserve your appointment.
This retainer fee MUST be received within FIVE DAYS of making your appointment in order to reserve your time.
After five days the appointment will not be guaranteed, NO exceptions. This retainer will be _applied to your sitting fee on the day of your portrait session.
Cancellations must be made at least 1 week prior to the session. New appointments will be made at the time of the cancellation.

Is this enough?

 

[NYClex]

To an inexperienced reader it still might sound a little ambigious: What about a cancellation prior to a week before the appointment for which he already had paid the retainer? The way you write it the customer could hope for a reimbursement.

Actually, from a customer-friendly business perspective I would suggest that you make the retainer refundable if a customer cancels before a certain deadline that you can freely choose.

You should probably organize the conditions so they are easier to read: Something like this ( I haven't researched this in any way, just an idea how it would sound a little clearer):

Reservations and cancellations policy:

Appointments have to be made at least five days prior to the desired date. All appointments made less than five days in advance cannot be guaranteed. [By the way, that doesn't make much sense to me. If you have openings in your schedule and someone calls 4 days in advance, why not guarantee him the appointment if he pays the retainer?]

To guarantee an appointment a non-refundable retainer of $ xxx has to be paid no later than five days before the appointment. The retainer will be applied in full to the final bill.

If you need to cancel an appointment [later than five days before the appointment] the retainer fee will not be refunded. [Here you could add a provision if you are willing to reschedule without cost]


If you have not cancelled an appointment [at least five days prior to the appointment] and you do not show up to the appointment the retainer will not be refunded and not applied to any future bills.

By making an appointment for a sitting you agree to these provisions.

 

[Photo_Queen]

ok, but.....

I am booked normally 3-4 months in advance. I book at most 2 sessions a day, but only 6-7 a week.

I require the non-refundable deposit within 5 days of originally talking to me. If I don't recieve it I give the appointment away to the next available client. When they send in their money I deposit it immediately making sure the funds are available. Otherwise they don't have the appointment.

I don't want clients to be able to get out of their appointments with me. As a business owner I depend on my clients committment and when they cancel (which rarely ever happens) I require them to reschedule immediately upon cancellation without further charges. That way I have no loss of income.

I am a pretty high-end child photographer. My prices are at the level they are for a reason. I make sure every client sees my price list before I allow them to book with me. I go over my policies with them at that time also. Which includes the NON-REFUNDABLE DEPOSIT/RETAINER FEE.

I need a term that leaves no loop holes. Non-refundable scheduling fee?

Thank you for your help! I do appreciate it.

 

[SarahUMD]

I have a question in relation to this post. I recently canceled a photography contract scheduled for my Dec. 2005 wedding. The contract stated that a retainer was required, but it did not state that it was non-refundable. I have tried to get this back, with no luck. I have filed a complaint with the BBB, as many others have done about this company, with no luck. I am considering small claims court. I have copies of the contract as well as the receipt for my deposit, and it does not state anywhere that this retainer was non-refundable. In fact, there is no mention of a cancelation policy. Do I have a case against this company?

 

[Photo_Queen]

Weddings are booked at least a year in advance, photographers get this retainer to ensure that you are not going to cancel on them. It is a committment on your part as well as theirs that you are going to follow through.

If you cancel on them they can actually take you to small claims for the remaining amount in the original contract. If they were to cancel on you it would be another story. You are committing breach of contract. Most photogs do not go as far as small claims to get the rest of the fees simply because they do not have the time to do it. However, I know many who do, and they win everytime.

What was your retainer fee?

What was the reason for cancelling?

Have you asked about using the money you have already paid in studio?

 

[SarahUMD]

Thanks for the reply. I have moved up the wedding to this year, and I found a much cheaper photographer with better work. This company offers photography, videography, and DJs. I booked almost 2 years in advance, and I booked all three. I have a signed contract which does not state anything about canceling. I have already received my deposits from other vendors with no hassle because it was spelled out in the contract, with penalties, refund policy, "if canceled a year before the wedding, I will be refunded". This contract, once page including the quote does not state anything, except how much. The amount of the retainer does not matter in my mind, but it is the smallest amount of all my vendors. How could he take mt to court if I have a valid contract. It is not a breach of cvontract if it does not state that. My contract does not state that it is non-refundable, therefore, he is in breach of contract. He stated that it is implied that a retainer is non-refundable. I was always taught that you cannot imply anything in a contract. I just wanted to know how my case would hold in court. I may take it further so future brides stay away from this crooked company. I have met with many photographers in the past year, and I have contracts from all of them. Every single one clearly has a policy regarding the refund/cancelation. Do you still favor the photographer?

 

[SarahUMD]

On a side note, you asked about the correct wording in your contract for having a "non-refundable" retainer. If you had just said that you required a "retainer in the amount of __" wouldn't your clients assume that was refundable since it didn't state otherwise. ?

 

[Photo_Queen]

I never said I did favor the photographer!!!

They said it was implied? With what verbage?

I missed in the original post that this was a 2005 wedding originally. I do agree that they are not in loss of income at all. They have plenty of time to reschedule another client.

Having been a bride myself, and having had to reschedule my wedding only 1 month before the original date, I was returned my retainer fees for the country club because they were able to rebook the June 1st date easily. However, I used the same photographer. (regretfully so, don't ask!)

I would encourage you to first write them a letter explaining that you understand their need for policies regarding their retainer fees. However , their lack of the correct verbage in their contract does not allow them to keep your deposit. And the fact that it is 17 months before the scheduled date they have ample time to rebook the day. Their contract only covers them on services rendered. Let them know that you are giving them the choice of returning your retainer/deposit no later than July 15, 2004, or if they choose you are willing to file with small claims which will create actual damages due to loss of income from having to take the day off of work, court costs, etc. Compiling a greater amount of fees that he is going to be responsible. And he knows IMPLIED just doesn't cut it!

It HAS to be spelled out for him to prevail. ( hence my orignial post) In fact, since it WASN'T spelled out and most photogs DO spell it out it is more reasonable to assume that the retainer WAS refundable!

If they do not respond appropriately take this to small claims. I would also encourage you to get this list of names from the BBB and find out from the other brides just what the circumstances were. They may be interested in joining you.

I get very irked at people who do not act ethical! Especially people in my profession! I have half the mind to tell you that if it doesn't work and you don't get your money back in small claims. Tell him that you are keeping him on the books. Do not give him written notice of cancellation. Leave his a** on the hook for it! Only give him written notice of cancellation IF he agrees in writing to then refund the retainer.

However, that wouldn't be very nice would it! So I am not going to imply in any way that this would be a good follow through!!

I am not an attorney, I cover myself with my contracts just incase! I want to wish you good luck! I would love to know what happens!

 

[SarahUMD]

Thank you for your reply. I have already written him a letter, and he is yet to refund the money. I am planning on taking him to small claims court, but I will write another letter like you said, and give him a new deadline.

This company has already lost new business because of this. I work for a large corporation and we were looking for a videographer to do some digital editing, something his firm does. I overheard my colleague speaking with the company over the phone. Needless to say, we didn't choose this company, even though it was the most convenient. So, rather than return my retainer, he lost out on 2000 of business that would of been finished in a week!

My next question is this...is this in violation of the consumer protection act. I read that if it is, I can sue for triple damages. That would be even better! Either way, I just want to get my money back! It is rightfully mine, according to the contract!

Thanks again, and I'll keep you posted!