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Bob K

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About Bob K

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    Location sound mixer

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  1. Bingo. The "flat rate" changed to a 10-hr rate, and the new indemnification provision is exactly what I suggested: "Each party agrees to indemnify, defend, and hold harmless the other party from and against all reasonable claims of loss, cost, or damage (including reasonable outside attorneys’ fees) to the extent arising out of its breach of this Agreement, and/or its negligence or willful misconduct." Thanks Jim, Phillip, RP and everyone who shared your experiences and knowledge.
  2. I'm just now busy striking out the Indemnification provision (in my first post) and the references to "flat rate" (we had agreed to a 10-hr rate including gear, not a 24-hr rate). I'm going to write in the 10-hr rate and OT rate. I've decided I can live with the "termination without cause" provision, after receiving some perspective here. I'll suggest an alternate Indemnification provision (recommended by NOLO): “Each party agrees to indemnify, defend, and hold harmless the other party from and against all reasonable claims of loss, cost, or damage (including reasonable outside attorneys’ fees) to the extent arising out of its breach of this Agreement, and/or its negligence or willful misconduct.” I'll follow Jim's prescription for a polite "how do you want to proceed?" approach. After receiving the "production book" over the weekend, I realize that the shoot involves an interaction between a wealthy person and a wealthy corporation in what looks perhaps like some kind of endorsement, maybe. I've done many shoots of that nature, but this one is mysterious and deliberately secret. So, even RP's interpretation of the Indemnification clause is a concern. It begins to appear that Philip's interpretation of the overly broad Indemnification clause may be correct in this case. I've just noticed a second paragraph in the Indemnification provision, and ask for any thoughts about either striking it out or leaving it in. The shoot is in a safe location and there is little chance of personal injury. My only concern would be theft of my equipment, either in the parking garage or while at lunch, and that's not very likely either. "Contractor voluntarily and knowingly assumes all risks of loss, damage or injury to himself or personal property by participating in the production of the Program or being otherwise present on the surrounding premises or location."
  3. Thanks, JW. I agree completely. I find sound is the most mysterious aspect of production for some people—usually those not wearing headphones—yet they can be adamant micro-managers. I've learned to just say no, politely, in spite of a natural inclination to accommodation.
  4. Thanks, Jim. Good information and very helpful. I'm planning to wait till Monday, and by then I should have their "production book" too, to provide some more information. I've done probably over 1,000 contract jobs so far—sound, camera and editing—and I don't have any problem walking away from jobs with red flags. They are few and far between, but I find that when I notice red flags and do the job anyway, bad things happen.
  5. Here’s some information Jim linked from NOLO about indemnification: "In a mutual indemnification, both parties agree to compensate the other party for losses arising out of the agreement to the extent those losses are caused by the indemnifying party’s breach of the contract. In a one-way indemnification, only one party provides this indemnity in favor of the other party." And, "make sure your obligations are limited to your own mistakes or misconduct... the term 'to the extent arising out of' effectively provides this limitation." This is exactly what concerns me about this company's indemnification. It doesn’t limit my liability to my mistakes, misconduct or breach of contract. There is some reassurance from NOLO, noting that “indemnification provisions are generally enforceable... except “indemnifications that require a party to indemnify another party for any claim irrespective of fault (‘broad form’ or ‘no fault’ indemnities). “Those have been found to violate public policy.” So, this company’s indemnification provision is probably not enforceable. This is NOLO’s example of what a “basic mutual indemnification provision” should look like— “Each party agrees to indemnify, defend, and hold harmless the other party from and against all reasonable claims of loss, cost, or damage (including reasonable outside attorneys’ fees) to the extent arising out of its breach of this Agreement, and/or its negligence or willful misconduct.” That sounds like something I could sign. But, there's another clause in the deal memo to consider: "Contractor agrees to provide first class work. Contractor has the skills, physical fitness, resources, expertise, and experience necessary and appropriate to provide the services and perform all of his obligations under this Agreement in a prompt, competent, efficient, and effective manner." So, where is the line, exactly, between "prompt, competent, efficient and effective" service, and breach of contract? If one of my wireless mics has some RF hits, is that a breach of contract? And, there’s one more troubling clause in the memo that no one has yet commented about. It’s a one-day shoot, and the deal memo says “this Agreement may be terminated at any time by Producer without cause.” Does that give the producer carte blanche to say, at the end of the day, “thanks Bob, you did great work, and by the way I’m terminating our agreement and we’re not paying you?”
  6. Philip and Jim, the first contact came last Tuesday, the PC booked me on Thursday, and I received the deal memo Friday night. A "production book" is coming yet this weekend. The shoot is on Tuesday. So, yes, it's last minute, perhaps intentionally. I'm asked to sign and return the deal memo by Monday. Philip, I like the advice in your first paragraph. It's always good to be polite. Much better than the "bite me!" response that was my first instinct. RP, that's an interesting interpretation. Perhaps their language is just a clumsy way of saying that. But, "indemnify" also means "compensate," and it appears their language could be interpreted more broadly.
  7. I don't know of any insurance I could buy that would indemnify a client’s wrongdoing in which I have no part.
  8. Philip, I've blacked out the parts of the (pdf) deal memo I don't accept, including the "flat rate." I suppose I'll have to hand-write in the 10-hour rate and OT rate. Would you sign and date the redacted document, or send it back unsigned?
  9. David, I should have mentioned it's a one day shoot. Mike, yes, and in addition this contract says I indemnify them for anything "arising out of the Program" and it lists examples that happen downstream, long after the day of the shoot.
  10. This may be the most obstreperous deal memo ever. I agree to indemnify the production company for it’s own wrongdoing! (I’ve looked for any clause saying “caused by contractor” or anything similar, but I don’t see it.) “INDEMNIFICATION: Contractor does hereby agree to indemnify, defend, and hold Producer, its shareholders, officers, contractors, corporate affiliates, agents and employees harmless against all claims, judgments, decrees, costs and expenses arising out of the Program or arising out of the television broadcast and/or digital transmission of the Program, or associated sale and/or distribution of any reproduction of such broadcast or transmission, including but not limited to any death, disability, personal injury, property damage, negligence, recklessness and/or any alleged copyright infringement, trademark infringement, other property right infringement, libel or slander. The provisions of this paragraph will survive termination of this Agreement.” Then, there’s a provision about termination if the “Contractor fails to perform his service satisfactorily.” OK, I’ve never seen that before, and it seems a little harsh, but then I read the last sentence: "...terminated at any time by Producer without cause." Huh? “If in the judgment of Producer, for any reason, Contractor fails to perform his service satisfactorily, Producer has the right to terminate engagement of Contractor at any time during the production and completion of the production, at which time wages will also terminate. This Agreement may be terminated at any time by Producer without cause.” So, maybe I should strike some things out before signing? Nope. “Contractor understands that this is the sole agreement and no other agreement whether verbal or written has been understood or undertaken in this matter. This is the final agreement; no further negotiation will be taken into consideration by either Producer or Contractor.” And, on top of all of it, my agreed upon 10-hour day rate was changed to a "flat rate." That's particularly annoying, since it usually means the "simple" and "short" shoot will be complicated and long, and I won't be paid for overtime. So, I want to work, I'd rather be working than not working, but I can't see signing this. Any thoughts?
  11. I hadn't noticed, but the sentence "I will take all necessary steps and make my financial advisor have payment issued for these purchases and tasks and mailed to you" is buried in the email. Maybe the scam involved having me pay for "production equipment" during the probationary "trial period." Really lame.
  12. Just for your amusement, here's the latest scam. It started with a text message. "Your profile was received from Mandy.com. I'm Kim Wang from FreeFlow Production, a film production company based in south-east Asia..." They had a "project coming up in (my) district," and "we are in need of your skill." I was asked to "confirm (my) skill, availability and email your updated resume to vsw.official@gmail.com." It already smelled like a scam, but I am getting more (legit) job offers by text message these days, and some don't even bother to give their name or company name. I googled and found a company in Singapore called "FreeFlow Productions," so I attached my resume to an email. Here's the email I received in response, in full: ------------------------------------------------------------------------------------------------------------------------------------------- Hi Greetings, I hope this beautiful day finds you doing well? I received your resume in response to my message. Thanks for the confirmation of your availability and sorry for the delay in response. Your profile has been reviewed and you sound great. About Me: Recruitment officer at "FreeFlow Production", a company based in south-east Asia. I work as affiliate recruitment officer and Production Manager in the USA. I need some assistance at this time that's why I need someone who can work with me hand in hand throughout the production period. It will take a week and it will be shot in different locations. We are presently working on a short film which I'm directing the production aspect, although work hasn't commenced and we should start working on the film in the next couple of weeks. The Production will take place in your area on 2 of April to 7th of April Our Location manager will disclose locations in the meantime. You will work closely with me and other crew throughout the production process, Duties basically would be: -Production medic -Assisting with booking of production equipment within your locality. NOTE: Your present job doesn't affect the Status of the job. I will need to place you on trial period, I need someone who can perform his or her duties with resourceful and proactive in dealing with problems and queries, All I need you to do is to complete all task in a timely manner. I am being thorough and explanatory here because I have hired people in the past who did not live up to what I expected and this time, I do not want to make the same mistake. I have decided to offer you a probationary offer (trial period). Here I want to see how you would demonstrate your skills and how exceptional you are and how efficient and on time you will be. I will need you to perform a couple of tasks for me during this coming week, which are part of basic duties you will be performing before the project fully start and if I am impressed and convinced that you are right for the job, I will be setting up a meeting with you once am done with this shooting am presently working on. Your wage for the trial period will be $1,100 and full weekly payment and bonuses for the upcoming projects will be discussed during an interview. If the above work for you, I will take all necessary steps and make my financial advisor have payment issued for these purchases and tasks and mailed to you. The trial period runs for 3days . If you want to sign up for this, kindly provide the details below: Your Full name; Mailing Address; City, State, Zip Code : Mobile Phone Number: Best time to reach you during the trial period: BENEFITS: • AD & D Insurance • 401(k) • Medical, Dental, Vision Type: Part-Time Hours: 20 Hours per week Days: 5days per week Weekly Pay: $1100 Best Regards ------------------------------------------------------------------------------------------------------------------------------------------- Production medic? Probationary offer? My reply: Kim, Thank you. You sound great too. I look forward to receiving your check for $1,100. Once the check has cleared my bank you will be entitled to one day of my services as a Sound Mixer.
  13. Anyone have experience with a client named Madden America, or ITV America, or ITV-Creative (all the same company)? Any problems? Did you get paid?
  14. Bob K

    Deal Memo after the shoot

    Update: I stood my ground, declined to sign the deal memo, and got paid in full within 30 days. After repeated reminders to sign the deal memo including the "supersedes all prior and contemporaneous written or oral agreements and understandings" clause, and statements that my invoice could not be processed without it, I sent the following: "I hope you understand that you have entered into a legal contract with me. That contract is contained in our email chain beginning ***. It includes the specific services and equipment to be provided, and the specific charges, and obligates *** to pay my invoice in full within 30 days. Payment of $*** is due by ***." Several days later I received a check, dated the same day as my email. I see a couple of possibilities. Either someone "upstairs" decided the email contract was valid and needed to be paid (overriding the associate producer who was still insisting on the deal memo), or Accounting paid the invoice routinely without knowing about the unsigned deal memo. Either way, it's a relief. I treated my self to a nice bottle of wine that evening.
  15. Bob K

    Deal Memo after the shoot

    But, the deal memo only reflects the charges we agreed upon, not anything about the services and equipment that we agreed upon. Those specifics are replaced by the generic phrase "the usual and customary services required of a person employed in the position." The specifics of our agreement are my only defense against an angry producer who disputed what I was "hired to do." Wandering Ear, there are many apps for smartphones that automatically record calls. Some phones are sold with them pre-installed. For landlines I manually trigger a recorder. JK Audio makes professional gear. Their QuickTap is a simple way to connect.