Do you have a no-play clause?

[rickryan.com]

Just got a FB msg from a friend of mine who runs a wedding band. He says they were working at a venue called "The Bridge" and the owners stuck them on the roof, under a perm tent. He says the tent collapsed on them, costing them about $15k in damaged gear. Now the owner is refusing to make it right and his only option is to sue.

Like I'm sure many of you do, I have a clause that requires a completely enclosed (rain-proof) structure and raised floor (no playing on the ground). I have to admit, I've played on the ground at plenty of tent weddings but, I have threatened to no-play a couple of times when the venue wanted to stick me somewhere for their convenience. Just wanted to share to remind us all to make sure we're doing everything we can to be covered. How do you handle these kinds of conditions? Here's my clause:

11. Special considerations for outdoor performances. The Contractor shall provide adequate shelter to protect the Service Provider and the Service Provider's Equipment from: direct sunlight, rain, snow and winds in excess of 10 miles per hour. This can be in the form of a tent, tent/shelter, pavilion or covered stage area that is completely waterproof and protected from the elements. If the ground is wet, a raised, dry platform shall be provided by Contractor. If outdoor temperatures exceed 85 degrees f., the performer(s) attire may be modified to accommodate climatic conditions. If proper shelter is not provided by Contractor, Talent may provide their own tent at an additional fee of $150.

 

[Valerie Hicks]

how would such a clause have helped the friend? They were in a tent, afterall. What does this friends insurance say about liability? We have had a tent collapse on a fairly large system when a storm rolled over the hill unexpectedly and with gusto. Twisted up truss, wet electronics, everything. We actually sent our DJs home when it was safe for them to leave the shelter of the client's house, and after our event was finished, loaded up, and we were back in town, we went out and picked up the pieces. The early morning hours we spent removing covers from amps, light fixtures, etc to dry. The truss was a complete loss. Everything else was repairable or undamaged once properly dried out. In the words of our client, "that's what insurance is for". We didn't ask them for $.10. It's rare that you could sue for damages due to an Act of God. A tent is designed to withstand average weather. Exceptional weather is not the fault of any person on your contract or otherwise.

 

[Valerie Hicks]

oh...and the answer to your post title....the only clause we include regards shutting down due to safety considerations; i.e. it's our discretion to shut down in the event of ___ (safety considerations to us, guests and/or equipment) and no reimbursement will be given...blah blah blah....

 

[steve149]

I guess the missing info is "Did the tent collapse due to weather or some other issue"? If weather, then Val has a point .. if it collapsed due to fatigue or something the bar owner should have known, there would be a case that they take care of it.

I view it like car insurance .. your insurance is to cover things when you have the liability. Their insurance should cover it when they have the liability.

 

[Ron]

I guess there could be some valid argument the tent was unsafe, maybe not setup correctly. I would imagine if there is some level of negligence on the venue providing unsafe conditions. But there are a lot of keywords involved (if, evidence, etc...) JMHO

 

[ahoustondj]

This is what happens when one writes their own Contracts! Those kind of contracts hold little water in a court of Law because they become ambiguous. First of all the Word "Contractor" is wrongly used. In most likely cases the Contractor will be the DJ himself. It could also be a third party who supplied said covering/tent and if it's inference is to the owner of the Venue, they are certainly not the Contractor in this context. That Technicality alone may lend cause for the Case to be thrown out of Court.

All parties involved in a Contract have to be clearly defined by name or by Alias ...for example Mr. Big Venue hereinafter referred to as "Client" and Joe Shytbag herinafter referred to as "DJ". This way, if there is a breach whoever is named is the one who signs and is held responsible.

To continue, not because one has Liability or Property Insurance should one run to their own Insurance Company for relief. Insurance Companies do not like paying out claims or having claimants on their rolls. It does not matter if you are in the right. Eventually it may negatively affect your Premiums. Just as how another Automobile Driver may be at fault at an accident and damage your vehicle, it is best to seek compensation first from the other Driver's Insurance. If that fails then you go to your own Insurance. Of course it is a good Idea to notify them of the occurrence just in case.

Moral of this Story be a DJ and not try to play Lawyer. Contracts that are ambiguous are not interpreted in the Author's favor!

 

[rickryan.com]

how would such a clause have helped the friend?

The contract stated they were to be inside. When they get there, the venue guy wants them in a tent and they buckled. If they'd had it clearly defined in their contract they could have looked the venue guy in the eye and said "You want us in a tent? No problem, I'll just have to exercise our no-play clause." I've done that on a couple of occasions and the venue owner always went wide-eyed, then made provision for me and mine. I have to admit, looking at my own clause, I need to strengthen it. My last sentence basically says "If you don't do it I will and you'll pay $150." In reality though, I don't keep the ez-up in the van so if I get caught I have no tent and my clause doesn't clearly give me an out to no-play.

 

[oldschooldj]

When you buckle for the money, you usually pay the price. Some times you just have to look at what you stand to loose and balance it against what you stand to gain, then make a WISE decision, seems your friend guessed wrong.

I have not been back in the game a long time, but have hard lined two venues and customers when they tried to change my location after we had a different agreement. I don't have a lot of leeway, as most of you know I don't use a contract and accept all payment after the event and the client is happy, so I am careful.

Once I had spent a couple hours setting up and the venue decided it was going to change my location without talking to the customer, because it would make it easier on them, but it would not be what the customer wanted. I told the venue that my next move with my equipment would be back in the trailer. They called the customer and the customer told them that I was in charge of the set up of the dance floor, DJ and seating area and if they wanted to get paid they should listen closely to what I had to say. I felt great, as I had spent hours working with this couple on how to best set up everything because they had a large, young dance group and a lot of older folks. I had it set up where we could hammer the dance floor (which the B&G wanted me to bring the thump, their words) but all the reserved seating for the older folks kept them out of the loud areas.

 

[rickryan.com]

Just for some clarification on my friend, he and his wife own this band operation. He was out of the country when this happens, playing with Alan Parsons Project. His wife was the one who buckled and let them get re-located under a tent. Fortunately, their contract states the setup was to be indoors so, it was clearly the venue owner's call to move them outside and then it was the venue owner's permanent tent structure which collapsed on the band's gear.

He spoke with a couple of lawyers who said, should he litigate, it was a 50-50 shot. I told him, "Dan, it's 80% bluff and 20% legal." During their earlier conversations the venue owner showed fear of bad publicity. I told him "Tell the venue owner that your buddy at channel 2 is interested in doing a story on this and that you have a computer expert buddy who is ready to start broadcasting it electronically to every website around." He did and added, "Look, I don't want to be the bad guy here I just want you to step up and do the right thing. You cover my $5k dig board and we're good." He said the owner is cutting him a check today. Oh yea, the board actually cost him $3k. While I know some here would loathe the way he ended up handling this, in my opinion it's business and the guy needed a motivation to step up to the plate. It's a bad situation but my purpose of sharing it here is just to remind us all to re-think our positions and take another look at our contracts. In my own case, I see a hole I need to patch on my contract. And incidentally, no, I don't think I need a lawyer to write a new contract. You put too much legal-eze into an agreement and you start scaring clients who can back away from doing business with you. My opinion, it's a balancing act and something you need to tweak and work on occasionally.

 

[steve149]

But .. if we're talking about the RIGHT thing to do .. exaggerating the loss costs ISN'T.

If there was no negligence and it was purely accidental and unforeseeable (this we don't know), I think covering the actual loss is appropriate. Asking for more than the replacement loss is delving into retaliation or punitive stuff.

 

[rickryan.com]

But .. if we're talking about the RIGHT thing to do .. exaggerating the loss costs ISN'T.

If there was no negligence and it was purely accidental and unforeseeable (this we don't know), I think covering the actual loss is appropriate. Asking for more than the replacement loss is delving into retaliation or punitive stuff.

I believe his actual replacement was higher than $5k. He said his new dig 32-channel board was toast, along with several speakers, brand new keyboard, etc. etc. He told me it was $15k but, then again, that could be exaggeration as well. Not to second guess him but if I had been negotiating with the guy I probably wouldn't have said to "cover my board". I would've offered a $5k settlement and it's my business what that covers. In the end, I think he probably settled for less than he should have but only he knows the actual cost of replacement. I'm just an outside observer.

 

[Cap Capello]

Insurance. Commercial liability and equipment coverage insurance.

If one cannot take a $15K self-insured hit, pay the couple a hundred bucks a year.

For me, insurance is like double insurance. Once I have insurance, nothing will ever happen and at the end of the career run I'll grouse about all the money I wasted on equipment and liability insurance when it was never ever needed. However, the split second I don't have it, a five second tornado will hit my equipment only. This just happens to be my reality, dammit.

 

[Valerie Hicks]

The contract stated they were to be inside. When they get there, the venue guy wants them in a tent and they buckled. If they'd had it clearly defined in their contract they could have looked the venue guy in the eye and said "You want us in a tent? No problem, I'll just have to exercise our no-play clause...."

But your contract sample above states:
The Contractor shall provide adequate shelter to protect the Service Provider and the Service Provider's Equipment from: direct sunlight, rain, snow and winds in excess of 10 miles per hour. This can be in the form of a tent, tent/shelter.....

But your no-play clause says a tent is ok. We're back to where and what is the negligence?

 

[ahoustondj]

Just got a FB msg from a friend of mine who runs a wedding band. He says they were working at a venue called "The Bridge" and the owners stuck them on the roof, under a perm tent. He says the tent collapsed on them, costing them about $15k in damaged gear. Now the owner is refusing to make it right and his only option is to sue.

Like I'm sure many of you do, I have a clause that requires a completely enclosed (rain-proof) structure and raised floor (no playing on the ground). I have to admit, I've played on the ground at plenty of tent weddings but, I have threatened to no-play a couple of times when the venue wanted to stick me somewhere for their convenience. Just wanted to share to remind us all to make sure we're doing everything we can to be covered. How do you handle these kinds of conditions? Here's my clause:

Just for some clarification on my friend, he and his wife own this band operation. He was out of the country when this happens, playing with Alan Parsons Project. His wife was the one who buckled and let them get re-located under a tent. Fortunately, their contract states the setup was to be indoors so, it was clearly the venue owner's call to move them outside and then it was the venue owner's permanent tent structure which collapsed on the band's gear.

He spoke with a couple of lawyers who said, should he litigate, it was a 50-50 shot. I told him, "Dan, it's 80% bluff and 20% legal." During their earlier conversations the venue owner showed fear of bad publicity. I told him "Tell the venue owner that your buddy at channel 2 is interested in doing a story on this and that you have a computer expert buddy who is ready to start broadcasting it electronically to every website around." He did and added, "Look, I don't want to be the bad guy here I just want you to step up and do the right thing. You cover my $5k dig board and we're good." He said the owner is cutting him a check today. Oh yea, the board actually cost him $3k. While I know some here would loathe the way he ended up handling this, in my opinion it's business and the guy needed a motivation to step up to the plate. It's a bad situation but my purpose of sharing it here is just to remind us all to re-think our positions and take another look at our contracts. In my own case, I see a hole I need to patch on my contract. And incidentally, no, I don't think I need a lawyer to write a new contract. You put too much legal-eze into an agreement and you start scaring clients who can back away from doing business with you. My opinion, it's a balancing act and something you need to tweak and work on occasionally.

Sorry but I am having trouble with this "Story" and the list of events. Help me to wrap my mind around this tale.
To summarize:

"Friend just called" at posted time 8.58am to share what happened.

2 Hours and 25 minutes later, At 11.23am the friend has talked to "couple of Lawyers".
After which you told him to tell the Venue Owner about some Channel 2 being interested in doing a story blah blah blah
Apparently the friend did and scared the owner into writing a check!

This is quite a list of events for such a short space of time. Was everyone using Skype or something?

As to the part in Blue. Quote: I have threatened to no-play a couple of times when the venue wanted to stick me somewhere for their convenience. I was always under the impression that you never do anything to cause waves at Venues for fear of being Blacklisted....you always settled for wherever they put you, .....your own words many times.......when did that Change? I am puzzled, help me to believe this ......

 

[rickryan.com]

But your contract sample above states:
The Contractor shall provide adequate shelter to protect the Service Provider and the Service Provider's Equipment from: direct sunlight, rain, snow and winds in excess of 10 miles per hour. This can be in the form of a tent, tent/shelter.....

But your no-play clause says a tent is ok. We're back to where and what is the negligence?

I have no problem with working under a tent, as long as it is fully enclosed with me protected from the rain. I only want the option to no-play if they fail to give me adequate shelter.

In the paragraph you quoted, it wasn't me, it was my friend and his contract stated clearly that they were to be indoors. He had the right of refusal but didn't. I didn't ask him but I would be curious to know; a) did he have insurance on his equipment (apparently not) and b) did nobody see the tent starting to sag?

Now as for a tent, the same thing could happen to me (or any of us) as happened to my friend. The real question is, how much protection does our contract offer us in cases like these? In my own case, I always carry painter's plastic sheeting with me and if I'm outdoors or if it's threatening rain, I have it out and ready to cover my gear in an instant. I've also had times where they really didn't provide adequate shelter and I went ahead, even with the plastic over my gear as I'm operating it. I obviously don't have all the answers here, just using this opportunity to discuss and re-think the best way to handle these scenarios. It's really becoming more of a non-issue as I've raised my rates enough to eliminate most of the outdoor gigs we have been working the past several years.

 

[Valerie Hicks]

yep, just throwing some things out for discussion as well. When we're outside we have plenty of tarps on hand...which is little comfort when the tent itself leaves! lol Our last outdoor event we had enough tarps to cover the equipment that was under the tent as well as what was outside--because tent walls are not impervious and rental co's generally won't install walls in more than 10-15mph wind anyway. A lot of water can blow in with a good stiff storm.

It's certainly an odd situation to unexpectedly be moved outside....then again, with a tent for cover, most wouldn't raise a stink. A gust can take down a tent in an instant. In the case I mentioned way above where our DJs were out in a tent on private property and hit unexpectedly, they did the right thing by evacuating the tent and our DJs went to shelter with everyone else leaving the equipment behind. It's what we train them to do; personal safety is first. Unfortunately they watched the big tent go down on top of the system from the garage!

 

[Ausumm]

For me, insurance is like double insurance. Once I have insurance, nothing will ever happen and at the end of the career run I'll grouse about all the money I wasted on equipment and liability insurance when it was never ever needed. However, the split second I don't have it, a five second tornado will hit my equipment only. This just happens to be my reality, dammit.

+1 on the Murphy's Law theory.

 

[rickryan.com]

yep, just throwing some things out for discussion as well. When we're outside we have plenty of tarps on hand...which is little comfort when the tent itself leaves! lol Our last outdoor event we had enough tarps to cover the equipment that was under the tent as well as what was outside--because tent walls are not impervious and rental co's generally won't install walls in more than 10-15mph wind anyway. A lot of water can blow in with a good stiff storm.

It's certainly an odd situation to unexpectedly be moved outside....then again, with a tent for cover, most wouldn't raise a stink. A gust can take down a tent in an instant. In the case I mentioned way above where our DJs were out in a tent on private property and hit unexpectedly, they did the right thing by evacuating the tent and our DJs went to shelter with everyone else leaving the equipment behind. It's what we train them to do; personal safety is first. Unfortunately they watched the big tent go down on top of the system from the garage!

I don't know about you guys but I also need to add some kind of stop-play into my contract (for dangerous weather conditions). Right now, it's undefined and we had an event a couple of months ago where my DJ couldn't start for almost 2 hours. I'd done an Italian String Lighting install on that job and the next day when I went back several garbage cans were filled from the water coming off the tents and there were trees down and roads closed in the area. My guy handled the situation probably better than I would have and refused to start until weather cleared up a bit.

 

[steve149]

I find it hard to believe that a tent collapsing caused $15k in damages. If your equipment now has a scratch on it, is it unusable?

If it was rain/wind that caused the collapse, then a scratch and a gallon of water could certainly ruin one's day.

 

[Ausumm]

I find it hard to believe that a tent collapsing caused $15k in damages. If your equipment now has a scratch on it, is it unusable?

If it was rain/wind that caused the collapse, then a scratch and a gallon of water could certainly ruin one's day.

And it wasn't just a $200 DJ mixer and a $700 laptop.