Contract wording... can you help?

AllyIdo

After I freaked out about the photographer I decided to review the contract.

"If XXXXXXX is unable to perform to this contract due to any cause beyond the control of the parties, XXXXXX shall
have no further liability with respect to this agreement. If XXXXXX is unable to perform to the obligations in this contract
in the event of photographer’s illness or for any other reason, XXXXXXX will not be liable for costs in excess of the amount
the client has paid. This limitation of liability will also apply in the event that the high-resolution digital files are lost through
camera malfunction, damaged in the processing, lost in the mail, or otherwise damaged or lost with or without fault of the
photographer XXXXX. While every attempt is made to create the best images possible, no particular photo is
guaranteed."

Is this normal? Do your contracts provide for a replacement in the event of illness or something else? Is this just saying he can no-show and I am totally screwed? I think the last part about no guaranteed photos is pretty standard, but the beginning is bothering me.

Thanks!

Valeriecruz82

That definitely is not normal. Sounds pretty shady to me. My contract states that in the unlikely event of personal illness or other circumstances beyond the control of XXX an attempt will be made to procure the services of another professional photographer to fulfill the obligations.

vegasgroom

I was actually thinking the opposite of your thoughts @Allyldo.  I think it's fairly normal for most very small businesses, like self-employed photographers, caterers, etc. to give themselves an out if they can't perform their job duties for any reason, but limiting their liability to the price you paid, not damages.  It's more about limiting liability than trying to give themselves a way out if they don't feel like working.  For example, if I was a one man photography shop, I'd give a customer their money back if I couldn't meet my obligation, and of course I'd try my best to ensure there was no issue, but I wouldn't pay them above and beyond the fees paid unless I really needed the work and was willing to take that liability that I wouldn't be in a car wreck or similar that day.  If I had a steady stream of work, I would not be willing to add any penalty fee into that because it simply wouldn't be worth the risk.

Now, the wording about I'm not liable if my equipment malfunctions and destroys all the pictures would worry me a lot more; nothing like that was in my photography contract.  Additionally, I'm a wannabe photographer, and I can't think of any reason why that language would need to be in there.  If you're a pro wedding photographer, and a one person operation, you know you have no room for mistakes and you'd never have just one camera body with you, or just one memory card.  Most pros that work alone typically are carrying two cameras because they'll have one prime (non-zooming) lens for close-ups and portrait shots, and another camera body with a zoom lens to cover the rest of the range they can't get close to, or would be in the way if they did. 

They'll alternate between cameras as needed and typically will fill up and swap memory cards as they go as well.  Some wedding photogs I know intentionally change memory cards throughout the shoot so that if one does end up bad, just a small period of time on just one of their cameras is lost, and the client never needs to know, they just miss some pictures that could have been there.

On top of that, really good cameras typically support writing to multiple memory cards simultaneously to ensure this type of issue doesn't occur.  My Canon that I shoot with has a slot for CompactFlash and SecureDigital memory cards; I have it set to record photos to both of them so I know even if a card got fried, it would not result in lost work.  Yes, it's a $3k camera and not a feature you find on everything, but I would expect a pro photog to be using a pro camera.