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Non-Payment for Model

173
Kidd

A fellow classmate and I were recently contracted to build a model for a low rise residential building. The guy who contracted us used to go to school here and when he came in today to look at the model, he decided that he didn't want it and refused to pay us.

What are the legal channels I can go through to receive payment for services? It was roughly $2000 for the model and we spent upwards of 50 hours building it. Should we go through small claims court to get paid or what are our options?

Thank you for the advice in advance.

 
Sep 19, 14 5:06 pm
x-jla

Small claims court ha....Haven't you ever seen GoodFellas?  

Sep 19, 14 5:11 pm  · 
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x-jla

Put it on his door step with a note "you have 24 hours to pay"

Sep 19, 14 5:12 pm  · 
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Kidd

Haha, I've seen it. While I would love nothing more than to find a way to stick it to him and his practice for what they've done, I want to financially recoup the time spent. Mind you, we just finished finals, have three weeks of summer "break" and then we start again. We've been working on this a long time and I just feel that we should receive some kind of payment. 

Thanks for the quick reply

Sep 19, 14 5:15 pm  · 
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3tk

Do you have a contract in writing (hard copy or e-mail)?  Without a contract for payment of the work (stating standard of work and mode of payment -hourly, fixed fee-) , you'll be hard-pressed to find much sympathy in court.  With a contract you can file a complaint, or at least put in writing that w/o payment by xx you will pursue legal action against their practice which may light a fire (assuming the work is par for the business around you, $2k is a lot of expensive material...).  

Most reasonable course of action maybe contacting your faculty or dean of students at the school to inquire about it.

Sep 19, 14 5:27 pm  · 
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Kidd

Thank you 3tk. I'll look over the contract again to make sure I didn't miss anything and after talking to my classmate, will report back on what we decide to do. Hopefully we can get something out of this without dragging it out and making this a long process. Like I said, we start school in two weeks again and haven't really had a chance to wind down.

Sep 19, 14 5:33 pm  · 
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Kidd

I looked over our documents and we did not get a written contract. He asked us to make an invoice and he verbally agreed to honor that invoice. I wasn't the one in charge of the negotiations, so I don't know what else we can do besides eat the bullet and learn from this. If something comes out of it, I'll update, otherwise, I think this is dead in the water.

Sep 19, 14 6:04 pm  · 
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citizen

This is, unfortunately, an early lesson in the pitfalls of working and (not) getting paid in architecture.  Caveat venditor.

I certainly would look into small claims court for possible remedy.  Failing that, a well-applied ball peen hammer might do the trick.

Sep 19, 14 6:19 pm  · 
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Kidd

It is a harsh lesson but one we'll grow from. Looking forward to more opportunities though, as this provided a good lesson for the both of us.

 

BTW I've been a long time lurker of Archinect. I plan on doing more posting and commenting as my journey through arch education moves forward.

Sep 19, 14 6:29 pm  · 
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sameolddoctor

Small claims court without any proof? Wtf?

Use this as a learning experience, take pics of the model for posterity, then burn and pee on it.

Sep 19, 14 7:26 pm  · 
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For the small fee it costs to file, small claims can be very effective. Just getting served is enough to make some people pay up. They can't be bothered to go to court, or don't want to hire a lawyer to do it for them, or they are too embarrassed.

Document meetings, phone calls, photograph the model, copy of the drawings it was made from, etc. If you really want to be a PITA, complain to the local AIA and licensing board with a well documented letter. Fraud qualifies as professional misconduct.

Sep 19, 14 7:47 pm  · 
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sameolddoctor

Miles, I think it was all verbal - how can that stand in any court?

Sep 19, 14 8:54 pm  · 
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The model itself is evidence. And an oral contract is still a contract. 

Sep 19, 14 8:56 pm  · 
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gbear
I would redraw his plan and patent them officially. Then you could sue them for copyright infringement. That could be fun! A taste of their own medicine. Pricks!
Sep 19, 14 9:24 pm  · 
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Carrera

Miles is right, simply file in Small Claims, I have and it works at low cost. You don’t need a written contract the work speaks to the facts. There is no chance that the judge will find otherwise and just filing may get some payment, but you need to be prepared to negotiate. The problem with any favorable judgment is that it only gives you a license to collect and that can be complicated and expensive. It’s the pressure of the filing that gives you leverage to collect – don’t give-up.

The problem with this kind of thing is that their defense will be that it wasn’t what they wanted. That’s a common defense but in my experience the judge will see through that and with a good presentation you can prove that it was an honest attempt to perform….and the judge will award…they smell skunks all the time.

Sep 19, 14 10:48 pm  · 
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archanonymous

Miles and Carrera are spot-on. You probably do not even need to go to small-claims court. Just draft a letter (or have a friend in law school or lawyer help you) stating that if payment is not received within x days, you will be filing a suit in small-claims court. This has worked for me numerous times, and I have never once had to go to court. -------------- (sorry, my phone doesnt like to do line breaks) On the other hand, if he is a prominent local architect, or works with prominent architects, you may want to be more diplomatic. Some asshole in LA still owes me a couple G's, but the positive relationship and connections i can extort from his guilt are much more valuable than the money. Something to think about.

Sep 19, 14 11:25 pm  · 
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^ Why give the prick any warning? All it will do is lessen the shock value of an eventual action - if one is taken.

Cut to the chase and file in small claims. He has to defend or he loses by default. For $15 or whatever the filing fee is you get the full weight of the state behind you. Try to imagine his reaction when he opens the court appearance ticket.

Sep 20, 14 10:13 am  · 
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chigurh

I took a lady to small claims and it was fun as hell...

I got a kick out of knowing that some dude just went right up to her place of business and personally served her with papers to appear in court.  She was a no-show in court, I presented my case, won, and had a judgement that she had to pay the amount due.  What is nice about having a formal judgement is that you can go through other channels to get paid, like garnishing wages.  I also filed a lien on her property, which was the reason she eventually paid, can't do shit with a lien on your house...I think she was trying to refinance or something.

All in all I just looked at it a small lesson in the practice of law and I would do it again just based on the principle alone...Pay the people you hire to work for you, simple as that. 

Sep 20, 14 10:42 am  · 
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Brandon,

Rule #1 - ALWAYS USE A WRITTEN AND SIGNED CONTRACT WITH SIGNATURE OF BOTH YOU AND THE CLIENT. THIS IS WHAT IS KNOWN IN COURT AS A MUTUALLY SIGNED WRITTEN AGREEMENT. ALWAYS INCLUDE A TIME AND DATE STAMP.

I don't care if the price is $0 or as high as $1 Googleplex. ALWAYS USE A WRITTEN CONTRACT.

Rule #2 - Make clear in very short words that the model is a deliverable of service and shall be paid for REGARDLESS of whether or not the client agrees to continue services because pay is for what has been rendered not what hasn't yet so that is what is billed for and client shall agree to pay accordingly.

Rule #3 - do not overcharge the material cost beyond reason and rationale. General rule of thumb for material cost should not be inflated more than a general round up. In fact, when it's part of a fixed fee or whatever, you probably budget accordingly to what you agreed to in pay and material cost and contigency factor should not be more than double what it should cost (not including mark-up for contribution margin/profit). If it's an additional service, round up to the next $10 increment. Factor in replacement cost of paint and other packets of components, materials, etc. even if what you used partially used in each kit. Factor for replenishing your supplies used. 

If you rendered the work on basis of agreed terms then you are to be paid.

Rule #4 - Always take recording of what is discussed and note down what has been agreed to, put it in writing and have signed with date / time stamp. All of this is for clarity of when agreements are made and amended.  Yes, this is tedious and requires organization skills but you're the professional therefore engage professionally.

Now what to do with the existing situation:

A - Get your agreements records together. Put a draft of your argument and substantiation and all your facts and data together.

B - Check with the small claims court to see if the value of what it owed falls within small claims. If it exceeds small claims then it goes to another court. Make sure you know which court this falls under and then file. 

C - Go back defense and arguments. Fill out all the paper work needed to be filled out before case begins. 

D - Prepare yourself and keep in mind the various arguments the client may make. Prepare your composure and make sure you keep your cool in the case regardless of what the client will say..... REGARDLESS of the accuracy or inaccuracy or bold face lie of the client. During this time, once the case is filed & goes to court, do NOT contact client. General protocol is not to have communication even if the client calls. If the client shows up, agreeing to pay with secured check in hand for the amount for what is due, then yes, communicate in that regard and accept payment, deposit and proceed to cancel court proceeding ( Settled out of court ).

The loss in filing should not amounted to more than your profit margin so you should at least break even if not have a little bit of profit remaining.

Sep 20, 14 11:52 am  · 
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I agree with Carrera that a written contract is not required in small claims but written agreements tends to eliminate hearsay especially if it's contractually in writing that only what is put in written contract and mutually signed by all applicable parties to the contract shall be deemed to be mandatory and legally binding. However, not all written and signed agreement will be absolutely mandatory conditions in that how you craft the language may put somethings at a heightened demand/expectation of the client to fulfill to extent possible where is possible with caveats conditions that may release or will release you from requirement. What is orally spoken shall be treated as "If it is possible" not mandatory. What shall be done is what is in writing and what is required by legal requirements of the authorities having jurisdiction whereas the legal requirements shall take precedence.

By having things written, and signed, it becomes mandatory unless legal requirements counters it and therefore, you shall take every attempt reasonable to achieve that obligation.

Whatever the case is, have a written record and keep in control of the situation to extent where you don't get screwed over. Having things recorded and agreed upon would help to eliminate hearsay. This way, it is evidence of what is agreed upon. Have it all time and date recorded.

keeping it organized will keep a clear sense of what happens and more facts oriented and less issues of hearsay.

C.Y.A.

Sep 20, 14 12:11 pm  · 
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go do it

You have received great advice here, follow it. In the case that you do not receive any monetary compensation just going through the process of Small Claims Court and more fully understanding Contract Business Practices is a form of compensation also. Just look at it as a very cheap business class from your university.  

Sep 20, 14 2:24 pm  · 
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Carrera

Just wanted to add that Real Pricks don’t do or respond to anything and won’t show up. If that happens get your judgment and come back here and chigurh and the rest of us will help you collect.

Sep 21, 14 3:44 pm  · 
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citizen

Again:

ball. peen. hammer.

Sep 21, 14 5:34 pm  · 
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zonker

Wich wuna dim fingahs dih he use? 

Sep 21, 14 6:09 pm  · 
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snooker-doodle-dandy

You should go back and document from the very first introduction what happened.  Your partner should also do the same. It should be independent of each other.  Then you should compare notes, just to be sure you are tracking together.  If there is a big variance in what either of you think occurred there is a likely hood you might be in trouble. However if your spot on with one another then you go back and document every email. phone call ect  from the client.  You gather up all your paper hard evidence that you were working in with the client.  You talked about the level of detail, you talked about materials, ect.  You have drawings he provided you.  Remember you are not responsible for bad design, but if you can show you  built a model to reflect what was given to you then the bugger should be paying up.  If he doesn't think he should go ahead and file a small claims court filing, but check to see how much you are allowed to file for before filing. States vary  on the maximum amount you can file for in a small claims court.  This might  push you to civil court if you claim is larger than small claims allows.  Don't expect fast results....I have been sitting on a case for almost  seven years as it has been appealed to a  District Superior Court.  I have no idea as to when it is ever going to be settled.  It is far more complex than a guy not wanting to pay for a model, I can assure you that.

Sep 21, 14 7:22 pm  · 
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If your claim is over the limit you can still file a small claim. If you win will only be able to collect the maximum amount set by law. Small claims can be appealed, but it's rare. Usually the appeal is filed as a way to delay or avoid payment by dragging it out indefinitely. At that point it's spite, not money.

Don't even think about civil court, a lawyer will cost you a multiple of the amount you've already lost. That's before you factor in your time and the negative effects of stress. Common strategy for people with lots of dough is to simply bury you in legal fees. They'd rather pay the lawyer twice what they owe you. Don't engage in a fight that you can't afford to lose.

Also, liens can be bonded, freeing up the property for mortgage or sale. Then you have to foreclose to try to collect. Been there, done that.

Jaffe's First Law: The value of a service is inversely proportional to its degree of completion.

Jaffe's Second Law: If you need a lawyer it's already too late.

Sep 21, 14 8:11 pm  · 
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file

Brandon - I'm curious about something. 

Did your client say why he didn't want the model? Was he unhappy with the quality ... or some specific aspect of how it was constructed?  Did he offer you a chance to fix the areas related to his concerns?

Your answers to these questions might be germane to how you go forward from here.

Sep 21, 14 10:31 pm  · 
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graad

I am not sure if this was covered in the comments but I would contact the state board that regulates firms. There is sure to be some ethics/practice rules being violated.

Sep 22, 14 11:28 am  · 
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geezertect

You are getting some great advice here.  Fortunately, this is early in your career.  When you get stiffed on a really big fee it can be fatal for your practice.

Definitely talk to your dean about it.  He may know the guy, and sometimes there is nothing like being embarrassed in front of your mutual friends/peers to make somebody get in line.

Just going through the small claims process  is worth it even if you don't ultimately prevail.  The sooner you loose the idea that you have to suck it up and be the victim, the better off you are.  You've got to develop a hard shell in this business.

Since the client went to the same school as you, I assume he is also an architect.  Proves that there are pricks within the profession and not just on the client side of the table.

It's the shits.  Let us know what happens.

Sep 22, 14 12:12 pm  · 
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Olivia8880

Hi I am the other student that worked on this model, and sort of managed the process as well. I wanted to thank you all for the advice and responses to our little dilemma! There are some more details to mention about it as well, which might change how we should go forward.

Firstly, in the last meeting with the client we were about 3/4 done with the model and had about 3 days to finish it, so they came to check our progress and were unhappy with the quality of the model. Granted, their design was very complex and required extensive 3d model repairs to understand how to construct the thing. There were certain small gaps between walls and floors as well as some other minor imperfections, but I assured them we put in 110% of ourselves into the production and we certainly did.

In retrospect, they came to our school fab shop and asked undergraduate students to produce professional model quality, and we did the very best we could with our somewhat limited experience. He showed us a sample model he made before we started and by no means was it perfect, and the building was much more simple then the one we were commissioned to build. The scale was larger too which made it simpler to build.

I am hesitant to file a claim because a.)they told us before it was complete to stop building because they didn't think we could do it (even though we were planning on finishing) b.) I'm nervous to ruin any business relationships in our city's architecture community so early in our careers and c.)the model was not perfect.

Thoughts?

Oct 6, 14 2:32 pm  · 
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accesskb

If they weren't so sleazy and cheap, they'd have paid you full or part of it out of appreciation for effort, regardless if they were going to use the model or not.  It ain't like your model cost them tens of thousands right?  Telling you all straight up the model was not good and they aren't going to pay you is terrible.  Its like telling a kid still learning that their work sucks. 

Also, what kind of a reputable firm comes to the school's fab shop looking for undergrads to build a models for them?

Oct 6, 14 4:00 pm  · 
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Non Sequitur

Shame the firm publicly.

Oct 6, 14 4:09 pm  · 
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a.)they told us before it was complete to stop building because they didn't think we could do it (even though we were planning on finishing)

They are liable for costs incurred to date of stop work order. By your description that is 75%. Make your claim accordingly.

b.) I'm nervous to ruin any business relationships in our city's architecture community so early in our careers and

Architecture is not a community - it is a fiercely competitive business. Not only do you not want a relationship with assholes like that, you don't want a reputation for rolling over when someone takes a dump on you. That's not a business relationship, that's abuse. Stand up for yourself and demand what is fair - you are not in the wrong. If you're worried about this asshole badmouthing you, just imagine how cheap and stupid this guy would look doing so. I hired some undergrads to build a model and they totally screwed it up. LOL Cheap fucks. Take them to small claims and hit them in the wallet.

c.)the model was not perfect.

Immaterial. What is perfect? Nothing. They didn't hire a professional model shop so they can't expect the same results. They didn't check your progress before 75% completion? That's their problem, not yours.

Stop screwing around and file the claim. 99% probability that you get a check for the 75% before the court date.

Oct 6, 14 5:56 pm  · 
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zonker

Ya know, there was 1 time in particular I did some renderings - worked all night and didn't get paid because the renderings did not meet expectations - it's important no matter what to meet expectations if you expect to get paid - that's just the way it is

Telling you all straight up the model was not good and they aren't going to pay you is terrible.  Its like telling a kid still learning that their work sucks 

the lesson that should be learned here is to to meet expectations no matter what - no excuses - just do it or suffer the consequences - if you fail to measure up at an architecture office - you just get fired. And I wouldn't snitch on them in court either - just take it as a lesson.

Oct 6, 14 6:01 pm  · 
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cocococo

^Xenakis, you were screwed out of money you worked for in a contractual business relationship. Don't wear that as a badge of pride. Your "lesson" isn't worth a dime; the work these two did, however, is.

Great advice, folks! I took a business class early in my education and the same stuff comes up again and again. A class in contracts is invaluable.

Oct 6, 14 9:11 pm  · 
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Carrera

Kind of changing my mind on this. Last night while out to dinner the couple in the booth behind us asked for the manager. This guy went on about not getting the baked potato he ordered with his steak dinner. The restaurant had a problem and discovered all the potatoes were rotted and sent a kid out to buy more at a grocery but not in time. He said he didn’t come there often but when he did he always ordered steak and a baked potato and not having one ruined the experience. The manager explained then apologized profusely, several times, then said “no charge for the dinner” and offered free desert. What the hell? What about the wife’s dinner? Jesus Christ he ate the steak! I wanted a baked potato too but didn’t get one either but I paid for our dinners – I think there are people that make sport out of not paying for things, just one false move and they don’t pay.

If that is allowed to happen then none of us are going to get paid! I do have to say however that they didn’t take and use the model – they didn’t eat the steak. Sorry Miles on this one but I think they need to suck this one and just learn from the experience.

Oct 6, 14 10:17 pm  · 
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If I go into a restaurant and order a steak I am obligated to pay for it whether I eat if or not. If there is a problem with the steak there is an opportunity for discussion. But just walking out on the tab - whether you eat the steak or not - is theft.

If I design a building for someone who doesn't build it I shouldn't get paid? 

Oct 6, 14 11:01 pm  · 
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wurdan freo

I used to have a model building business in school.  Great money. Always get 50% down to start or no go. Always get a signed contract. That being said, I would sue these guys in a heart beat. You sound like a bunch of fuckin' pussies.  Many of the businesses that exist out there put out  a mediocre product and they still get paid. Make it a learning experience, but don't let this dude ass fuck you... cause that's what he is doing. Learn to stick up for yourself... no one else will do it. If your work sucks... you won't be in business long. One last thing.. you think by not suing this guy he's going to talk great about your skills. He's going to say that your work sucks and you're a bunch of fuckin' pussies. This guy and this project is never going to be a reference for you. Sue him. 

Oct 7, 14 1:11 am  · 
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geezertect

You've learned your "lesson" about having a contract.  Now it's time to complete your course work and learn another "lesson" about how to recover from the first mistake.  Stop negotiating with yourself.  If this asshole is an architect, then by definition he was an architecture student once upon a time.  He knew he wasn't hiring a professional model maker.  He knew what he was getting.  He is trying to take unfair advantage of your inexperience.  A judge will take the power differential into account.  I think you've got a pretty good case, even if it's only for 75% of the agreed amount.  Forget this shit about maintaining good relations in the "community".  If he's a crook, the " community" probably knows it already.

Go after him.  You have a good chance of prevailing, and if you do it will give you a shot of self confidence that will pay dividends the rest of your lilfe.  It's a positive feedback loop that you need to get started.

Oct 7, 14 8:01 am  · 
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shellarchitect

I'd demand 75% and maybe eventually agree to the cost of material.  I would also not worry about burning a non-existent bridge.  I'm sure your not the first to be screwed by this guy.

Don't back down and do be a major pain the the ass

Oct 7, 14 12:38 pm  · 
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Carrera

Miles – yes he did order the steak but he didn’t eat it. The analogy you offer about drawings is valid for services but not product. Isn’t a model more of a product than service?

A product is something you can point at, whereas a service, as The Economist defines it, is any activity "you can't drop on your foot". Buying a custom wedding dress is a product – true, derived from service – but it’s a product. Lots of gray here but I think this is where deposits come into play – you get a nonrefundable deposit to cover the service aspect then paid in full for the product aspect upon delivery – if the dress is all fucked-up at delivery then they walk, no harm.

Oct 7, 14 1:49 pm  · 
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Carrera,

A model can be a product or an instrument of service just like the building plans.

They are tangible aspects of the service. They can be a product but it is in how you draft the contract. Is the contract making the model a product like if I designed and built a chair and put a price tag on it and then put it at the window for purchase then yes it would be a product. If on the other hand, the model is like the renderings and drawings are tangible instruments of delivering a service then in contract the compensation or payment is for a service not a product. 

The key element here is is this a product or is this an instrument of service. They have distinct legal meaning and the terms of contract is important to understand the arrangement.

Oct 7, 14 3:29 pm  · 
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If you defined in the contract what are instruments of services, was physical models indicated as an instrument of service?

Oct 7, 14 3:32 pm  · 
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b3tadine[sutures]

Did this prick contact you through the school?

Oct 7, 14 3:49 pm  · 
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gruen
It's time: name & shame
Oct 7, 14 3:49 pm  · 
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b3tadine[sutures]

http://vimeo.com/22053820

Oct 7, 14 3:51 pm  · 
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After re-reading the very beginning, it sounds like the contract is for making a model or was it building design. Brandon, please elaborate fully what was the contract for.

If you were designing the residential building then the model maybe considered instruments of service. If this was just to create a model then it would be like hiring a contractor to build a cabinet or chair that they have designs for. The chair like a custom door is a product and a service of labor packaged. It might be something more parallel to that if you weren't designing. So they would be paying for cost of material and the cost of the labor (like any product is.) So it would be a "custom cabinet" that comes from a custom design already prepared prior to the wood worker doing the making of the cabinet. Thinking to this sort of parallel. The making of the model would be like that, so to speak.

When I do physical models, it is part of a building design business and is an instrument of service. 

I'd like to see some clarification on what this is, precisely. What is the contract relationship? What is the contract for?

Oct 7, 14 4:18 pm  · 
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Carrera

Richard, OliviaThall said "Granted, their design was very complex and required extensive 3d model repairs to understand how to construct the thing". Then she said "...they came to our school fab shop....". "Fab shop" isn’t an architect’s office - Sounds like they built a chair with 3 legs to me. 

Oct 7, 14 4:44 pm  · 
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b3tadine[sutures]

Well, given this was handled through a school, I'd burn this fucker with the dean of the school.

Oct 7, 14 5:00 pm  · 
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Okay. Thanks for the clarity. It sounds like that a bit. That make sense, then. Then again, its not a real business since it is not legal to run a private business out of school facilities without permission of the school and officially renting out an space on the school for running a business like renting a store front and considering it is the school's fab shop, students can not legally charge for such since it is illegal to commensorate business that way. The school's property or much of it is not zoned for commercial business activity and if it did have such, the location of carrying out business has to have a Group B occupancy classification and since it was part of the school, I believe it would be very problematic. 

Some colleges and universities have outright expelled students for doing such. 

Students, if you are going to run a business, rent a business store front in the city somewhere and use your own equipment or get an permit to locate a business on the school campus from the school or meet clients off campus. I have worked around the legal issue when I was on-campus in Eugene. My business's principal place of business is my Astoria, Oregon location and I carried out my services off my portable drafting table and so forth but I meet clients the same manner I would in Astoria which can be in any public location and used that caveat but it was my equipment and my tools . I worked it in a manner that wouldn't cause issues like clients meeting me in the dorm because that would go afoul of the rules even though I was running into a gray area. 

It is not a real legal business from what I understand the details in the original post. I would advise care and caution. 

A college campus is not a place of business and is zoned for educational services.

Oct 7, 14 5:02 pm  · 
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Carrera

Add the fact that this was done at school for money compounds the issue – could get the school or instructor in difficulty – better keep on the down-low and just call Virgil "The Turk" Sollozzo to collect.

Oct 7, 14 7:04 pm  · 
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