Business relationships are like lifts. You don’t notice them when they’re working, but when they break down, your life becomes very difficult very fast. You need a contract to protect you when it happens.
In this talk we’ll walk through the basic elements of a good project contract. Using wisdom gleaned from eight years of full time professional work – as well as a few lessons learned the hard way from difficult clients – you’ll learn how to build your client relationships on a solid and safe footing. We’ll also cover pain points such as IR35, copyright, and abandonment of project.
Your own contract should be a blend of advice like this, any regulations specific to where you live, and the experiences you will pick up along the way.
These guidelines do not deal with the specific “legalese” that should be in your contract, which can be individual to your country; rather, they list all the bases you should cover.
In the UK a written contract is not explicitly required. However, working without a written contract is like cycling without a helmet. After all, that’s not required by law either. Here’s a horror story from a designer who thought he could get away with doing a quick project without a written contract. The obvious ensued.
I should stress of course that I am not a lawyer, nor do I play one on TV, and you should have a solicitor in your local area review your contract.
- Authorisation. This opens the contract by stating the main fact, which is that the client is contracting with you to provide a service. The client is therefore authorising you to perform these services on their behalf, which may include accessing their hosting account and disk space, creating databases and applications, and using third party services.
- Direction and control. This is where you guard yourself against IR35 issues. Use this clause to state that the client is hiring you as an independent contractor, not as an employee, and the client has no right to define direction and control over you, nor the location where you will perform the work for them.
- Sole Agreement. This declares that the work to be performed is limited to what is specifically set forth in the contract. Any additional work will require a new contract. This part of the contract can also state the time limit for the prices set forth in it – after all, you do not want a client coming back to you in 2016 holding you to 2014’s prices. Clearly state that you and the client have no mutuality of obligation to each other for future work.
- Confidentiality. Both the client and the designer agree that any business information discussed during the project will remain confidential, and neither of you will divulge any of it to outside parties. You also agree to keep your client’s identity and the project confidential until you have launched it.
- Project design specifications (Scope of Work). Here is where you list and describe the services which you will be performing. Personally, I prefer to reference the written proposal which would have gone to the client before they chose to hire me, and note in the contract that “The web site will be built to the specifications detailed in the proposal dated xx/xx/xx.” If there was no formal written proposal, I cite “the specifications discussed and mutually agreed upon at our meeting on xx/xx/xx.” This may not be permissible in your country, though, so please check with a solicitor.
- Content. Note who will be providing the content (the text and images on the site): the client, yourself, or a copywriter/graphic designer. You may also wish to state that time spent editing the text content in order to bring it up to a basic standard of literacy will incur extra charges. This is in case you have one of those clients who thinks that submitting content written in text message speak, featuring multiple spellings of their own business name, is cute.
- Assignment of Project. Here you inform the client that you reserve the right to tap subcontractors as needed for certain areas of the project. Always include this in case an unexpected development within the project requires you to call in extra help.
- Web hosting and domain name registration. Clarify the web hosting arrangements for the web site. I have two paragraph templates, and I delete one as needed. One paragraph details the arrangements when I host the site myself on a third party account I have chosen, and one details the arrangements if the client already has a third party hosting account. More importantly, remind the client that you are not responsible for any losses of the web site, domain, or ensuing business due to their failure to renew their domains on time or to authorise you to renew the domains on their behalf.
- Completion date. State that you will work to launch the web site on or about the date that you have agreed with the client. Note that the launch date presumes that the contract has been signed and returned, the deposit has been paid, and that there are no unforeseen technical issues with the site. We have all had projects where the completion date comes and goes and you are still waiting for the client’s content: this is why you need to protect yourself with this clause.
- Maintenance and hourly rate. Clarify what maintenance you will perform after site launch within the costs of the contract and what maintenance will be performed based on your non-contracted hourly rate. If you have a “settling-in period”, which I grant the client for two weeks after launch, clarify that the settling-in period does not include massive structural changes which would fundamentally alter the site. For example, they can ask you to make minor changes to a page, but they cannot ask you to add an e-commerce shop.
- Legal– this is the part where you cover your backside.
- Note that you cannot guarantee that your work will always be completely perfect and error free (even though we like to think it is); and more important than that, note that you are not responsible for any damages or financial losses the company incurs. In other words, if you give them a web site and they still go under in a year, it is not the fault of you or the web site.
- You will, however, correct any clear and mutually agreed mistakes you have made while carrying out the contract on your own time and without incurring additional cost.
- I also note here that “if the Client or an agent other than Idea15 Web Design attempts to update the site’s pages, infrastructure, or source files in a way that causes damage to individual pages or the site’s architecture, time to repair web pages will be assessed at triple the hourly rate, and is not included as part of the updating time or this contract.” This is to protect your time from clients who think that FTPing into the back end and playing around with folders is a fun way to pass a rainy day.
- State the jurisdiction where any legal action pertaining to the project must be filed. For me, this is the Sheriff Court closest to where I live. What this means is that not only will you take the client to that particular court if they don’t pay, but any action they take against you must be filed in that location as well. A troublemaking client – and you will have them – would file a suit on the other end of the country just to be petty.
- In your legal bit, you should note that nothing the client will give you to use on the web site should violate any of the laws of your country; and if you are using a host in another country, they agree that none of their material violates the laws of that country either. Post-Safe Harbor, this is more important than ever.
- Copyrights and trademarks. Read “The Twisted Thing” for the language you should use to clarify the fact that you are not liable if your client has given you stolen goods – someone else’s copywritten material – as their own content. Discuss your Professional Indemnity Insurance policy if needed. This clause protected me from a client who, incredibly, got caught violating copyright in two different ways on one simple business web site. The first was a copywritten image, but the second was his entire product line itself, which apparently fell off the back of a lorry. His petty attempt to blame me for his Del Boy business model, including “it was your responsibility to tell me I wasn’t supposed to do that,” went nowhere.
- Copyright of web site. Here is more backside-covering in which you clarify who will hold copyright of the finished site. In the UK, the owner of a commissioned design is the designer and not the commissioner unless the contract states otherwise. Copyright of third party materials, such as fonts, remains with their creators.
- Abandonment of Project. From time to time, a client will hire you, contract for work, pay for it, and then disappear off the face of the earth. Other times, a project meant to take four weeks drags out into three seasons, and the only time the client gets in touch is to provide you with yet another excuse for why they are “too busy, darling”. Enough is enough. I introduced an Abandonment of Project clause in which I note that if the client fails to respond to me for a period of 30 days or more, or to get in touch when they said they would, the project is considered abandoned and is closed. If that comes to pass, I reserve the right to bill the client for the work done to date, which may take the form of returning their deposit minus the cost of the work done already. Some designers also note here that if a client wishes to re-open an abandoned project, an administrative fee will be charged.
- Payment of fees. This is where you very nicely state that if you do not have payment within X days of site launch, you will take the web site offline and the client will lose all rights to its use or duplication. Note that the client is responsible for any debt collection fees which may come due.
- Initial payment. Note the full cost of the contract. State that payment is due as follows: a percentage (I use 50%) upon the signing of the contract, and 50% upon site launch. Stress that no work will be undertaken until both the signed contract and the 50% deposit are received and the deposit is in the bank.
Like mine, your contract should evolve over time to reflect your actual experiences. Heed the contractual warnings that your fellow designers will describe as well.
Here are some great resources on web design contracts.