Yes You Need A Good Contract

Hello folks. Now that my Dad/lawyer and I have rewritten my contract for the umpteenth time, I think it’s finally in a great state to share with all of you. Please feel free to use whatever you want from it in your contract. And yes, you need a contract. No matter what you do out of love 🙂 it’s still good to have something countersigned on actual paper just in case. Your worst enemy is actually not your client but a vague contract or no contract at all. Nothing can bite you in the ass like that.

Now let’s look at some of the more important or interesting clauses we have in here.

Section 1a
Here we define that the contracted work will be laid out in section 1d but that we recognise that things come up during the project. We call these “options” or “overage,” and this assures that neither I nor my staff are working for free. Options are add-on features or tasks, such as “logo design” or “online auctions” that the client may or may not want. Overage is that annoying extra work you sometimes get because the client changes his or her mind, text, or graphics and expects you to just keep redoing the same thing over and over for free. No no no. 🙂 You want your contract to say the same kind of thing, even if you don’t like my nomenclature, because you absolutely do not want to be stuck with a vague contract. You want them to know up front you are charging for anything over and above what you are contracting to do.

Section 1d
This is the section where I put in detail exactly what we are contracting to do and any options we’ve already priced out. Since technologies and minds change, we also lay out very clearly here what languages we are using, what it is designed to be compatible with, what server software we’re using, and the like. This saves us from someone thinking that moving a site from UNIX to NT is free or even moving from one NT server to another is free. The paragraph after that details what file formats we require and states that anything outside of those may incur extra cost. That saves you from those lovely clients who send you Quark Express documents when you need text in Word and graphics separately and think that your time to extract what you need is free. It also assures the client that if they give you exactly what you need how you need it, there won’t be any surprise charges.
Section 1e
This clause is the siamese twin to the rest of section 1 in that it reiterates that anything NOT contract is not necessarily included. This saves you from people who “assume” everything from “I thought that was going to be an interactive Flash file” to “I thought you were going to create a tiny simple button.” If we don’t say we’re doing it, it may cost you extra. The end.

Sections 2a-2d
If the client pays on time and in full, they get the rights to everything we’ve done, as in they now own it all as a work for hire. However, we have the right to reuse bits of code and why not since everyone who does custom sites (like we do) is probably reusing at least SOME code in every site. We don’t want any client coming back to us saying “hey I thought I owned the rights to email people from my site.” That’ll put ya out of business. We also say that we keep the right to show our work for our marketing; for example, we could print a color brochure that shows screen shots. Section 2e
Having my company’s logo and link has been becoming less and less important to me over the years of doing this. This is mostly because I’ve found that most of my clients come to me from (in this order) finding me on Yahoo, being referred by a client, being referred by a friend or family member, and then coming from a site we did. So nowadays, I still like to sign our work with our logo and link, but if someone wants to bury it in the site, I’m OK with that.

Section 3a
Our warranty covers everything we build and create as long as it hasn’t been messed with by anyone outside of us. So if the client hires another company or a high school kid or anybody else on the planet, and that person goes into the site and takes out some ASP code or who knows what, we will NOT fix that for free. I think this makes us look “good” since people like to know that we back our work yet at the same time we don’t get stuck fixing things for free if we didn’t break them.

Section 3b
This section is weird as you may not have seen anything like it before (or maybe you have). This clause talks about what we’ll do if something we created turns out to infringe someone’s copyright or trademark. You may not want to “go there” in your contract if you are not comfy “going there” and the client has not asked for it. But if you like saying flat out what you’ll do, you may want to check out what we say we’ll do. Just make sure you clearly say this only relates to work YOU’VE created and NOT any artwork, text, or the like provided by your client. You don’t want to accidentally be responsible for their crap by having a vague contract!

Section 4b
This one was suggested by a very nice consultant I met through 🙂 This allows us to basically refuse to put up really anything on the site that we think is illegal or bad taste or the like. Obviously, if you’re making porn sites, I can’t imagine what this might be :), but for those of us doing corporate and e-commerce sites, you may want that in there. I’ve actually been doing this all along – I like to warn clients if something seems wrong or illegal, but now according to my contract, the client has to be OK with me having that kind of “final say” in a sense.

Section 6
Hey just make sure you change the state and county to yours unless you’d like to pop by lovely Suffolk County for all your lawsuit needs. 🙂 Do NOT change this to where your client is located. You are doing business where you are located even if your client is in another county, state, or country. You are doing that business under the laws where you work and you don’t know poop about the laws anywhere else (it’s just safe to say that). You also don’t want to have to travel to Florida to sue someone if you live and work in Maine. Dad (aka my attorney and yes he’s a real attorney) says that anybody pushing to change this clause to their location thinks they might be sued and doesn’t want to have to travel or find an out-of-state attorney. 🙂

Section 7
Get it in writing. Everything. Email, fax, letters. Anything that is a “handshake” or “gentleman’s agreement” outside of this document or anything else in writing doesn’t exist. This saves everybody from he said/she said type stuff down the road. This keeps you from the old “but you said you’d…” whether or not it’s true. Put it all in writing. I use email mostly, so if I send a client a set of options or proposal as a PDF, spreadsheet, or email, I tell them they MUST write back a full sentence saying they OK us to do X extra work for $Y. Section 8
So what happens if the client cancels? Doesn’t pay on time? What if you mess up? This clause details everybody’s rights in each scenario. We will be changing this clause soon to clearly state that a client who cannot abide by the time frame in section 1b and does not get written/emailed permission to change the time frame is in breach of this agreement. Why? Well I don’t know about you, but sometimes our scheduling is tight. If the client just thinks they can lag and lag and take months to do something that was had a real deadline, well I’d like that client to now consider that they may be in breach of the contract. I have a client currently who was supposed to OK the site design in early January so that the site could be ready for testing by late January. We are STILL working on the design and my programmers haven’t even started their work. I’d like the contract to be clearer that this guy has breached the contract. That would allow me to cut him off OR make it clear that he now has to work around our schedule.
So those are the important bits with most of the war stores of why they’re there taken out. 🙂 Hopefully reviewing our contract, what’s in there, and why will help you create an excellent contract that will cover your business ass quite well. All of this may sound really anal, but the day you have a problem with someone is the day you’ll see why we’ve done all this. Once upon a time, my contract was barely 3 pages long. Now it’s nearly 7 because vague stuff put me in too many bad places and made me eat costs I never should have had to. I’m hoping you can learn from our 5 full years of contract evolution.

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