Whereas, the party of the first part, hereafter known as The Party Of The First Part, shall agree to enter into agreement, hereafter known as The Agreement, with the party of the second part, hereafter known as The Party Of The Second Part…
What does it all mean? Why is it so confusing?
As a designer, you speak one language (HTML, CSS, Search Engine positioning, etc.). Lawyers speak a different language. They don’t have to learn yours, but because you are the party of the first part (or is it the second part?) and you will be issuing contracts, you should learn to understand theirs.
So let’s start with some contract basics…
A contract is a signed, legally binding agreement between you and your client. It defines your responsibilities (design), the client’s responsibilities (payment), and the requirements and limitations of the job. As a professional designer, you will have a standard contract. It will have a large section of “standard legal stuff” where you fill in the blanks (your name, client’s name, etc.). It will also include a place where you will insert the specifics of the job from the proposal.
Here is some sample information that should be in the “standard legal stuff” section of your contract…
a) Who’s who…
Your name and client’s name, or the names of your businesses
b) Responsibilities of both parties…
What services you are going to provide (Web site design, Search Engine submission, graphic design, etc.) What your client will provide so that you can complete your task (graphics/photos, information, etc.) and what your client will pay you for your services.
c) Special considerations…
Limitations on the work you will do, fees for additional work, etc.
d) Confidentiality…
You agree not to give any of the client’s proprietary information to anyone. Your client agrees not to give any of your proprietary information to anyone.
e) Copyrights…
Who owns the work products (Web site, graphics, text, etc.) when the work is done? Does the client have unlimited rights to sell and distribute these, or is he limited to just the one copy on the Web site? Do you have the ability to use the same design and graphics for another client?
f) Indemnification…
If your client gives you material to use on the site that belongs to someone else and you get sued, what happens? The contract should include a clause that says the client will assume financial responsibility if you are sued because of his actions. He should also be protected from you.
g) Termination of contract…
What happens if one party wants to end the agreement? Do you get paid? Suppose you are the one who wants to quit? Can you?
h) Limited warranty…
If you run into problems and cannot deliver the final product, what are the client’s legal options? Can he sue you for millions of dollars? Your contract should limit your liability to just the value of payments that were made to you. The client should be able to get his money back, but no more.
i) Governing law…
Contract laws vary from country to country and state to state. Where is your contract defined?
j) Severability…
If one paragraph of this agreement is declared invalid, the rest of the agreement is still in effect. This is necessary in the event that a court declares part of your contract invalid.
k) Force Majeure…
The client cannot hold you responsible for events beyond your control (earthquakes, floods, personal tragedy, etc.). However, you are still responsible for completing the work after the problems have passed.
When you take all of this legal stuff and incorporate the contents of your proposal, you will have a very complete contract to give to your client. It will define who is responsible for what, what work is to be done, how much you are to be paid, etc.
Some designers prefer to work without contracts. They feel that contracts are impersonal and that a handshake is sufficient. This sounds great until you get a client who decides not to pay you. It happens all the time. And if you get stuck in a position like this, there is little you can do about it.
Never accept a job without a contract. You have no legal protection without one.
And don’t even consider writing your own contract.
Contracts are written in a very specific language that only lawyers and judges speak. The language is very clear to those who speak it. Many words that you and I use everyday have a completely different meaning when used in a legal context.
If you write your own contract and you have to go to court to enforce it, the slightest mistake in the legal language can render it invalid — or may even turn it against you. Your contract should come from a lawyer and it should reflect the conditions and events found in your business. But having a lawyer write a Web site design contract for you can be fairly expensive.
There are some free contracts available on the Internet. They tend to be very simple and most don’t address all of the problems you will run into. There is also no guarantee that these freebies were written by legal professionals. Do your research carefully.
SIDEBAR
“Start Your Own Home-Based Website Design Business” includes a contract that my lawyer and I developed specifically for my business, Website Design Biz.com
We started with a standard services contract, and then I had my lawyer add clauses to address every problem that I ever faced and every problem that I heard that other designers had to face. And when it was complete, I went through it clause by clause and translated the “legalese” into English. You are free to customize this template for your own use.
Well-written legal proposals and contracts are essential to the longevity of your business. They protect the obvious — your time and finances. However, they also protect your enthusiasm — a precious asset that is not always valued in the early days of your business.
A constant struggle to make ends meet, due to avoidable mistakes or omissions in either the proposal or contract, is psychologically draining. This type of situation can make you question your ability to run your own business. Don’t get caught in a downward spiral. Spend the necessary time to get things
right at this critical beginning stage!
There are so many variables to consider when you are starting up your own business. This Course highlighted a few of the more important ones to get you off on the right track. It’s now in your hands.
OK,
Taken from : The Webmaster Business Masters Course
Build Your Webmastering Business While Building Your Client’s Business