What to Include In Your Design Contract

No matter what your profession, be it programmer, web developer, graphic designer, doctor, lawyer, plumber or electrician and be you freelance or otherwise, if you do not have a letter of contract and/or standard terms and conditions for your clients to sign prior to starting a project, YOU ARE BEING STUPID. Sorry to be so blunt, but you know I’m right.

Why have a Contract

So why do you need a letter of contract and/or standard terms and conditions (just ‘contract’ from now on)? Well, at some point, no matter how nice you and your clients might be, something will go wrong. Having a signed contract will both protect your business and provide a clear understanding of responsibilities between yourself and your client. A good contract prevents confusion and protects everyone’s interests.

One important point to remember, a contract is only a contract once it is signed by the client and accepted by you. So don’t forget to get the contract signed before beginning the project.

Writing your Contract

Writing a contract isn’t easy, there’s a lot to consider, but it doesn’t have to be really hard either, just follow the suggestions given here and you should have a reasonable contract at the end.

One thing to remember when writing your standard contract is the fact that it is your, “standard contract”. Some client’s may have specific requirements, so bear this in mind when considering what to include.

Standard Contract Essentials

Use, “Plain English”

Don’t use legal and technical mumbo jumbo. Keep it simple, clear and precise.

Definitions

Define technical and legal keywords. Clarify any terms that could be misunderstood or misinterpreted by the client. The client needs to have a clear understanding of your terms and conditions and understand their responsibilities.

Project details

State clearly and precisely the objective of the project. Give details of:

• Final deliverable.
• Interim points.
• Estimated time to project completion.

Proposal time limit

Give a date by which the proposal must be accepted or rejected. This gives the client time to consider their position but also prevents too much procrastination.

Fees and other charges

This is important. You’re in business to make money, just like your client. Stipulating your fees and charges lets your clients know exactly what they are paying for. In this section include:

• Retainer required prior to start of project.
• Final payment due date prior to the release of deliverables.
• Additional potential expenses, i.e., printing costs, PayPal fees, shipping fees, etc.
• Additional fixed costs, i.e., stock photographs, etc.

Revisions and Additions

Always keep in mind when accepting any revisions and/or additions to a project, “time is money”. If you accept revisions and/or additions for free, you are not only loosing money but giving the impression you are happy to work for free. Or to put it another way, your time is worthless. Include details of:

• Define what constitutes a revision (i.e., a change < 15% of the project).
• Define what constitutes a project rewrite (i.e., a change > 60% of the project).
• Number of free revisions accepted (no client is perfect and there will always be some mistakes in the design).
• Charges for additional revisions.
• Charges for additional post-contract changes.

• Excess time charges. If you email work to a client it’s reasonable to expect a reply within a few days. What do you do if the client takes a few weeks?

Maintenance and Updates

If the project is for something requiring maintenance and updates, such as a website, who will do the work and at what rate?

• Should the maintenance and updates be part of a separate contract?

Responsibilities

Stating the areas of responsibility for the client and yourself is very important and must be clarified at the outset. Include responsibilities for:

• Printing.
• Typographic errors (very important).
• Graphical errors (can be costly).
• Omissions.
• Supplied materials. You may supply materials to the client or the client may supply materials to you. Who will be responsible for any loss or damage and what level of compensation is acceptable?

The “right” to Promote?

Do you have the automatic”right” to promote the work you’ve done for the client in your portfolio? In my opinion, no you don’t, and that may be the view of many clients. So, if you want the right to promote, make sure it’s in the contract.

Copyright and Trademarks

First a few items to think about:

• Who will be responsible for infringing any Copyrights or Trademarks?
• Who owns the artwork?
• Who owns the design?
• For what purpose can the artwork and design be used, i.e., can the client use the artwork on tea-shirts for advertising purposes?
• An authors/artist’s copyright is owned by the author/artist and is protected from the moment it is created by the 1976 Copyright Act. This protection covers the work for the artist’s lifetime plus 70 years. If agreed to in writing, the copyright may be assigned elsewhere. Also, original copy/artwork belongs to the author/illustrator, regardless of the licensed rights, exclusive or otherwise unless it is purchased explicitly and separately from the rights.
• Remember, original copy/artwork cannot be changed without the creator’s approval. Modifications constitutes creating a derivative work, which breaks the law. For further up-to-date information about copyright law, visit the United States Copyright Office or The UK Intellectual Property Office.

So, you need to stipulate that anything supplied by the client is the clients responsibility and you are not responsible for any copyright for trademark infringements.

From the clients point of view, they are buying a finished product and will probably assume they own the finished product, but do they really? Any content such as articles or graphics which is licensed may not be owned by the client and have strict usage terms.

This is a very import point and should be clarified with all concerned.

Confidential information

Everyone has the right to keep certain information private and confidential, including business. This is especially important when working with third parties. So include a clause about confidentiality.

If your lips would keep from slips,
Five things observe with care:
Of whom you speak, to whom you speak,
And how and when and where.
— Unknown.

Jurisdiction and applicable law

If you are working with clients internationally you need to stipulate which countries laws govern the contract.

“These terms are governed by English law. The English courts shall have exclusive jurisdiction over any dispute relating to these terms.”

Contract Termination

As Robert Burns’s once said “The best laid schemes o’ mice an’ men…”. Sometimes things just don’t go to plan. It’s unfortunate but these things happen, so state what happens in the event of contract termination, specify the responsibilities of both yourself and the client. Why? Because both parties could be responsible for termination of the contract, you may become ill and so be unable to complete the contract within the specified time, the client may simply change their mind.

• Include any termination fees.
• Include any compensation requirements.
• Should advance payments be refunded?

A final word

A good working relationship with the client can outshine any contract. Problems do arise and a little understanding combined with a bit of give and take will solve most problems to the satisfaction of both parties. Try not to get to the point where you need to drag out contracts. A smile combined with good intentions and the willingness to overcome obstacles is all that’s required.

Getting the client involved in the whole process helps considerably. Remember, the client has come to you because you’re the expert, so brief them fully, make sure the client feels part of the team. Being part of the team makes for a better relationship and removes potential problems and obstacles.

Notes:

Deposit or retainer? In some countries a deposit by law is refundable. If the client cancels the project you would be required to refund any deposit. Substituting retainer for deposit eliminates having to stipulate that deposits are non-refundable.