Watertight contract too lengthy? (Full Version)

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Tailslide -> Watertight contract too lengthy? (3/26/2006 11:09:43)

Hi

I've recently done some work for a solicitor in return for them drawing me up a decent contract.

I've got the first draft for the contract which consists of two documents - a specifications list (2 pages) which basically lists my charges, the price for the job concerned and a brief summary of the various phases of the design (eg Design Phase, Build Phase, Checking Phase etc) plus exactly when they pay me.

The other bit of the contract is the contract itself - it's about 6 pages long and very very comprehensive - going into copyright, my responsibilities, the client's responsibilities, what happens if they disappear, don't give feedback in a timely manner etc etc.

Thing is - most of my clients are small business people - I think that this lengthy contract will scare people off. Rightly or wrongly people tend to view long legalese documents as attempts to bamboozle them.

I have no problem with the separate specs pages but do you think I need to get them to reduce the long contract? If so how many pages do you think is the limit - two, three?

I want to balance protecting myself and the client against a clearly understandable document.

Suggestions appreciated.



Donkey -> RE: Watertight contract too lengthy? (3/26/2006 12:06:12)

The way we do things with our (non web design) business, is to have a separate terms and conditions document which is drawn up by an accountant and a solicitor. As you will appreciate this covers almost every possibility including the planet being destroyed by a giant asteroid and the second coming. We print this in very small type (approx. 6pt) on the reverse of our price list. We also print it on the reverse of our customer credit application form. When the customer first wants to do business with us they have to return an application form signed on both sides. On the back it says "I have read and understand your terms and conditions and agree to be bound by them".

Could you not do something similar i.e. have a separate terms and conditions document covering all the long winded stuff, and a short succinct contract that they sign which also agrees that they will accept your general terms and conditions.

You could just send them a written quotation with the terms and conditions on the back and ask them to sign one copy and return it to you. You could tell them that until you get the signed copy back you are unable to proceed because your insurance will not be valid.



spitfire -> RE: Watertight contract too lengthy? (3/27/2006 11:41:39)

This may already be included in what your legal boys or others have suggested so far. If so... just ignore me... I'm used to it[:(]

I've always seen this as a service - design/develop a website (perhaps ongoing maintenance) and a product - the website itself. Internet Copyright Law (which is a separate discipline and may not be in the skillset of contractual lawyers) comes into play. Usually copyright of the whole kaboodle rests with the site owner/person who paid for it. Sometimes a developer may have the opportunity/be allowed to put up "Site design by..." but that does not necessarily imply copyright of anything is vested in the designer.

I like to "warrant" with a client that I will not reproduce the design/look and feel for other clients no matter what business they are in. I ask them to warrant they will not sell or pass on the code or the design without explicit reference to me.

OK we know any site can be lifted by the pirates out there, but the idea goes down well - no problems from clients, seems to give them a cosy feeling[:)] and keeps me creative juices flowing [:D]



Tailslide -> RE: Watertight contract too lengthy? (3/27/2006 11:50:39)

Thanks Spit.

Although I've no reason to believe it's a correct legal argument - I've always quite liked the idea that the content supplied by the client remains theirs and whatever supplied by the developer remains theirs. I can't actually imagine why someone would want to hold onto the copyright of a site once it's paid for though... Having said that I want the right to include a screenshot in my portfolio so I'd better ensure that's in there somewhere.

I think it's a fraught issue with web design because if a client has copyright over a two-column, blue backgrounded layout does that mean in theory that you can't do any more two-column layouts with a blue background. This is why lawyers have big yachts isn't it?



spitfire -> RE: Watertight contract too lengthy? (3/27/2006 12:12:42)


quote:

ORIGINAL: Tailslide
... if a client has copyright over a two-column, blue backgrounded layout does that mean in theory that you can't do any more two-column layouts with a blue background...

Now you're being silly[8D]



Tailslide -> RE: Watertight contract too lengthy? (3/27/2006 12:19:38)

quote:

ORIGINAL: spitfire

Now you're being silly[8D]



Me? Silly? Me? Noooooo



spitfire -> RE: Watertight contract too lengthy? (3/27/2006 13:18:44)

Soooo... on the assumption that was a serious comment and in my defence m'lord.

Consider the artist, if you will. He has his own techniques for stretching the canvas, applying size (no, not width and height) and uses a particular paint mixing technique to provide the baseground for the piccie. He produces a masterpiece pastoral scene - clear blue sky, a few trees, some fluffy sheep dotted here and there. Then he sells it as an original with a commensurate price tag.

Is it unreasonable for the original purchaser to expect that he never produces exactly the same picture again?
I don't think so.
Is it unreasonable for the original purchase to expect that he never turns it into a limited edition, poster/teeshirt art or what have you, without reference back?
I don't think so.
Is it reasonable for the purchaser to expect he never again uses the same stretching, sizing, paint mixing and baseground technique?
I don't think so.
Is unreasonable for the artist to produce a different pastoral scene that happens to contains blue sky, trees, fluffy sheep provided is does not copy or emulate the original picture?
I don't think so.

Mind you the whole scenario is a wake up call for developers who use templates and just slot in client's words and logo - present company excepted, of course [:D]





dpf -> RE: Watertight contract too lengthy? (3/27/2006 13:45:45)

quote:

Is it unreasonable for the original purchaser to expect that he never produces exactly the same picture again?
I don't think so.
try it another way - what about the home builder who builds 20 identical models? does the first customer have an exclusive right to the design? more importantly, does the issue even arise? what if he builds one on the east end and one on the west end of town and the buyer, unaware of the other twin structure, "assumes" exclusivity" -s his assumption warranted and actionable? hhmmm i wonder. unless the contract specifically says that the design itself is the property of the purchaser and no dupes can be made, I would argue my right to make a twin.

The artist analogy is an interesting one but I dont think it fits - why? because of the long history in art - original painting vs. lithography and other printing techniques wherein the artist numbers the prints so you know precisely how many there are.

Im just reacting to this debate - probing my own initial reactions and interested in the discourse - a good argument is long overdue around this boring place.



dpf -> RE: Watertight contract too lengthy? (3/27/2006 13:48:48)

and another point..lol. while the copyright issue is an important one, I think the larger and more germain issue is one that the computer industry (where Ive done some consulting and seen the battles first hand) has long struggled - "scope" is this within the "scope" of the contract. In my experience in web design, it rears its ugly head all the time and only a contract that is specific can mediate it. scope? well, you start the job and suddenly client wants this and that for no extra money and your perception of the job is that it didnt include those things.



womble -> RE: Watertight contract too lengthy? (3/27/2006 14:01:19)

Ah, but your honour...

...if a purchaser is buying print of the painting (template with client's words and logo slotted in), could it be assumed, presuming that it is infact one of the artist's (web developer's) original works (templates) that the client (purchaser) is simply purchasing the right to display the painting (template), and that the purchaser (client) therefore can only claim copyright of the matchstick person's that he himself added on to the original design. (stretching the metaphor a bit thin, I know).

Of course scoundrel good-for-nothing artists (web developers) who simply trace the painting (slot the client's text into someone else's template) and pass the work off as their own are a whole other kettle of fish entirely....

Which then leads us back to the debate of a while back about whether you can infact copyright code, what constitutes a snippet of code and at which point is all this copyrightable? Who "owns" the tags that make up (x)html - the W3C, the web design community as a whole....?

quote:

I like to "warrant" with a client that I will not reproduce the design/look and feel for other clients no matter what business they are in. I ask them to warrant they will not sell or pass on the code or the design without explicit reference to me.


<devils_advocate>And how, my learned friend does one define in legal terms a look or feel, and similarly does the designer in question actually 'own' the tags and attributes which make up this code of which you speak?</devils_advocate>

Take for instance if you will the 'paint by numbers' matserpiece....on second thoughts, having muddied the waters stilll further I think I'd perhaps better rest my case there....[8|]

Artiists and purchasers? Clients and web developers? Who started this damned court action anyway? [8D]

Having now confused myself totally I shall now retire for the imbibing of a small medicinal beverage....

Edit: Grrr! Beaten to it by Dan! Houses? Now I'm really bewildered...[:-]



spitfire -> RE: Watertight contract too lengthy? (3/27/2006 14:41:48)

Look at that Tail.
Nothing for 24 hours now they've started to wade in. I'm beginning to get a complex - over to you lot[:)]



caz -> RE: Watertight contract too lengthy? (3/27/2006 14:51:13)

quote:

I think the larger and more germain issue is one that the computer industry (where Ive done some consulting and seen the battles first hand) has long struggled - "scope" is this within the "scope" of the contract.


Ah, scope creep: "Can you just add a gallery/forum/whatever?" - yes, but it will cost you more than the original agreed price. Eeek, all hell breaks loose. I haven't yet come across a legal term for scope creep - not one with less than 2,000 words that is.

Back to the house, sorry Womble, where architects are used to this phenomenon and cater for it with "Variations," where they will vary the cost and/or time of the project from the original agreement. This is clearly stated in their form of agreement, but clients are nearly always amazed at the final bill. [:D]



spitfire -> RE: Watertight contract too lengthy? (3/27/2006 15:43:17)

I signed off but hang on tho', there are some layman views creeping in here. I would rather hope my following comments are taken in the spirit of discussion rather than an argument.

Sorry, but I have had nearly 30 years experience of building and "architecture" (married to one) and helped to run the practice from the legal side.

The builder is an entirely different being to the architect. The builder may commission an architect to design him a "catch all" house. But if they are to be built in different parts of the town, the architect may need to vary the plans to take account of different planning and building regulations, fit with the surroundings or bring in a structural engineer to help with different foundations depending on the subsoil and bedrock structure. So it is unlikely you will get truly identical houses.

A builder may just try to adapt some plans he could have paid for some years ago or some plans that fell off the back of a lorry, were produced by son/daughter/friend who is studying "architecture" (quite possibly technical drawing only at the local college), or from a piccie/description provided by the client (poor fool).

If an architect (or even a builder for that matter) is commissioned to build a one-off structure, then it is incumbent on them not to reproduce that structure exactly AND charge another mug for an original design.

I do believe I covered the points about limited editions, prints/poster/tee-shirt, even lithographs, for want of another word, in my original points.

No arguments at all about scope-creep. Variations are one way of covering it. But, if nearly every potential reason for additional cost is not covered up-front, clients will always complain even if they are buried deep within a contract. The building industry has been trying to find a way to cover that aspect since mud huts and litigation became a buzz-word. If web developers can craft a contract to deal with those aspects effectively, then the building industry will be delighted if you share it with them.

And finally, architects have to live with their mistakes (their estates/descendants are liable for any problems for 70 years after the lead architect is dead, at least in the UK). They have to buy expensive Professional Indemnity Insurance based on the value of the structures for which they have been responsible throughout their professional life. They are not allowed to practice architecture without that insurance and their descendants, often, have to carry on paying that insurance for many years. Hardly a fitting Profession with which to compare the business of web development.



womble -> RE: Watertight contract too lengthy? (3/27/2006 15:47:20)

Artists? Houses? Architects? I'm now well and truly confuzzled Uncle B and shall retire from this thread until such time as you've all reached a coclusion....[:D]



spitfire -> RE: Watertight contract too lengthy? (3/27/2006 15:50:40)

Yeah well, womble dear, this thread is suffering from scope-creep just like so many others[;)]



rdouglass -> RE: Watertight contract too lengthy? (3/27/2006 16:07:47)

I personally use wording similar to an EULA in the sense that they are purchasing a license to use the software I develop on 1 web site and cannot be reproduced, dis-assembled, re-sold, copied, folded, spindled, mutilated, blah, blah...

Then you "customize" the client site using their content so it is a unique work.

That solves most of my concerns about those particulars anyways.

</$.02>



erinatkins -> RE: Watertight contract too lengthy? (3/28/2006 9:55:35)

In all seriousness I think you really do need to have a solid contract that will cover you if you get a client from -----.

We had a client come in show a design they liked that was someone elses - explained it would need to be changed because you can not straight out copy someone elses work - we made changes they liked parts - made more changes - got approval - then they changed mind and wanted more changes made - but did not want to pay for it. They did not understand web work was not the same as doing mockup in paintshop.

Our new contracts cover our time & specifies that if you make changes after approval you will be charged for it.




Tailslide -> RE: Watertight contract too lengthy? (3/28/2006 10:14:45)

What I've decided to do is really a two-level solution.

The vast majority of clients will get a two page Agreement which has the agreed specs for the website, the process and payment points etc then all the details about payment terms, copyrights, disclaimers and a list of my prices in general. Scope creep is covered in the document - I've stated that once the design and content is agreed then the only latitude they have is for text tweaking or changing images etc. Any layout or structural changes or additional pages are extra and will be charged at the rates listed.

For cases when the client looks like they're going to a be a real PITA from the word go (and usually I've found that you have a pretty good idea early on) then they get the 8 page lawyers' special. Or if I get a big job with large company then likewise, they'd get the works.



Nicole -> RE: Watertight contract too lengthy? (4/19/2006 18:19:57)

Why is it though that our contracts are so long? Mine is about a dozen pages with 5 annexures.

I don't buy many things very often that cost amounts in the thousands, so is it normal to be faced with a twelve page document when doing so?

Does an Architect have a lengthy contract? A builder?



dpf -> RE: Watertight contract too lengthy? (4/19/2006 21:39:20)

quote:

Why is it though that our contracts are so long?
because you made them that long????



BobbyDouglas -> RE: Watertight contract too lengthy? (4/19/2006 23:36:52)

Just keep in mind, that the longer your contract is, the longer it is going to take for someone to sign it.

Every *smart* client I have had, spent at least an hour reading over their 1-3 pg contract and always requested simple changes that either explained something in more detail, or related better to his/her website. Imagine having to re-do changes within 12 pages of information... Not every contract needs to be more than a single page. I was talking to someone a couple weeks ago who works for PRG Schultz, he told me that he sends out a 1-page contract for his clients.

It would be interesting to see what some of these longer contracts look like.



Nicole -> RE: Watertight contract too lengthy? (4/20/2006 6:17:16)

quote:

It would be interesting to see what some of these longer contracts look like.


I'll spare you all by not posting the complete content of my contract, it was modeled on a readily available one online though, the headings are:

1. Authorisation
2. Standard Hosting Service
3. Domain Registration
4. Disbursements & Cost Recovery
5. Training
5.1 Training Provided
5.2 Training Not Provided
6. Base Package / Graphic Creation / Emmail
7. Text
8. Links
9. Cross-Browser Compatibility
10.Photography
11. Scanning
12. Forms
13. e-commerce
14. Secure Certificate
15. Merchant account
16. Payment / Work Flow
17. Client Amends
18. Maintenance Agreements
19. Third Party or Client Page Modification
20. CD Burning
21. Search Engine Optimisation & Registration
22. Assignment of Project
23. Additional Expenses
24.Copyrights & Trademarks
25. Age
26. Limited Liability
27. Indemnification
28. Laws Effecting Electronic Commerce
29. Ownership to Web Pages and Graphics
30. Design Credit
31. Non-Disclosure
32. Client Referral Commission Program
33. Completion Date
34. Cancellation
35. Force Majeure
36. Arbitration
37. Entire Understanding

Appendix A - Glossary of Terms
Appendix B - Areas Serviced
Appendix C - Price List
Appendix D - Scope of Work
Appendix E - Maintenance Agreement
Appendix F - Approved Contractors

Nicole



Mojo -> RE: Watertight contract too lengthy? (4/20/2006 10:22:13)

Wow. A lot of stuff that can go wrong there... In the U.S. you would want to make sure you were fully insured up.



Mango Himself -> RE: Watertight contract too lengthy? (4/20/2006 13:54:37)

just my 2 cents:

the original question in this thread was:
quote:

do you think I need to get them to reduce the long contract?


Nicole says that when someone is purchasing something in the thousands of dollars, pounds, etc, they should take the time to read the contract and I agree.

Believe me, when an idiot tries to sue you because he wasn't able to sell 300,000 dollars because your website design does not "project" the product correctly, you will wish you had a a long, detailed contract.

Bottom line: if they are too busy to read a contract, you don't want to do business with them

PS Nicole: see? I DO agree with you in some things! And...I never said Fosters! Peace?



yb2 -> RE: Watertight contract too lengthy? (4/20/2006 14:03:48)

Sounds like a small novel.

I always thought that unless the client had a piece of paper with "what they want" (pie in the sky) and your signature on it saying you'll provide "what they want", then you don't have to do it and you don't have to mention it in any paper work or worry about legal implications (you won't get sued successfully for something you didn't do and never agreed to do)

As long as you've defined the project stringently and got a piece of paper with their signature on agreeing to that and the price, then that's all you need on your side.

That's what I reckon anyway, not having been sued (yet).



rdouglass -> RE: Watertight contract too lengthy? (4/20/2006 14:46:33)

I said this in another thread but it applies here as well:

I don't personally like the idea that you spell it out up front what is *not* included. I work under "strict interpretation" in the sense that if it is *not* listed as an included feature or product then it is *not* included. I explain what is included and don't try to cover what's not. There are far too many 'not's IMO for most contracts to cover them all and if you try, you'll miss a few and then clients will say something to the effect "Well, you didn't say it wasn't included."

Oh, I am always open to negotiations but my fall-back is that if it's not listed, it's not included.



Mango Himself -> RE: Watertight contract too lengthy? (4/20/2006 16:14:30)

As I said in the other thread, you are right. Yet, there are always nuts with too much money to waste who hire a law firm to try to cork the money they didn't make with their product from you.

Only with a bulletproof contract was I able to get out of a "damaged renvenue" situation. And, the law says you may be "guilty by omission" So, your approach that "what's not there, is not implied" can't hold water in a court of law when dealing with hardened lawyers. Law in the US is based on precedents not rules. If a designer lost a similar case, rest assured you will too.

Amazing as it may sound, in the US, people can sue you for just anything they want. Will they win? Not necessarily. Yet it will cost you money to defend yourself. A simple $2,000 website could land you in a civil court where a deranged customer says he lost thousands in revenue because the site you designed prevented him from selling his product.

You aere then forced to retain a lawyer and that costs money. If it all were small claims, it'd be a different story.



dpf -> RE: Watertight contract too lengthy? (4/20/2006 16:32:22)

quote:

So, your approach that "what's not there, is not implied" can't hold water in a court of law when dealing with hardened lawyers. Law in the US is based on precedents not rules. If a designer lost a similar case, rest assured you will too.
there is a lot there to disagree with..... hardened or softened lawyers, makes no diff. us law is based upon laws (rules) which gain clarity and refinement through subsequesnt court decisions. however, a ruling from a particular local court on a particular case is the weakest of all "case law". appellate court ruling are powerful clarifications and shapers of law but "this guy won his suit" has applicability unless the pattern of fact is identical and any first year law student can usually shoot that full of holes.

yes anyone cn file a law suit next step is a requirement to meet minimal levels of proff in order to move to trial - yes if theo ther guy has more money and money anger, he can force you to get a lawyer but hell, that nut could be your next door neighbor and his issue be your leaves falling on his lawn.

under US law, a contract is limited to what is included - there are no, repeat, no implied inclusions in contracts as every contract is seen as a unique agree ment between two parties.



Mango Himself -> RE: Watertight contract too lengthy? (4/20/2006 17:08:04)

quote:

yes if theo ther guy has more money and money anger, he can force you to get a lawyer but hell, that nut could be your next door neighbor and his issue be your leaves falling on his lawn.


Dan, I agree with you. Unfortunately, in the process of clearing all this, you amy end up spending a lot of money defending yourself

We are straying from the original issue. Should a contract be lengthy or not? I say it should be as long as you feel comfortable. Personal experiences aside




dpf -> RE: Watertight contract too lengthy? (4/20/2006 17:11:25)

i agree with rdouglas on the issue of what is not included- that is pointless and might even open some door you dont want opened. if you itemize what is not included, is what you didnt include in the nots, included in the contract 9 hows that for circular reasoning?)



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