Contracts: Single and Multi-page (Full Version)

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_gail -> Contracts: Single and Multi-page (9/10/2002 9:24:21)

What kind of contracts do you use: multipage or single page? Or do you have two contracts and select which to use based on the size and cost of a job?

I recently adapted and used the contract mentioned in the Going Pro article:

http://www.glassbottom.com/contract.html

I think it sorta overwhelmed the first client I used it with but, because of the type and cost of the job, I felt I should cover all bases. But I' m wondering if this contract would be an overkill for a small job.

I' d particularly like to hear about single page contracts and some of the verbiage and points covered.

thanks, gail



abbeyvet -> RE: Contracts: Single and Multi-page (9/10/2002 9:35:48)

Contracts always scare the life out of people, they are sort of meant to - they focus the mind. That one, though long, is written in very clear terms and quite a friendly tone and I like it. I have adapted it also and though some have expressed dismay at the size of it when asked to read and agree to it nobody has ever had a single issue with it once they did. I think they generally appreciate its clarity and the way it puts the onus on both parties to work to ensure a sucessful outcome.

It is difficult to make them short without making them meaningless though there are a whole lot of sections in that one that could conceivably be rolled into one. That is all the stuff that is specified as not being included could be listed in one heading. I list them seperately more as advertising than anything else [:D]



Thomas Brunt -> RE: Contracts: Single and Multi-page (9/10/2002 15:47:52)

I think everything needs to be short and clear up to and including the point where you agree in principle to move forward witha project.

When you have that agreement, it' s usually a good idea to put something in place that protects you. I don' t think anybody is going to balk at that.

The danger in big proposals and contracts isn' t that they result in a " no." It' s that they result in a " let me put this over here, and I' ll read it as soon as I get the chance."

Soon, a piece of paper lands on top of the big proposal over on the corner of the desk. Then another, and another. You call once, and the prospect tells you she/he will read it later that day. You call again, same answer. A year later, the prospect is cleaning her/his office and stumbles upon your proposal and says " Oh yeah, I was going to have those guys build me a web site!"

Get to " yes" first. It doesn' t have to be (and probably should not be) legally binding at that point.

It' s best then if you go over the contract with the client. Face to face if possible. Phone will do if not. This meeting doesn' t end with you leaving the contract for further reveiw. It ends with a signature.

t



Nancy Nelson -> RE: Contracts: Single and Multi-page (9/11/2002 16:13:02)

Along that same vein, I' ve been thinking about buying Proposal Kit [link=]www.proposalkit.com [/link] but would like to hear from someone who has bought/used it...




barry -> RE: Contracts: Single and Multi-page (9/11/2002 16:48:34)

Nancy,

I bought the full PK and it blew me away! It took me a few hours ( 4-6) to go through it! It covers every possible question, scenario, legal quirk, and technicality you can imagine.

You can use it for a small job, 1 pager, or you can create 50-75 pages for a very corporate professional proposal. I can spend so much time doing the full package that I could have the site done [:)].

I also has a great questionnaire that has helped me greatly. I don' t do sites regularly but it has helped me evaluate if I even want to be bothered with some folks after they answer (or don' t) the questionnaire. Do you need the full package? I guess it would depend on how many sites and the scale of the work you do. I only use the 5 pager [:@]

It has also helped me be consistent with pricing also.

Hope this helps.

Barry



_gail -> RE: RE: Contracts: Single and Multi-page (9/13/2002 12:45:43)

quote:

ORIGINAL: abbeyvet

That one, though long, is written in very clear terms and quite a friendly tone and I like it. I have adapted it also and though some have expressed dismay at the size of it when asked to read and agree to it nobody has ever had a single issue with it once they did.


I too like this contract very much. It puts forth the team approach between designer and client. I think it also is well suited to educate a client who is often totally ignorant of what is involved in web design.

Still, I think Tom raises a very good point. It can' t be just plopped down on someone' s desk. I think you really need to walk a person through it after you apprise the client ahead of time that a contract of it' s nature is coming their way. Unfortunately, not one of my clients yet has been someone I can sit down face to face with.

I also think it may be an overkill for a small job so I' m going to condense it.

Thanks all. Great help, as usual!

gail




drray -> RE: Contracts: Single and Multi-page (9/19/2002 14:45:44)

I' m an attorney and law professor most of the time; I do web site design mostly for fun (and, occasionally, for profit). Initially, I wasn' t even going to look at the contract that is the subject of this thread, simply because I am hard pressed to think of the circumstances under which I might actually use a contract I could find on the Internet. But everyone seemed so enthusiastic about it that I thought I' d have a look.

First let me say that what you' re about to read should not be construed as legal advice. I don' t practice law over the Internet. Second, let me say that if you' re one of the many who doesn' t care for lawyers and who thinks we only create messes, then you probably shouldn' t read on. Having said that...

The contract is OK, but it has some holes in it that could cause serious problems. It also, in my opinion, says a lot of things that need not and, legally, should not be said. For example, it seems rather ambiguous on the subject of web hosting. On the one hand it says the client can choose a host, but then it goes on to heartily endorse and recommend a host that it seems will be the default host if the client doesn' t choose one. The contract language comes dangerously close to a warranty, and an express one at that. If you want to warrant a web hosting service, I' ll gladly take your warranty...it gives me yet another claim to assert against you if I' m not happy down the road.

The contract uses legal language inconsistently and, at times, without really seeming to understand what the language means. For example, in some places the Client agrees to " hold harmless" or " defend" the Developer; in other places, the Client also agrees to " indemnify" the Developer. Which language would you prefer? (Personally, I want someone to " defend and indemnify" me...all the rest tends to be legal mumbo jumbo). Note that contract ambiguities will almost always be construed against the contract drafter (e.g., YOU). Also, did I miss it, or is the term Author not defined anywhere in the document? I can' t recall.

The contract is silent about jurisdiction, venue, and choice of law for the most part. There is a binding arbitration clause there...enforceable in some places under some circumstances; not so in other places. Nothing in the contract I saw that dictates where the contract is deemed to have been made, although there is a provision saying you' ve got to be of legal age to make a contract in Florida.

Can you use this contract? Sure. Will it work as you intend? Maybe. The only advice I' ll offer is this. If you' re a professional developer, invest the money in having a contract done for you by an attorney licensed in your home state. Yes, lawyers are a pain. Yes, we cost money. Yes, it' s cheaper and faster to take something from the Internet and punch it up so it sounds like what you want. And yes, the chances are good (hopefully) that you' ll never really need to find out just how good your contract is in court.

But if the day comes that you do...trust me, I' m a lawyer...you' d rather have a contract that will really protect you. Frankly, as a lawyer, I make more money if you don' t have a good contract. Court fights are much more lucrative for me than drafting contracts.

Good luck to all of you!

Dan Ray, J.D.
Assistant Professor
Eastern Michigan University



barry -> RE: Contracts: Single and Multi-page (9/19/2002 15:37:24)

Hey Dan,

What do you use? Me thinks thats why most people are afraid when I pull out the 5 page basic.

I will admit that I have a friend that is a lawyer, and he tells met that a good lawyer can snake, weasel, wiggle and squirm out of almost any contract if there is loot to be had [>:], so if I give my next prospective client a fifty pager (that almost covers me in the continental US and VI and US air space, only on Fridays before 12AM and if brussel sprouts are in bloom) then I would most likely would not be designing sites at all.

So, when i swim with the sharks I will hire a web versed shark lawyer.

PS: Do you do work in MD?[:)]

Welcome to the forums!

Barry



drray -> RE: Contracts: Single and Multi-page (9/19/2002 17:08:13)

I use a contract I' ve written that is specific to each client/project. That' s easy for me to say, of course, since I know how to write contracts. It is true that there isn' t such a thing as a bulletproof contract. I don' t write a contract with the intent to even try to make it so. I write a contract so that it: (1) clearly, simply, and efficiently reflects the mutual intent of the parties; and (2) contains as much legal protection for my client (here, that' s me...and you know what they say about lawyers who represent themselves) as I can possibly put into it.

A contract need not be 50 pages long to do that. I can write a " 5 pager" (give or take a page) that says what needs to be said. Precision and accuracy (not verbosity) are the hallmarks of good contract drafting. It really isn' t magic. A contract is nothing more than a document that reflects the mutual intent of the contracting parties. As long as a court can look at a contract and figure out what that intent is (and as long as the intent is not to violate the law or public policy), the court will give effect to that intent.

Sorry, Barry, I' m only licensed in MI, KS, and MO. And the truth is, I try to work as little as possible![:D]

Let me know if I can be of more help.

Dan



abbeyvet -> RE: Contracts: Single and Multi-page (9/20/2002 9:39:27)

I really, really hope that I will never end up in court with any client!

That was a great post Dan, and it is terrific to get your advice. I would love to be able to have a new ansd specifically written contract for each client but I could not afford it frankly. I think I will stick with my variation of the one above, while taking your point about the holes in it and its problems.

This is how I break down the purpose of the contract for me.

10% legal protection
80% making the client absolutely clear about the scope of the project and what is covered by the afreement.
10% marketing - it looks good to have something!

I reckon it does enough to reduce the risk of me ever ending up in court, and if I did end up in court I am not sure that any contract would save me from being in severe trouble anyway. Once you go through those big doors anything can happen.

So, unless or until I have clients who cease to be price conscious (yeah!) I will just risk it.



drray -> RE: Contracts: Single and Multi-page (9/20/2002 18:17:32)

For what it' s worth, Katherine, I' ve been to your site and seen your work. It is of such high quality that I suspect you have little to worry about when it comes to unhappy clients![:D] When you say that your contract is 10% legal protection and 80% making sure the client is absolutely clear about the scope of the project, to me as an attorney that' s another way of saying you want the contract to be 90% about legal protection!

Recall I said earlier that a contract is simply a document that reflects the mutual intent of the parties. How does it do that? By: (1) identifying each party' s expectations (outcomes desired, or as Katherine put it, making sure the client is clear as to the scope of the project); and (2) designating who will meet those expectations, and when and how they will be met. Those expectations might be general (e.g., Client wants a quality website; Designer wants to develop websites for $X per hour) or they might be specific (e.g., Client wants 28 page website, each with a header containing the company logo, ASP-enabled, with 2 product databases, a shopping cart, and e-commerce functionality; Designer will develop the site for a flat fee of $X payable one-half upon signing the contract and one-half upon completion of work, etc., etc.)

Simply put, the more specific you are about identifying expectations, who will meet them, and when and how they will be met, the better will be the contract you have. The business issue, of course, is balancing your desire for specificity against your desire not to scare off potential clients. My " standard" contract is generally between 6 and 8 pages long. I' ve never had anyone complain. In my (far too many) years of legal experience, I' ve learned that the people who complain most loudly about contracts are either: (1) unsophisticated businesspeople; or (2) people I really can' t trust to begin with; or (3) both. In either event, I' m reluctant to do business with them. In some cases, I won' t do business with them.

A good contract won' t get in the way of business. Nor will a good lawyer. When I' m involved in business deals on behalf of clients, I' m there to make the deal happen, not keep it from happening. Find yourself a lawyer who understands that, and then concentrate on what you do best -- providing quality products and services.

Dan



Reflect -> RE: Contracts: Single and Multi-page (9/21/2002 7:55:57)

Pleasure reading your posts Dan, VERY insghitful and thought provoking.

Brian



Peppergal -> RE: Contracts: Single and Multi-page (9/23/2002 16:45:09)

How about having a " Work Agreement" rather than a " contract?" That sounds less intimidating; will it give customers the same " confidence" in me as a business person as would a " contract?"

I don' t want to have more than two different single page " agreements" for the client to print, sign, and mail to me...one for original web design and another for customers who want to hire me to maintain their current existing site. Just a simple " This is what you get for XXX" and leave it at that...we can add additional terms on an individual case by case basis.
Would it be more legal and binding if they sign it an mail it to me? Would it be binding at all?
I agree with the comments on an older thread about securing payment FIRST before supplying the finished web...there are crooks out there.



drray -> RE: Contracts: Single and Multi-page (9/23/2002 18:12:44)

The law doesn' t care what you call it...a contract by any other name is still a contract. Your business judgment dictates what you call it. As far as signature goes, the law requires that a party must " sign" a contract in order to be bound by it. " Signature" means a manifestation of assent to be bound, and it can take a variety of forms. Here, we' re getting into some advanced contract law that you shouldn' t be concerned with. For your purposes, you should require that all clients sign (in the ordinary sense) your contracts before you commence work. That' s the safest way to go.

Dan Ray



_gail -> RE: Contracts: Single and Multi-page (9/25/2002 8:07:19)

I think we are fortunate to have an attorney provide comments about a contract many of us use. Thank you, Dan, for taking the time to do so and sharing useful information about the inherent problems.

If we use a contract it should certainly be correct. But I guess we wouldn' t know that unless a lawyer took a look at it. [;)]

My husband and I have personally used the services of lawyers many times: buying and selling property, business leases, etc. I' ve worked with scores of them in a multitude of cases involving litigation, as well as in executive sessions for contract negations for more than 14,000 employees of a large public entity. I am not opposed to lawyers though I do wish their services were much more affordable.

Saying this, I' m betwixt and between some of the responses expressed thus far. I personally would not hire an attorney to write a contract for the small jobs I typically do.

There are times, though, where hiring one makes a lot of sense: if the income you expect for a job is very substantial; if a job is extremely complex; if a potential technical mistake by me as designer (or a subcontractor I use) meant the client could lose substantial income because the website failed to function as intended.

There may be other areas but I don' t see much were a web designer could get sued. If that were the case though, small claims court might be sufficient. Or just refund the deposit.

Paying an attorney to develop a contract also doesn' t make sense to me if the cost of potential litigation would exceed the cost of a job, even by a small amount. A generic contract such as can be purchased online or at an office supply store could suffice. I would also consider purchasing one of the available software programs which allow users to develop simple contracts specific to the state or area in which they do business.


gail






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