When times get tough, it can often feel like there are no good people left in the world, only people who haven’t yet turned bad. These bad people will go back on their word, welch on a deal, put themselves first. You owe it to yourself to stay on top. You owe it to yourself to ensure that no matter how bad things get, you’ll come away clean. You owe it yourself and your business not to be the guy lying bleeding in an alley with a slug in your gut.
But you’re a professional, right? Nothing bad is going to happen to you.
You’re a good guy. You do good work for good people.
Think again chump.
Maybe you’re a gun for hire, a one man army with your back to the wall and nothing standing between you and the line at a soup kitchen but your wits. Maybe you work for the agency, or like me you run one of your own. Either way, when times get tough and people get nasty, you’ll need more than a killer smile to save you. You’ll need a killer contract too.
It was exactly ten years ago today that I first opened my doors for business. In that time I’ve thumbed through enough contracts to fill a filing cabinet. I’ve signed more contracts than I can remember, many so complicated that I should have hired a lawyer (or detective) to make sense of their complicated jargon and solve their cross-reference puzzles. These documents had not been written to be understood on first reading but to spin me around enough times so as to give the other player the upper-hand.
If signing a contract I didn’t fully understand made me a stupid son-of-a-bitch, not asking my customers to sign one just makes me plain dumb. I’ve not always been so careful about asking my customers to sign contracts with me as I am now. Somehow in the past I felt that insisting on a contract went against the friendly, trusting relationship that I like to build with my customers. Most of the time the game went my way. On rare the occasions when a fight broke out, I ended up bruised and bloodied. I learned that asking my customers to sign a contract matters to both sides, but what also matters to me is that these contracts should be more meaningful, understandable and less complicated than any of those that I have ever autographed.
Writing a killer contract
If you are writing a contract between you and your customers it doesn’t have to conform to the seemingly standard format of jargon and complicated legalese. You can be creative. A killer contract will clarify what is expected of both sides and it can also help you to communicate your approach to doing business. It will back-up your brand values and help you to build a great relationship between you and your customers. In other words, a creative contract can be a killer contract.
Your killer contract should cover:
- A simple overview of who is hiring who, what they are being hired to do, when and for how much
- What both parties agree to do and what their respective responsibilities are
- The specifics of the deal and what is or isn’t included in the scope
- What happens when people change their minds (as they almost always do)
- A simple overview of liabilities and other legal matters
- You might even include a few jokes
To help you along, I will illustrate those bullet points by pointing both barrels at the contract that I wrote and have been using at Stiffs & Nonsense for the past year. My contract has been worth its weight in lead and you are welcome to take all or any part of it to use for yourself. It’s packing a creative-commons attribution share-a-like license. That means you are free to re-distribute it, translate it and otherwise re-use it in ways I never considered. In return I only ask you mention my name and link back to this article. As I am only an amateur detective, you should have it examined thoroughly by your own, trusted legal people if you use it.
NB: The specific details of this killer contract work for me and my customers. That doesn’t mean that they will work for you and yours. The ways that I handle design revisions, testing, copyright ownership and other specifics are not the main focus of this article. That you handle each of them carefully when you write your own killer contract is.
Kiss Me, Deadly
Setting a tone and laying foundations for agreement
The first few paragraphs of a killer contract are the most important. Just like a well thought-out web page, these first few words should be simple, concise and include the key points in your contract. As this is the part of the contract that people absorb most easily, it is important that you make it count. Start by setting the overall tone and explaining how your killer contract is structured and why it is different.
We will always do our best to fulfill your needs and meet your goals, but sometimes it is best to have a few simple things written down so that we both know what is what, who should do what and what happens if stuff goes wrong. In this contract you won’t find complicated legal terms or large passages of unreadable text. We have no desire to trick you into signing something that you might later regret. We do want what’s best for the safety of both parties, now and in the future.
You ([customer name]) are hiring us ([company name]) located at [address] to [design and develop a web site] for the estimated total price of [total] as outlined in our previous correspondence. Of course it’s a little more complicated, but we’ll get to that.
The Big Kill
What both parties agree to do
Have you ever done work on a project in good faith for a junior member of a customer’s team, only to find out later that their spending hadn’t been authorized? To make damn sure that does not happen to you, you should ask your customer to confirm that not only are they authorized to enter into your contract but that they will fulfill all of their obligations to help you meet yours. This will help you to avoid any gunfire if, as deadline day approaches, you have fulfilled your side of the bargain but your customer has not come up with the goods.
As our customer, you have the power and ability to enter into this contract on behalf of your company or organization. You agree to provide us with everything that we need to complete the project including text, images and other information as and when we need it, and in the format that we ask for. You agree to review our work, provide feedback and sign-off approval in a timely manner too. Deadlines work two ways and you will also be bound by any dates that we set together. You also agree to stick to the payment schedule set out at the end of this contract.
We have the experience and ability to perform the services you need from us and we will carry them out in a professional and timely manner. Along the way we will endeavor to meet all the deadlines set but we can’t be responsible for a missed launch date or a deadline if you have been late in supplying materials or have not approved or signed off our work on-time at any stage. On top of this we will also maintain the confidentiality of any information that you give us.
My Gun Is Quick
Getting down to the nitty gritty
What appear at first to be a straight-forward projects can sometimes turn long and complicated and unless you play it straight from the beginning your relationship with your customer can suffer under the strain. Customers do, and should have the opportunity to, change their minds and give you new assignments. After-all, projects should be flexible and few customers know from the get-go exactly what they want to see. If you handle this well from the beginning you will help to keep yourself and your customers from becoming frustrated. You will also help yourself to dodge bullets in the event of a fire-fight.
We will create designs for the look-and-feel, layout and functionality of your web site. This contract includes one main design plus the opportunity for you to make up to two rounds of revisions. If you’re not happy with the designs at this stage, you will pay us in full for all of the work that we have produced until that point and you may either cancel this contract or continue to commission us to make further design revisions at the daily rate set out in our original estimate.
We know from plenty of experience that fixed-price contracts are rarely beneficial to you, as they often limit you to your first idea about how something should look, or how it might work. We don’t want to limit either your options or your opportunities to change your mind.
The estimate/quotation prices at the beginning of this document are based on the number of days that we estimate we’ll need to accomplish everything that you have told us you want to achieve. If you do want to change your mind, add extra pages or templates or even add new functionality, that won’t be a problem. You will be charged the daily rate set out in the estimate we gave you. Along the way we might ask you to put requests in writing so we can keep track of changes.
As I like to push my luck when it comes to CSS, it never hurts to head off the potential issue of progressive enrichment right from the start. You should do this too. But don’t forget that when it comes to technical matters your customers may have different expectations or understanding, so be clear about what you will and won’t do.
If the project includes XHTML or HTML markup and CSS templates, we will develop these using valid XHTML 1.0 Strict markup and CSS2.1 + 3 for styling. We will test all our markup and CSS in current versions of all major browsers including those made by Apple, Microsoft, Mozilla and Opera. We will also test to ensure that pages will display visually in a ‘similar’, albeit not necessarily an identical way, in Microsoft Internet Explorer 6 for Windows as this browser is now past it’s sell-by date.
We will not test these templates in old or abandoned browsers, for example Microsoft Internet Explorer 5 or 5.5 for Windows or Mac, previous versions of Apple’s Safari, Mozilla Firefox or Opera unless otherwise specified. If you need to show the same or similar visual design to visitors using these older browsers, we will charge you at the daily rate set out in our original estimate for any necessary additional code and its testing.
The Twisted Thing
It is not unheard of for customers to pass off stolen goods as their own. If this happens, make sure that you are not the one left holding the baby. You should also make it clear who owns the work that you make as customers often believe that because they pay for your time, that they own everything that you produce.
You guarantee to us that any elements of text, graphics, photos, designs, trademarks, or other artwork that you provide us for inclusion in the web site are either owned by your good selfs, or that you have permission to use them. When we receive your final payment, copyright is automatically assigned as follows:
You own the graphics and other visual elements that we create for you for this project. We will give you a copy of all files and you should store them really safely as we are not required to keep them or provide any native source files that we used in making them.
You also own text content, photographs and other data you provided, unless someone else owns them. We own the XHTML markup, CSS and other code and we license it to you for use on only this project.
Vengeance Is Mine!
The fine print
Unless your work is pro-bono, you should make sure that your customers keep you in shoe leather. It is important that your customers know from the outset that they must pay you on time if they want to stay on good terms.
We are sure you understand how important it is as a small business that you pay the invoices that we send you promptly. As we’re also sure you’ll want to stay friends, you agree to stick tight to the following payment schedule.
No killer contract would be complete without you making sure that you are watching your own back. Before you ask your customers to sign, make it clear-cut what your obligations are and what will happen if any part of your killer contract finds itself laying face down in the dirt.
We can’t guarantee that the functions contained in any web page templates or in a completed web site will always be error-free and so we can’t be liable to you or any third party for damages, including lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate this web site and any other web pages, even if you have advised us of the possibilities of such damages.
Just like a parking ticket, you cannot transfer this contract to anyone else without our permission. This contract stays in place and need not be renewed. If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.
Although the language is simple, the intentions are serious and this contract is a legal document under exclusive jurisdiction of [English] courts. Oh and don’t forget those men with big dogs.
Take it from me, packing a killer contract will help to keep you safe when times get tough, but you must still keep your wits about you and stay on the right side of the law.
Don’t be a turkey this Christmas.
Be a contract killer.
Update, May 2010: For a follow-on to this article see Contract Killer: The Next Hit