Last week I wrote an article about why contracts are important and why you need to start using them in your design business (if you’re not already!) as part of a three part series we’re running on the Design Range about contracts, so make sure you sign up to the newsletter below so you don’t miss any!
In this article I’ll be going over how to actually write a design contract. A big reason I didn’t use contracts when I started out was that I didn’t understand them, and that I thought it would cost me a fortune to have one written up. Well guess what – they’re not that complicated and you can write a pretty rock solid and legally binding contract all by yourself for free!
Now (as with all this contract stuff) here is the part where I throw out the disclaimer – I’m not a professional legal superhero, and what I’m going to explain here is not the be all and end all of design contracts. Every project is different and your contract needs to reflect that, so there are some things that I will no doubt miss. That being said, I’ll do my very best to go over the basics and to tell you when you’ll need to go into more detail on certain aspects. Also I work in the UK and whilst contract law is really similar in common law countries like the US and Australia, I’d always recommend you do a bit of research yourself just to make sure I don’t skip over anything that’s important for the country you do business in (and if you do find anything – make sure you tell me in the comments section and I’ll update this article!).
Before you write a single word you need to decided on your voice; how you’re actually going to communicate the details in this contract. We assume that contracts have to be written in this utilitarian, confusing legal vocab that nobody understands but they really don’t. So long as you’re clear about what you’re saying, you can say it however you like.
It can be really jarring from a client’s perspective to have a really pleasant informal conversation with you as a designer, and then have to read a contract that speaks like “here unto the proprietor of the intellectual copyright is subject to discretionary appropriation of all assets by the parties named herein”.
I don’t even know what that means and I wrote it! It probably means absolutely nothing, but you get my point right? There’s no need for this weird robot language, just write as if you’re writing an email.
Be clear, be friendly, be yourself.
We don’t write a contract fresh for every client that comes along, and if we’re speaking normally we don’t refer to people by their names at every point, nor do we speak in the third person. We use terms like you and I.
The problem with this approach is that they’re non-specific, so the very very very first thing we need to do in our contract is define who you and I (or we if you’re a company) are.
This also allows you to keep 90% of the contract the same from client to client as there’s no need to go through editing every time you mention them.
So when you do this, its a great opportunity to lay out the contract in it’s most basic terms and get a few extra details in there. Here’s an example where I’ve underlined the bits you’ll need to change from contract to contract.
There’s no need to get into specifics here. We have an entire contract left for that.
Nope! We’re not there yet! We’re not talking about the actual project yet!
But this section is called ‘what do you agree to do’ – how can we not be talking about the project yet?
Here is simply where we underline some very general terms based around how both you and the client are considered to behave. I’m not talking about sitting up straight and not swearing, but rather about how you agree to stick to deadlines, keep the project a secret until it’s ready and that you have the skills to actually do everything you say you can.
Remember though that this contract isn’t just for you, so you need to use this section to outline what you expect from the client too. This is where a lot of designers slip up and think that just because this project is important to the client, that they’ll just automatically get you everything you need and give you feedback when you ask for it.
It’s not so.
This project may be super important to your client, but you have to remember that unlike you, this is not their only focus. In many cases they probably have a business to run as well as managing this project, so you need to make sure that you set some ground rules regarding how you want them to deal with you and the progression of the project.
Now those rules are entirely up to you and should be based around your working methods but make sure you consider things like who the point of contact is for the project, what assets the client is responsible for, how long you expect feedback to take etc…
Also – whilst you don’t want to get into specifics here, do make sure you mention that they should agree to stick to any payment schedules you set.
Ok – NOW we can talk about the project. This section is really the meat and potatoes of your contract. It needs to go into how you’ll handle every aspect of a project and exactly what you will and what you won’t do. That being said, you may be surprised to find that this section really doesn’t change that much from contract to contract.
What you need to do is break each little bit of the project down into sections and speak about how you’ll handle those individually. What you’ll find once you get down to this level is that you’re producing very general sentences that can be transferred between contracts very easily.
Now I can’t give an exhaustive list of every single thing that you should mention here as what services you offer and the way you work will differ greatly to me and how I work, but here are a few core examples to get the ball rolling:
Remember too that you need to state what you won’t do. Clients can assume a lot, so always make sure that you clearly state things you think you shouldn’t be expected to do (stuff like inputting text to websites or sourcing images for brochures).
Andy Clarke from Stuff & Nonsense handles this very well in his contracts by simply stating at the end of each of these sentences “If you’d like us to do this, then we can provide a separate estimate for that”. It’s a good line that doesn’t close any doors and at the same time, doesn’t commit you to things you can’t afford to spend time on.
Ok – so the main bit is done now, but don’t rest on your laurels just yet, this is where the important stuff comes in. In this section we cover the stuff that will actually offer you some protection should shit hit the proverbial fan. Because of its importance you need to make sure your language here is really clear and very accurate – with that being said, this may be the one part of the contract where you do need to speak like a lawyer… sorry.
The first thing you need to say is that you make mistakes. Sounds counter intuitive I know considering you’re still in the process of trying to actually bag a client but it’s important. By saying you make mistakes you can go on to say that in such an event you are not liable (to the client or anyone else) for damages, loss of income or any other consequence.
Say for instance you design a brochure, it goes to print and only when it comes back do you realise that you made a typo in the web address of the company. That company may then make the case that it was your mistake and so you should reimburse them for the print cost, or even worse – for their ‘predicted’ loss of earnings because of this!
Granted – you should state in your specifics section that the client should proof read everything before printing, but this little sentence really underlines that and doesn’t give them a leg to stand on.
The second bit you need to mention is about how the contract holds up if part of it falls apart. For example, one part of the contract proves to be unlawful or void in any way then an argument could be put forward that this would mean the entire contract would be void (even if it had nothing to do with it).
This is a bad thing, and it’s a loop hole you want to shut down.
So you want to make a statement saying that if that should be the case for any part of the contract, then it should just be ignored and you should still honour the rest of the contract and pretend like that broken bit just isn’t there. Only you’d say it in legal terms like:
And then you’d apologise for sounding like a scary law robot.
This is another huge oversight that a lot of designers make, and one that I was guilty of for a long time even after I started using contracts.
A lot of clients will assume that just because they’ve hired you to complete a project, that once it’s done; they’d own the copyright. This is very much the case for a lot of Work for Hire agreements (which I’d strongly advise you to think twice before signing) but in truth it’s a bit more fuzzy than that.
You see if an artist creates something, then they automatically own the copyright – even if they sell it. However – if you’re employed and you make something at work, then the employer owns the copyright.
Do you see the fuzzy area that the freelance designer finds themselves in here?
What you need to do is use this opportunity to get rid of the fuzziness and make things absolutely clear.
The first thing you need to make clear is that until the client has paid the full amount, you own everything to do with this project (less any assets the client might have provided of course).
Now once payment is received, how you divvy up the copyright is really up to you. What I will say is that it’s not best practice for a designer to sign over copyright to the client unless you’re being paid a lot. Now I won’t go into too much detail here, as it’s not really the place, but what you should consider doing is licencing the work you’ve done to them. This way to decide the terms in which it can and can’t be used (worldwide, online, in print media etc…).
Even if you’re happy for the client to take the project and do what they want with it (which in most situations, will be the case), try licencing it to them exclusively and in perpetuity for use worldwide. It’s basically the same as them owning it, but you don’t lose all rights to your work. It may seem redundant to you; why would you want to keep any rights to this client’s logo at all? All I say is that Carolyn Davidson who designed the Nike swoosh got paid $35 – and that’s all she’s ever been paid for it…
One last thing you need to do whilst you’re here is state that all the content the client has provides should be either owned by them or they have permission to use it.
There’s not a lot I can say to really help you out here as I know how much payment methods can vary between designers. What I will say though is make sure it’s clear exactly how much, in what method and in what time scale you expect to be paid. If you’re being paying in instalments, make sure you note the date each instalment is due, or at exactly what stage of the project if you’re working that way. Also mention here any deposit that you’re requesting.
At this stage, it should already be pretty clear to both you and your client how much this project is going to cost and how you expect to be paid. The payments section of a contract should act as a reminder to what you’ve already discussed and agreed on. Don’t let payment terms first come to light when your client reads about them in your contract. I know some of you will no doubt feel uncomfortable approaching the subject of payment in a discussion with a client, but trust me – leaving your contract to deliver the news is much worse, and makes it look like you’re trying to slip something in under the table.
This part of the contract is a lot like that pack of imodium you pack for your holidays; you hope we never need it, but you feel so much better knowing it’s there.
When we talk about cancellation, we often think about the client cancelling on us, but it’s important remembering that it can sometimes be the case that you’ll want to cancel a contract. Some clients can be dicks and the only way out may be to walk away. So the first port of call needs to be a statement that both you and the client are free to cancel the contract at any time, for any reason.
That being said – we really don’t want to be leaving it there do we.
So what happens if the contract does get cancelled then? Well it really depends on at what stage of the project you’re at.
If you’re only at the concept stage, then cancellation isn’t that uncommon, especially for higher paying contracts where clients might hire several designers to produce concepts before they make a final decision. This kind of cancellation is often called a Kill Fee, and is basically just a set price you charge for your concept work. It’s a way for the client to pay you for your work and politely decline. Think of this more as a paid pitch, than a cancelled contract.
Now if the contract is cancelled in the middle of a project then things get a bit trickier. It’s almost impossible to set any hard and fast rules about this, as every project is hugely different. A good method is to say that the client is responsible for paying a percentage of the total amount equal to the percentage of work you’ve done. If you do this though, make sure you also pop in a disclaimer that it’s you who decides what the percentage is and not the client (a lot of clients won’t take into consideration anything they physically can’t see, like code for example). It’s also worth saying that the client is responsible for any related expenses accrued by you (such as paying other freelancers you’ve hired, or any web hosting you’ve purchased on their behalf) in relation to the project.
If the contract is cancelled after all the work is done (very rare but worth mentioning), then a similar rules should apply. The client should pay you all of the agreed amount just as normal, however in this case since the contract is cancelled you’d retain all copyright to the created work and any licencing rights would be void.
This section is the equivalent of small print. It’s stuff that’s so obvious it really shouldn’t need saying, but we say it anyway because… you know… it’s a contract.
The two main bits you want to say is that this contract can’t be transferred to anyone else without your permission (duh!) and that the contract doesn’t need to be renewed and won’t expire after a certain amount of time (double duh!).
You can pop in some other stuff here if you like that’s specific to you, or you don’t think will fit well in one of the other sections, or even repeat some stuff you’ve said before (the contract void bit for example you may want to copy and paste here) but other than that there’s not a lot else to it.
And you’re done! This last bit is where you sign and date the contract and make it all binding. Just make sure the people that sign it are the ones you named up at the top and you’re good to go.
Signing is all well and good, but it isn’t the only way to complete a contract. So long as you can prove that a client has a agreed to the terms in the contract then there’s no need for them to physically sign anything.
Next week I’ll be posting an article about a method I use to issue contracts on my website that clients can sign digitally with no printing and posting required, so if you haven’t already, make sure you sign up to the newsletter below to get notified as soon as the article goes live.
Lastly I’d like to thank Andy Clarke for posting his contract killer on which this article is based. It was exactly what I needed to hear and was the catalyst that actually got me to start using contracts, so if any of you want even more information, or to see a completed version of this kind of contract – make sure you check it out.