BlogmyQuery – BMQ

Editor’s Note: Andy Clarke is known for his design work, books, conference presentations and contributions to the design community. Over the last 14 years, he has designed for amazing clients, written two books, and has given over 50 conference presentations and hosted workshops and training events for Web professionals all over the world.

Image by Geri Coady.

Do you remember those “10 Useful Legal Documents for Designers?� Well, it turns out that you, designers who read Smashing Magazine, liked one in particular: a plain-language, straightforward “Contract of Works for Web Design,� which is based heavily on Andy Clarke’s “Contract Killer�. Since Mr. Wong published that template ten months ago, more than 1,600 designers have downloaded it on Docracy alone.

Why is this legal template so popular? Does it really work better than other contracts? Can it help you close that job faster and protect you from getting stiffed? Could it become an industry standard, like grid systems and agile development? Could it help designers save money on legal fees? Who better than Mr. Andy Clarke himself to answer these questions!

Question: Hi, Andy. Your company is called Stuff and Nonsense. That’s how many people would define contracts. Why do you think contracts are often unreadable and puzzling, and what brought you to write your own model from scratch?

Andy: Being at best obscure or at worst intentionally misleading is precisely how many people view contracts. That’s likely because the contracts we are so often asked to sign have been written in language that’s unfamiliar to most of us. You might think that contracts must be written this way, but they don’t. Contracts can be written in any style you like, in language that’s as formal or as informal as you are. Use your contract to set the tone for the relationship with your clients. Of course, you’ll need to cover all the issues, but there’s no reason you can’t do that while still being you.

I appreciate plain speaking, and I try to be as direct as possible in the way that I talk with my clients. Over the years that I’ve run Stuff and Nonsense, I’ve seen a lot of contracts, and none of them either had my “voice� or covered the specific aspects of Web design or development that are important to my work. I was frustrated with what I found, so I sat down one day to write my own contract, the “Contract Killer,� and published it for anyone to use.

That was, amazingly, four years ago, and although some of the details of that original Contract Killer have changed, the fundamental principles have stayed the same. That’s because many of the issues that designers and developers and our clients face have also stayed the same. Still, in the latest version, Contract Killer 3, I’ve made some changes to reflect what many of us are doing now, particularly in relation to responsive and mobile design.

Conflicting terms of standard form contracts often result in legal disputes. Image by Steve Snodgrass.

Question: How do clients react when you send them the Contract Killer? Do you ever have to fight the “battle of the forms�?

Andy: The original reaction to Contract Killer was astonishing, and over the last four years the feedback I’ve received from designers and developers has been overwhelmingly positive. I know of some people who say that the contract has helped them get work. Many use Contract Killer out of the box, while others include their own payment terms and copyright assignment. Some have added whole new clauses — for example, about termination. I feel very, very happy that so many people have found Contract Killer useful.

Reaction from my own clients has been overwhelmingly positive, too. No one has ever refused to sign it, and no one has asked for it to be replaced with another contract. In fact, the simple straightforward language has encouraged my clients to sign and return it faster than any other contract I’ve ever used. I guess that’s because being clear means there’s less need to check with a lawyer.

Question: You’ve been using this contracts for years now. Has it held up? Did you find some edge cases that exposed certain weaknesses? And, if so, how did you fix the problem?

Andy: I’ve used Contract Killer with every client for the last five years. Occasionally I’ve made changes to specific clauses — often around copyright assignment — when clients have requested that. But you know what? That’s OK. A contract is just another point for us to communicate — in this case, negotiate — with our clients. Changing a few words doesn’t matter much. How we handle changing those words matters a lot.

I’m now much more explicit about the fact that browser testing is about ensuring that a person’s experience of a design should be appropriate to the capabilities of the browser or device they’re using and that websites will not look the same in browsers of different capabilities or on devices with different-sized screens. I’m also particular about the desktop and mobile browsers I test on, although I know this will vary between designers and developers.

Question: Do you have any tips on how to use a contract as a communication tool? For example, how do you handle a client who requests an overly broad license?

Andy: Many clients, too many in fact, know little about what’s expected or involved in a successful Web project. They may have had a poor prior experience, so even if they don’t come right out and say it, they’re looking to you to show them how it’s done. Your contract is a great place to start showing them how you do business. Handle this stage well, and your project will run much more smoothly. Let’s look at an example from Contract Killer 3, the copyright ownership clause:

We’ll own the unique combination of these elements that constitutes a complete design and we’ll license that you, exclusively and in perpetuity for this project only, unless we agree otherwise. We can provide a separate estimate for that.

It’s a fair clause that’s designed to prevent a client from using and reusing the work for other projects without agreement. This means that if you design an e-commerce store for them, they can’t launch a second site using the same design. This is a sticking point for many people, who wrongly expect that they will own the rights to everything they pay you to produce for them for any purpose.

When this happens, explain the good reasons why the clause exists and, if it’s appropriate, offer them a new price that includes complete ownership and that reflects its potential value to them in the future. Don’t be afraid to stick up for what you’re asking, and always, always remember, this is your contract that you’re asking them them to sign. Make it work for you.

Make your contract work for you. Image by Steve Snodgrass.

Question: In Contract Killer 3, you argue against fixed pricing, but you also promise flexibility. Can you explain how to negotiate a pricing scheme with a client who prefers fixed pricing or insists on a cap?

Andy: Fixed or project-based pricing has its roots firmly planted in the old-fashioned waterfall development process. But many people, including me, have moved to a more agile-based way of working. In an agile workflow, change is embraced, even encouraged. This means that fixed-price contracts quickly become irrelevant because if the requirements change, the price might change, too.

I organize my projects into week or two-week long sprints. Each sprint has a theme, a set of requirements that I’m going to finish during the period. It might be a sign-up process one week and a shopping cart the next. We’ll cover all the areas of a project across these sprints; and because the client knows the price in advance, he or she can budget. If a client has a great idea for something new or wants to change their mind, no problem. I roll up those requests into another sprint week, and the client can then make a business decision about spending money on those items.

Question: Have you ever faced a situation in which a client was asking for too many changes, one after another? How did you deal with that?

Andy: Several years ago I worked with an agency on a new site for a travel company. The agency had negotiated the price with its client, and I worked on a fixed price. Although the agency had drawn up the original brief and I followed that up with my own scoping meetings, things quickly went downhill as the client flip-flopped through ideas and change requests that were costly and complicated. I tolerated the situation as long as I could, but it became apparent I was making a loss on the project, and I withdrew.

This problem arose not because the client changed their minds — no, that shouldn’t ever be considered an issue; in fact, it should be encouraged — but because the agency and I were working to a fixed price. This left everybody with a bad taste in their mouth. Had we all worked in the agile way I just described, changes would never have been an issue, and it’s likely the project would have been a success, rather than a failure.

Question: What are the top three things a designer should keep in mind when preparing or reviewing a contract?

Andy: First, and possibly most importantly, you should ask your clients to sign a contract every time you work with them. It doesn’t matter whether they’re a first-timer or you’ve worked with them a dozen times: it’s vital that you agree on the scope and terms of the work. It took a while, and one or two unfortunate experiences, for me to learn that contracts are intended to set out what both parties should do.

Make the contract your own. It’s great that people like Contract Killer so much that they’ll use it out of the box, but your contract should be in your voice, not mine. Use the writing of a contract as an opportunity to put your personality into your paperwork. There’s no reason why a contract shouldn’t be funny and a joy to read. After all, you want someone to sign it.

Lastly, take the time to tailor a contract to a particular client and project, and make sure you’ve addressed everything you’re going to do for them. If you get a hint of any potential issue — for example, that they personally use an old browser or device — write about how you’ll handle that in your contract.

Stuff & Nonsense – amazing design work for amazing people.

Question: Despite the saying, the client is not always right. How can you say that to them without being the a*shole?

Andy: No one, no matter who they are or what they think, is always right. (Well, except my wife. She’s always right about everything. Obviously.) One thing I’ve learned over the years is that clients love to feel involved in the design process. Sometimes, though, they make suggestions only so that they feel they have put their stamp on the project. There are simple ways that designers and developer can prevent this from happening. This is something I wrote about recently for Smashing Magazine:

• Don’t email pictures of websites to your clients and then ask for their “thoughts.â€�
• Don’t wait until after weeks of work to have a “big reveal.â€�
• Set up the proper environment to receive structured feedback, and then ban all unstructured feedback you might receive by telephone or email.

Please remember: you are the designer. You are the person who has been hired to solve a problem that the client either can’t or doesn’t have the time to solve themselves. Your solution to that problem is worth a lot to their business, so never underestimate your role, skills and influence in the design process.

Question: I hear you are working on a “Killer NDA� (non-disclosure agreement). Sounds great.

Andy: Writing a Killer NDA has been on my mind for a while, as I’ve been asked to sign some horribly confusing examples over the years. I have no idea why NDAs have to be so complicated; after all, their intent is to make sure that everything that’s shared stays secret.

I’ve called this contract “Three Wise Monkeys� — see no evil, hear no evil, speak no evil. Three Wise Monkeys deals with just three things:

• What’s confidential?
• What can we say?
• How long does the agreement last?

You can read it here. It’s licensed under Creative Commons 3.0, so if you want to personalize it, you can do so. It’s also on GitHub and Docracy.

Simple is good. Andy’s “Three Wise Monkeysâ€� contract deals with just three things. Image by Anderson Mancini.

Question: Last question: who are the “men with big dogs� referenced at the very end of your contracts?

Andy: I’m not afraid to say that on several occasions we’ve been forced to hire a debt collection agency to recover our money. On one occasion, we hired a debt collector from the client’s town, because we knew he would be ashamed if it became known locally that he was a bad payer. There’s no excuse for late or non-payment, and you should never be apologetic about wanting your money. Always remember, if you’ve done the work, you deserve to be paid. So, when all else fails, hire a professional. Preferably one with a big dog.

Have you used Contract Killer or a version of it? Share your experience in the comments!

© Veronica Picciafuoco for Smashing Magazine, 2013.

A design contract is like a business card—it comes from the same desk, and bears the same creative mark. But it’s also the business card you hate handing out: a folder of legal gibberish with terrible formatting that reminds the client of everything that could possibly go wrong before the work has even started.

Is this just a necessary evil? Why can’t contracts evolve like everything else?

Actually, they can—and should. Modernizing your contract will not only make it match your carefully crafted brand, but it can also help you reach an agreement faster, and even strengthen your position when negotiating. This is not an easy task. Legal content is a delicate matter, and you definitely can’t start tweaking your contract like it’s a blog post.

Before we start modernizing contracts, we first have to understand their purpose, and how and why they got the way they are. It’s a long journey back.

Five Roman principles of contracts still valid today

The Romans developed a sophisticated system of commercial law that has become the foundation for pretty much all of the Western world’s legal systems. A design contract was probably signed to make the incredible decorations of Ara Pacis. Such a contract would have been created to accomplish something not that different from today’s products of design: defining what must be done, the deadline, the client’s approval, and the price. The concept of copyright did not exist yet, but unauthorized and fraudulent copies of literary works were socially unacceptable. (As for non-literary works, good luck copying those marble statues.)

While our work has evolved, contracts have essentially stayed the same—for a number of good reasons. In fact, several principles are just as important in today’s contracts as they were in Roman times.

1. Verba volant, scripta manent

Spoken words fly away, written words stay.

In a world where few people could read or write, a written contract was much more difficult to obtain—and therefore much more valuable than a handshake. Romans were the first to establish a now-universal principle of civil procedure: The burden of proof is on the plaintiff (onus probandi incumbit ei qui dicit). Therefore, a written contract protects the wronged party. This is still true today, so don’t only use a written contract before work begins; make sure every modification is documented in writing.

That’s a much easier task today than in Roman times. You don’t have to run to a scribe, or even a notary. E-mail has been proved legally binding multiple times, so to amend a contract, you can just drop a line like, “As discussed in today’s meeting, we mutually agree to modify the statement of work as follows…”

Some contracts even have a clause that requires all amendments to be in writing. If that’s the case, you’ll want to make certain you follow it; otherwise, the client can make excuses for not paying you for extra work.

AIGA’s standard agreement for design services uses a nifty solution to make sure all modifications are in writing and that there’s a limit to the number of modifications that can be requested:

4.2 Substantive Changes. If Client requests or instructs Changes that amount to a revision of at least 15% of the time required to produce the Deliverables, and or the value or scope of the Services, Designer shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Designer.

As you can see, it’s the same old verba volant, scripta manent still in use.

2. Aliquid dare, aliquid retinere

Give something, keep something.

The value of a project depends not only on what you put in a contract, but also what you leave out. This is particularly true for design, which is not strictly a product, nor strictly a service. It’s a hybrid set of “deliverables,� and the contract (not the e-mail with the design attached) is the place where you give them to your client.

Be wary of what you give and keep. If possible, hold onto copyright: Delay the assignment, or the effective date of the license, until the money is in the bank. This is the best leverage you have.

Clients will try to do the same with payment, of course. Welcome to contract negotiation.

On this inevitable battlefield, details make a difference. For example, imagine you are an illustrator who creates a set of characters for a story. Your client picks the ones they like, and those are the deliverables they buy. Why shouldn’t you keep the rest, and “recycle� them for future projects? If you don’t specify this in the contract, the client will be assigned all the work in connection with the project, including unused sketches.

Same thing if you are delivering code. It’s common to incorporate snippets of code into multiple projects, but just because that code ends up in that project doesn’t mean that client owns it. These are usually called “design tools� in a contract—which means instead of giving something away, you’re simply giving your client permission to continue using the tools.

3. Leges sine moribus vanae

Laws are useless without customs.

Just as graphical and technical standards are essential to designing, standards and industry practices play a crucial role in negotiating contracts. Following best practices not only lowers transaction costs and streamlines the process, but also fosters more balanced deals.

What are the contractual standards of design? The AIGA agreement mentioned earlier is a great start, but standards can also live in single clauses. Eric Adler, a lawyer who works with creative professionals, knows which clauses of his contract are more likely to be negotiated, and takes care to explain those to his clients.

An excerpt from Eric Adler’s contract annnotations.

When it comes to liability, Adler suggests that it’s standard to cover your asse(t)s up to the overall net value of the project. You could try to ask for more, but no one wants to make a client nervous over a legal boilerplate, and standards make sure this doesn’t happen.

Standards don’t just come from lawyers or unions. Andy Clarke’s Contract Killer is extremely popular among freelance designers—in fact, a version of his contract is one of the most viewed and downloaded items at my company, Docracy, which provides an open collection of legal documents. This is likely due to Clarke’s strict no-legalese policy. He even dropped the classic impersonal language, transforming it into a natural dialogue with the client: “What both parties agree to do.�

The result is a set of informal yet clear rules that cover essential legal provisions, like assigning copyright only upon full payment and reserving portfolio rights.

But where is all the horrible small print?

There is none. This contract shows that it’s possible to enter a binding agreement using everyday English. Your lawyer may not like it, because he may fear not being taken seriously enough, or feel uneasy not following his standard. Fortunately, this is something that has actually changed since the Romans. They had to use formulae and magic words to make sure the contract would be upheld in court, while we typically enjoy shared language and literacy skills.

4. Clausulae insolitae indicunt suspicionem

Unusual clauses will raise flags.

We all like standards, but let’s face it: Everything is negotiable, and people will always try to sneak advantageous clauses into the contract. You need to make sure you don’t sign anything you’ll regret, and spotting bad provisions is not a lawyers-only job. Scanning contracts is a necessity sometimes, so always look closely at the following parts:

• Parties, particularly when companies are involved: Make sure the people you’re dealing with have the power to bind their companies.
• IP provisions: Who owns copyright and when, and what the licensing limitations are.
• Your representation and warranties—the fewer, the better: underpromise and overdeliver!
• Termination: What happens if someone wants to get out of the deal early?
• Dispute resolution: The clause no lawyer ever wants to give up. Watch this one, because you don’t want to let a client drag you to a court a thousand miles away. If you can agree to arbitration or mediation, even better.

The more contracts you read, the better you’ll get at spotting weird provisions. Trust your judgement: If something doesn’t seem quite right, it probably isn’t.

At minimum, you should ask for an explanation. This is never a waste of time. If you have a lawyer do this, just find someone who doesn’t bill by the hour, or this negotiation will take forever.

5. Pacta sunt servanda

A deal is a deal.

Both in Roman times and today, if you don’t deliver, it’s on you. Keeping promises is fundamental for a professional reputation. That’s why you have to be clear and consistent in the promises you make.

How do inconsistencies arise? One common way is having a statement of work (SOW) that’s not compatible with a master service agreement (MSA). This happens more often than you might think, particularly if no one has ever read that thirty-page agreement. If it’s not clear which one prevails (yes, you have to write it down), you can find yourself in a legal mess.

For example, capping your hours in the MSA is a great way to mitigate the fixed-fee or milestone-based pricing you agreed to in the SOW, but only if the cap prevails! Vice-versa, if you know you’ll only be looking at the SOW and all the special payment provisions are in there, then it should probably override any older pricing rule buried in that thirty pages of small print.

Even better, an MSA doesn’t really need to include thirty nasty pages of small print.

Making a modern contract

I bet you didn’t read iTunes’ latest Terms and Conditions before clicking “I Agree.� We try to read contracts when we think it’s important, but it’s not easy, for several reasons:

• Contracts are optimized for print, but today we read mostly on screen.
• They are often poorly formatted and typographically awful.
• Many elements are difficult to read, like definitions and ALL CAPS PARAGRAPHS.
• They’re full of legal jargon, not plain language.

The good news is, these problems can be fixed.

Typography

Let’s start with font. Designers and clients alike now mostly read on screens. Electronic signing is a reality, so there are few arguments for optimizing a contract for print.

If you’ve studied typography, you know how to use contrast, proximity, and alignment to create emotional and persuasive effects, and you can apply these same principles to legal text.

Matthew Butterick, author of Typography for Lawyers, has even developed a font optimized for legal text: Equity, a serif font that also looks good on screen—a nice compromise. Whatever you choose, ensure you give your contract balance and contrast.

Typesetting

Contracts are a very peculiar subset of legal documents. How can you use typesetting skills to improve their layout?

• Structure them in nested lists. HTML does such a great job handling nested lists and headings, so why use a crappy text editor? You often see reckless tabbing and manual line breaks made by frustrated people desperately trying to keep order. Using tools of the trade like Markdown, LaTeX, and Illustrator, you can do better in no time.
• Divide the boilerplate from the custom terms. Highlight relevant content like party names, important numbers, and percentages so they stand out from the boilerplates and can be easily skimmed.
• Make important clauses stand out, but never use all caps. The law only asks the drafter, in specific situations, to highlight certain provisions—and there are ways to do that without sacrificing readability. If your lawyer thinks differently, she’s wrong.
• Allow longer paragraphs. Words need to “breathe,â€� but contracts also need to cluster like clauses for readers. For this reason, line length is a delicate choice that depends both on the length of the clauses in your contract and on the font you choose to use. If you opt for a sans serif, you might get away with longer lines, but be sure to keep generous margins and line spacing (ideally, 120 to 145 percent of the point size, according to Typography for Lawyers).

You’ll also need to decide whether to justify or left-align text. The general rule is that justified text only works with proper hyphenation. This means you’ll have to manually input non-hyphenated breaks for the words you want to keep on the same line. Unless you’re drafting the contract yourself from start to finish, this is a daunting task. And, if your contract manages to have short paragraphs, ragged-right looks more natural, particularly on screen.

When we redesigned Docracy’s PDF typography, we opted for a longer line with lots of white space on the sides. This lets even the longest contract breathe, yet creates a compact final look:

Plain language

Now for the million-dollar question: Why are contracts written in legal jargon? Sadly, it’s because lawyers are too lazy and change-averse to rewrite their forms. The good news is, this is changing. And you can contribute; most formulaic “legalese,� like herein, thereof, or hereby, can just be replaced with “this.� You might even be able to remove entire lines, but better check with a lawyer to make sure.

Here’s an example of traditional contract language rewritten in plain English. Not only is the new version half the length, but it’s much easier to understand:

Classical roots, contemporary documents

There are many reasons the core rules of contracts are still in place two millennia after the fall of Rome. But there are other elements that we can, and should, take to the twenty-first century.

If we want to address the readability problems unique to our era—and improve communication with our clients—then it’s time we fix the language, layout, and typesetting of our contracts. And who better than designers to do it?

RSS readers: Don't forget to join the discussion!

Contracts are a source of anxiety and dismay in creative work, but they exist for a good reason. A good contract ensures that you and your client have the same expectations, and protects you in case things go south. Ideally, your contract should be a combination of industry standards, legal protection and personal preferences. To help you get started, here’s a set of 10 basic agreements for a variety of common business situations that creative professionals face.

How much do you expect to be paid in advance? What happens if a payment is late? Who will own the rights to the work, and when? Contracts can seem overwhelming, but don’t need to be. Reading through these documents is an opportunity to learn from experienced designers in a collaborative setting. Furthermore, every document comes with usage statistics and can be legally signed online for free (at least if you are in the United States). All content on Docracy, the free repository of legal documents, is open source and free to take (or even improve), so please feel free to share your own examples and experience.

Image credits: Joybot.

Here’s the full set that you can customize online:

1. AIGA Standard for Professional Design Services
   Drafted by the premier design association in the US, this is probably the most complete designer-friendly agreement out there (works best for big projects). Multiple versions available, with different licensing options.
2. Contract for Website Development & Identity Work, with Annotations
   A modern Designer-Client Agreement, drafted by a New York lawyer. It’s loosely based off the AIGA form, but closes some loopholes and trims the fat. Informative annotations are provided to guide you through the various clauses.
3. AIGA/GAG Speider’s Designer Contract
   The contract that the designer/writer Speider Schneider sends to his clients, as featured on Smashing Magazine. It’s a hybrid of the AIGA and GAG (Graphic Artists Guild) models, along with some common sense changes. Plus it’s optimized for e-signing to help save some trees.
4. Contract for Web Design
   A plain language agreement for Web design development projects, based heavily on the Andy Clarke’s brilliant “Contract Killer” article on 24 Ways. The beauty of this document is in the language: this is a non-legalese, plain English, straightforward pact that two reasonable people sign.
5. Shortform Design Contract
   Jacob Myers, the author of this sample, is a lawyer/developer who works closely with designers. In his words: “The next time a client comes to you with a quick job, save yourself time and aggravation by sending them a Short Design Contract to be signed BEFORE you start working. The doc is basically an abbreviated contract confirming the scope of the job, the schedule, fees to be paid and essential terms and conditions. Use this style of contract for quick jobs or where a full-blown contract would make the client apprehensive.�
6. Work for Hire
   A short and flexible work-for-hire agreement, where the contractor is an artist being hired by a creative firm for a work of design. Remember that with this kind of contract the IP rights are automatically assigned to the commissioning client.
7. Consulting Agreement
   If you’re hiring a consultant, this is a great starting point: a model agreement by a top US law firm. If you are the consultant, you might want to mitigate some of the provisions of this client-friendly document, like this version (see changes).
8. Shortform NDA
   The contract that everybody signs, sooner or later: The Non-Disclosure Agreement. This is a unilateral example, so if both parties are disclosing confidential information to each other, make sure you use a Mutual NDA instead.
9. Contract for Original Illustration Work
   A simple, commissioned illustration agreement drafted by a lawyer based in Portland. This contract is pro-artist, and a flat, non-refundable commission fee is charged. All rights are non-exclusively licensed, but because most people want a “unique� piece of art, the artist agrees not to resell or publish the work, except for portfolio use (such as posting on DeviantArt, Dribbble, etc.).
10. Simple IP Assignment
    Work is done, money is in the bank, but you forgot to give the IP rights to the client? Fix the issue with this simple IP assignment. Also useful when you hired someone but forgot to have the rights assigned in the original contract. Get this signed to tie up any loose ends.

You can also download the full set in PDF/DOC, with one single file (.zip).

Don’t forget that the legal stuff is important, and so please treat these documents as a starting point. A good lawyer can help you review these examples and tailor them to your particular project and local laws. Standard documents are useful and educational, but are never a substitute for legal advice. Docracy, Smashing Magazine and the original authors of these documents disclaim any liability connected to the use of these material without a licensed attorney.

(vp) (jc)

© Veronica Picciafuoco for Smashing Magazine, 2012.