Contracts come in all shapes and sizes, as well as varying degrees of evil. Let's take a look at what yours should contain.
Nobody likes negotiating contracts, but if you’re serious about making websites in exchange for green pieces of paper that generate happiness, then you better have a contract ready and be able to defend it. Contracts come in all shapes and sizes, as well as varying degrees of evil. Some are tens of pages long and full of hot air, and others are brief but devious. Like any ill-fitting suit you’d take to a tailor, you better have your contract vetted by an IP lawyer as soon as you can afford it. Here are 5 tips toward writing and negotiating better contracts for freelance web designers.
1. Always be willing to walk away.
I can’t underscore the importance of having this attitude enough, so I’m going to double-underscore it: Always be willing to walk away! I admit this is easier to say if you’re not freelancing full-time. But if you are a full-timer, you want to minimize your risk as much as possible because you’re far more vulnerable to drastic changes in your income such as losing a paycheck to poor planning.
One of the surefire ways to minimize risk is to never agree to terms out of desperation. This is good planning. A quick fix to your situation may heal your checking account in the short term, but remember that you’re only treating symptoms of an underlying disease, which is poor planning on your part (e.g., you don’t have enough money saved up to go out on your own as a freelancer; you’re not budgeting wisely enough to get from month to month on what income you’re able to rake in as a freelancer, etc). A bad deal is bad usually because it has unforeseen consequences on your business, and it’ll cost you a lot more in the long term than not having accepted it in the first place. Listen to that voice inside of your head that says, “I have a bad feeling about this.” It’s almost always right.
2. Don’t be a Chatty Cathy.
While you want to be as clear and honest as you can when explaining what your terms mean in discussions like this, you shouldn’t start digging yourself a grave by providing more information than is necessary to get your meaning across. This ties into avoiding “what if” conversations (see below).
The client doesn’t need to know about your past experiences, such as the fact that you got burned the last time you accepted this or that clause, or that you have some convoluted philosophical stance concerning copyright, and so on. Conversely, don’t let your client goad you into discussing these things, because this will also lead to “what if” conversations. You should feel confident in your terms and what they mean and be able to explain to your client why they’re there, if she asks, without hesitation. The goal in discussing terms is to make it crystal clear that everyone understands what she’s getting into so that no one feels uncomfortable signing. It’s very easy to poison the relationship at this stage, and you don’t want to inculcate resentment between parties before you’ve even started working together.
3. Avoid “what if” conversations.
“What ifs” are ugly guesses as to what villainous activity might result from this or that clause not being in place to protect either party. And I don’t use the word “villainous” lightly–as your client dreams up scenarios of your potential criminal behavior, you’ll start to feel villainized, because you don’t have any intention of doing any of the things they’re imagining, and it’s pretty much an assault against your personal integrity to assume you would engage in such activity if these restrictive clauses aren’t in place from the get-go.
Take for example the what ifs that emerge from a discussion about non-compete clauses. Your client may argue that if you express no intention of “competing” with her business by taking on work of a “competing or similar nature” while you’re working with her, why not just sign the legal verbiage that expresses as much? The problem is that conversational promises and legal language are not the same thing. What’s discussed by two people talking about moral integrity in a room alone together has a very different import than what restrictive clauses are talking about on paper, which is oftentimes designed to be open for interpretation by everyone outside that room, including your client’s future self. When you are faced with language you know can be unpacked to encompass a whole universe of trouble, politely explain that it is your policy not to sign contracts with that kind of language and that you are willing to walk away from the contract if such terms have to remain in the contract.
Remember, you’re not a lawyer and you may not always have access to one, whereas most corporate clients do. If a term makes you feel uncomfortable, don’t agree to it out of ignorance or fear. Walk away.
4. Always require a deposit (but not too much).
If you don’t take a deposit from your client, your client has no skin in the game and you end up looking like a dope who’s willing to work on ponies and pipe dreams. You and your client both need an incentive to work on the project, and a client who’s only interested in seeing a final product or a developer who’s only interested in getting it done as fast as possible aren’t going to mesh. On the flip side, however, I personally don’t like taking too large a deposit, especially if the relationship is new and potentially volatile, and especially if it’s a big project. In the latter considation, I like to keep the incentive of compensation ahead of me, rather than behind me. A refundable deposit is the easiest way out of a sticky situation: the only thing both parties lose is time, and there’s no protracted argument about who owes who what.
5. Set expectations through clearly defined deliverables.
This one seems obvious, but if it’s taken for granted, what you end up with is scope creep, frustration on both sides, and a confused or disappointed client. When it comes to web design, deliverables are both immaterial and highly customizable: a perfect storm for misconception. The more clearly and specifically you can define the individual components of the deliverables, the less likely it is anyone will be confused as to what they’re getting at the end of the day, and what is and isn’t in scope. If you’ve had a conversation that goes something like, “That looks great. But shouldn’t it also have TKTK feature we never talked about? I mean, I see it on all competitors’ websites so it seems pretty standard,” then you know exactly what I mean: in your client’s mind, the “TKTK” feature might seem perfectly reasonable for her installation to include, even if she didn’t bargain for it as part of the scope of work. It’s really hard to change her mind about what she thinks she’s getting if you didn’t inform her properly to begin with.
For example, when I deliver a WordPress website, my contract will not only outline what happens in each phase of the development process (discovery, ux, design, development, deployment), but what deliverables are being created in each phase, and how the time it takes to make each component adds up to the total fee:
- the base WordPress installation, which includes everything that WordPress already does out-of-box, plus;
- a custom WordPress theme based on the custom design we create earlier in the process (including PSDs);
- an enumerated list of custom features that the theme will include and which WordPress does not support out-of-box;
- a list of what browsers, OSes, and devices the website will be compatible with;
- X number of days of phone/email support after launch;
- written documentation, if negotiated as part of the fee
This way, the client knows exactly what she’s getting and when, and there’s no confusion about what features and functionality should come with each component. It’s a lot of paperwork, but it’s definitely worth it in the long run.
I’d be curious to hear what other designers are thinking in the day to day contracting process. Brief or long contract? Half deposit or fourths? Feel free to chime in.