Protect Yourself: Write a Contract
Rich Maggiani
For independent consultants, contractors, and business owners, operating with contracts is paramount to your success. Contracts permit you to define the project, how it will be completed, and how you will be paid. They offer methods of restitution should things not proceed as planned or anticipated. Contracts also demonstrate how serious you are about yourself and your client, and make a profound statement about your professionalism. Contracts are not to be taken lightly. Never go it alone; always have a competent lawyer review and provide legal advice when writing a contract or before agreeing to any terms dictated by your client. This paper presents a number of terms and conditions for your consideration. Operating without a contract simply is not good business. A contract allows you to define a project, articulate the terms under which you will work, detail the price and payment terms, and present methods for resolving disputes. Well written contracts help avoid miscommunication and problems, and also protect you if problems arise. Contracts can be written for specific projects or to define the overall terms of a working relationship, with addenda (statements of work) for individual projects. For either type of contract, you should hire a wellqualified lawyer to write or help you with the final product. Good contract lawyers fully understand the intricacies of contract law and are familiar with courtroom interpretations of the law. Some clients will have their own contracts for you to sign. Remember that these contracts are written to protect the client, while your own would protect you. If you must sign the client’s contract, review the terms with your lawyer. Only sign the contract when you fully understand and accept all its terms. And remember that you can negotiate with the client to remove or alter terms you find undesirable. resources available to you. This can be part of the contract or an addendum to it. • Include a pricing section detailing your hourly rates or a fixed price. If the project is for a fixed price, take pains to detail exactly what you will do — the scope of the work. This helps you determine out-of-scope work for which, of course, you will be paid extra. • Specify a term for the contract, such as for a year or through a specific date. • Hours of work can specify how many hours you will work per day or week, and perhaps specify higher rates for longer hours. • Payment terms should include deposits and final payment options. You can also make continuation of work contingent on prompt payment or withhold final files until you receive final payment. • Remember to include a stipulation that will reimburse you for incidental costs, such as copying, travel, mileage, long-distance telephone, shipping, postage, and courier. • Client changes, beyond the original scope of the project, often are inevitable. Your contract should explain how you will handle them. • Cancellation or termination provisions allow you to define your compensation if the client stops the project. These provisions can include a kill fee to cover any inconvenience and lost income you incur as a result of the abrupt change of plans. • If outside vendors and/or subcontractors (such as printers, illustrators, trainers, or other writers) are used, define the terms of their service and compensation, and specify who is responsible for their supervision. • When discussing equipment, describe its source and the purchase or rental terms. Be sure to state whether you or the client will be the vendor’s primary contact. • Scheduling provisions can limit your responsibility for meeting deadlines if your reviewers fail to meet their deadlines or provide pertinent, comprehensive comments.
Contract Provisions
Here are some considerations for various sections of a contract that you dictate. • A statement of work should define the specific terms of an individual project. Consider detailing here various measurements of work completed and remaining, such as a page count (if you are submitting a firm price), a set number of review cycles, and the
• Ownership and copyright are usually not relevant to a work for hire. However, you should identify who retains these legal rights. Strongly consider retaining these rights yourself until your client pays for the work. • Enhance your portfolio by specifying the wording of credit lines and the number of copies of the final product you are to receive. Make sure you will have samples to include with any pending work proposals. • Representations enable you to ensure that all parties to the contract are acting in a lawful manner and have the legal right to their contributions. • Limitation of liability enables you to protect yourself in case problems are attributed to you, especially when these problems are beyond your control. It’s certainly acceptable terms to absolve yourself from all liability; after all, when a client accepts your work, they should also accept liability. • Enforcement, severability, and attorney and collection fees define how the contract will be enforced, how you (and the client) can sever the contract, and how to collect expenses for enforcing the contract. • Modifications to the contract define how changes can be made after the contract has been signed. • Choice of law and jurisdiction allows you to define the jurisdiction for any legal proceedings at the place that is most convenient for you.
Finalizing the Contract
Depending on where you conduct business, there may be other considerations that you will want in your contract. Your lawyer can help determine these additional sections. And remember to always consult your lawyer before you present or agree to any contract terms. Make two originals of the contract. Secure the contract by ensuring that an authorized representative signs and dates both original contracts on behalf of the client. Consider having their signature corroborated with the signature of a witness, or in extreme cases, notarized. Only sign the original contracts after your client has signed it. When both are signed, give one to your client and retain one for yourself.
Rich Maggiani President/CEO Page Designs Inc Creative Communication Two Church Street, Suite 3A Burlington, Vermont 05401 802.658.4207
Rich is the President/CEO of Page Designs Inc, a marketing communications agency. He helps promote and brand clients by creating and implementing a marketing strategy, through graphic design, advertising, public relations, and Web site development. Rich is also an award-winning technical writer, teacher, and trainer with over 20 years experience. He has taught graduate courses in writing, communication, and business. Rich is deeply involved in community service and political activities, and is the Chair of a statewide business organization. In 1995, he worked with a small group of writers to establish the Vermont STC Chapter. Rich is a Senior member of STC, the membership manager of the Consultants and Independent Contractor SIG, and is organizing the 2002 STC Region 1 Conference.