I have a confession to make. I don’t like lawyers.
A few years ago, I was in contract negotiations for buying a new home and found it an important investment to use a lawyer to draft the necessary contracts and conduct the related negotiations. During this process, I fell in love with a lighting fixture in the new home and asked my lawyer to include the fixture in the sale. My lawyer spoke to the property owners’ lawyer, who supposedly spoke to the owners — and the answer was no. I then chose to call the owners directly. Not only did they give us the lamp without any fuss, but they also invited us to spend the afternoon with them so they could demonstrate the care and maintenance of the pool. It was both a friendly conversation—not a “legal negotiation” — and an important lesson for me. That experience, combined with my 20+ years of experience consulting with leading creative firms, has influenced my best practice advice: For most projects, you should avoid using lawyers in the contract process.
Lawyers just complicate situations by “obfuscating” real meaning in legalese, and they can become roadblocks to building a trusting client relationship. In addition, many clients are not accustomed to receiving complex, legally-driven contracts from their creative partners, and this can turn them off (much like a prenuptial agreement). Finally, the more complex a contract is, the longer it takes for client approval, which slows down the whole project.
Of course, there are exceptions to every rule, and lawyers are a must for situations when equity and/or licensing agreements are required. If you’re a litigious person, have endless funds, patience and time, and you want to protect yourself just in case you have to go to court, then use a lawyer to write your contracts. However, I believe a contract is meant to guide the client-designer relationship so you never end up in court.
7 Tips for a User-Friendly Contract
Before you start drafting your own contract, consider the following recommendations to ensure that it’s signed quickly:
- Eliminate all legalese such as “shall,” “hereof” and “thereto.”
- Call it a “letter of agreement” instead of a “contract.” It sounds nicer.
- Don’t use small print. Doing so makes it seem like you’re hiding something.
- Use your firm’s name and the client’s name throughout the document instead of the generic terms “client” and “designer.” The agreement will read as if it’s been customized specifically for your particular relationship.
- Be confident and understand what your terms mean. I cannot tell you how many creatives don’t even understand their own contracts because they had lawyers draft them. If you don’t understand the terms yourself, your clients won’t either, and you can’t negotiate effectively.
- Walk through the contract with your client to ensure that it’s understandable.
- If a client requires specific legal clauses, such as liability and confidentiality, more than likely, the client will give you their own standard in-house agreement to sign. But that doesn’t mean you have to sign it without negotiations. In fact, before the client sends you their agreement, give them your firm’s agreement and ask that they (or their legal team) incorporate the same conditions you’ve outlined into their contract. This way, the client knows up front the important parameters for your relationship.
Over the years, in reviewing thousands of lawyer-developed contracts, I’ve realized that most lawyers don’t know our industry well enough to include important industry-related clauses that provide the much-needed up-front clarity on common project- or relationship-driven expectations and challenges.
Beyond the more obvious terms and conditions, the following outlines key clauses that are often overlooked but nonetheless critical in guiding a successful relationship. Again, contracts are less about protecting oneself in a court of law and more about guiding the relationship based on well-defined parameters. The clauses are intentionally written to be easy to understand, as if it were just a conversation between design firm and client.
13 Key Clauses for Guiding a Successful Relationship
Timelines and schedules are a common industry challenge. Clients expect creatives to work all hours under even more compressed schedules, so having terms that prevent this from happening and clearly defining what is expected will result in a more seamless relationship.
Work Hours/Days: This agreement assumes work will be completed within the standard work week (Monday through Friday, 9 a.m. to 6 p.m.). (Design Firm Name Here) is closed on all major holidays and the entire week of Christmas and New Years.
(Note: Of course this means that you should not answer the phone after these hours!)
Schedule: The work outlined in this agreement will be turned around within a reasonable, non-rush schedule to be determined, where possible, and mutually agreed upon at the start of each project. Late or weekend hours incurred to accommodate additional compressed deadlines, if needed, will be negotiated separately. Our schedules assume timely review and response by (Company Name Here) of all deliverables.
It’s also important to outline what your expectations for the client are in the relationship. For example, who is the main client representative and key decision-maker (they should be one and the same), and what are the materials/services they’re expected to provide—and when?
3. Client Representative. (Company Name Here)’s representative, (name of client representative here), has full authority to provide and obtain all necessary information and approvals throughout this project. (Name of principal of design firm here) and (name of client representative here) represent that they have full power and authority to enter into this agreement and that it is binding upon (Design Firm Name Here) and (Company Name Here) and enforceable in accordance with its terms.
4. Client Responsibilities. (Company Name Here) and/or (Company Name Here)’s subcontractors will provide accurate, complete and timely information and materials to (Design Firm Name Here). (Company Name Here) guarantees that they have all the necessary rights and ownership in such materials to permit (Design Firm Name Here) to use them for the project.
5. Client Approvals. (Company Name Here) will approve and proofread all final designs, type, press proofs and test sites. (Design Firm Name Here) will make all efforts to ensure that no information is misrepresented. However, (Company Name Here) assumes all responsibility for content. (Company Name Here)’s approval of all tangible materials and artwork will be assumed after the work has been submitted to (Company Name Here) for review, unless (Company Name Here) indicates otherwise in writing.
6. Client Changes. In order to avoid errors, text changes and corrections will not be taken over the telephone and must be provided electronically. Any text with extensive changes must also be provided as marked up hard copy, indicating the revised text.
Samples and Credit
7. Samples. (Design Firm Name Here) can use samples or photographs of the work created under this agreement and the name of (Company Name Here) for publications, exhibition, competition and other promotional purposes (such as our website) once the project has been made public.
8. Credit. The following credit will be mentioned on all publicity/promotion of this project and/or our relationship, including, but not limited to, awards, competitions, press releases, etc.: (List required credit here, i.e., Design: [Design Firm Name Here]).
Beyond the incremental payment schedule, you should include the following language that provides further protection in common problem areas, including:
9. Delays and Termination. All payments received are not refundable in the event the project or the relationship is terminated for any reason. If any part of the work for this project is delayed for longer than 30 days, (Design Firm Name Here) will bill for work completed.
10. Consequences of Non-Payment. (Design Firm Name Here) reserves the right to suspend work and/or withhold issuing any project documents if invoice payments are not received within a reasonable period of time from invoice date.
Ownership and the quality of electronic files can also be a sticking point with clients, so including protection in this area is critical.
11. Length of Storage. (Design Firm Name Here) agrees to store all final electronic files created for (Company Name Here) for a maximum of two years.
12. Retrieval Fee. (Design Firm Name Here) will charge $XXX to retrieve/transfer any elements of our electronic files from archive at the request of (Company Name Here), providing related usage rights have been negotiated.
13. File Requirements. If (Company Name Here) has specific requirements for how project files must be prepared, (Company Name Here) must communicate this, in writing, to (Design Firm Name Here) before the project begins.
The language provided above is generic and isn’t meant to be a comprehensive list of terms nor a full agreement. As recommended earlier, the final terms you use should be customized to your firm and each client relationship. While this type of informal language may not be legally binding, it will help guide the relationship so that you won’t have to go to court.
As you can see, an agreement that includes clauses that are free of legalese, direct and to the point will be easy to read and less formal. Nonetheless, it can be equally powerful at communicating the important conditions of a relationship. An agreement written in this manner will almost always be more effective and easier to negotiate than a contract drawn up by lawyers. The result is a mutual understanding of the terms by both the client and the creative team, friendlier negotiations, and quicker approvals.
Business Essentials for Graphic Designers: