Q:If a client posts content that is illegal (copyright, or photos of people or buildings without consent, not porn), can I be held liable? Sometimes it's on my (read: amazon's) server, sometimes it's not. Is a "we're not liable for the content" clause in our contract with the client enough?
You have to be really careful about this sort of stuff. Often there are overly broad warranty and indemnity provisions in agreements, which might shift (or at least attempt to shift) the liability for this sort of thing to you. You need to make sure that the site has a DMCA notification/takedown procedure; so, you can take advantage of the safe harbor.
Without looking through the whole clause and contract (and probably the website terms and conditions), it’s not possible to say whether you might be liable for your client posting infringing content.
Q:I made a few boo boos. Main boo boo: I turned in 2 different invoices with 2 different price tags on the invoices to 2 completely different people. The price tag on the 2nd invoice is significantly highly. Nobody had mentioned anything about it. The parent company killed that division, and it has been 9 months with no payment. They are not a small company and should be able to afford the price tag. I was considering legal action, but am worried about the boo boo being exposed.
Without knowing more, it’s hard to comment with any sort of specificity… But, as Mike might say, Fuck the boo-boo; get paid.
Q:I run a small one-man design consultancy, and typically work under the terms set out in a standard contract that I use which is loosely based on the terms from the 'Killer Contract' (check google—can't add the link) ...I'm getting busier, and needing to take on subcontractors to help with some of the work I've got on my plate, and I'm wondering if you could give me any advice about what additional clauses or details I should include to craft a solid but derivative subcontractor agreement?
Basically flip the advice I give about contracts with clients on its head. In other words, you need to make sure you get the appropriate rights to the intellectual property that is being developed. You also need to make sure that any representations, warranties and covenants you make in your agreements with your clients are carried over. And you need to pay attention to liability, indemnity and insurance, as well as worker classification (independent contractor v. employee) issues. Truthfully, it’s hard to summarize in answering a question. I should probably write a longer blog post on the subject, but likely won’t get to that right away.
Q:Hey Gabe, How hard is it to file for a trademark yourself. If it the kind of thing a smart person with an afternoon can figure out, or do you need a lawyer? What about companies like legal zoom that offer it as a service for relatively cheap?
Honestly, it’s not that difficult, but there are a few things that you need to understand, all of which a lawyer with basic trademark knowledge can explain. I think a reasonable flat fee for assisting with a single-class filing with the USPTO is about $1,500 (not including the USPTO filing fee). I’ve never evaluated LegalZoom’s trademark filing services; so, I can’t comment on that.
Q:Hi Gabe, quick question. In outlining the "state of jurisdiction & dispute resolution" between myself (in one state), and the Client (in another state), which is more appropriate? The Client is pushing hard for jurisdiction to be within their state. I've never had trouble in the past with a Client accepting the jurisdiction of my state regardless of their location, but was curious what the considered "standard" was. Have I just been wrong/lucky all along?
Hey Stephen,
There really isn’t a standard, but I find that larger companies usually fight hard on this one, which is ironic… because they often have national law firms representing them, and may be subject to jurisdiction in numerous (or all) states, anyway. You, on the other hand, are likely subject to only the jurisdiction of your state.
Honestly, and I hate to say it, but this is one of those red flags for me. If the client is pushing hard, they might have a reason: like they’ve been in disputes before, and know that it’s an advantage to have their state be the venue. On the other hand, it could just be some sort of internal “policy” if it’s a big company.
Have you suggested eliminating the jurisdiction/venue clause altogether? You might also suggest jurisdiction being valid in either state.
Good luck.
Gabe
Q:I am a designer (read hobbyist) who does paid work for acquaintances every now and again. I set up a site with a business name for just a touch of street-cred. This is not an actual business name, I have no EIN (I barely know what that is), and I don't plan on incorporating (or whatever) any time in the near future. However, the name is solid and I really don't want it "stolen". Is this a valid fear, and how can I protect myself (even if I have to get an EIN to do it)?
Hey Don,
Two things: (1) filing a fictitious business name registration with your local (county or city, depends) government; and, much more importantly, (2) registering the trademark (name) with the USPTO: www.uspto.gov
Gabe
Q:I just started a web dev shop with a few other developers and we've been shopping around for a lawyer. I think we've settled on one that we like. However, he's rather expensive and I really want to make sure he is the guy for us. Are there any questions that you might ask to make sure he really knows his stuff? Or is it usually just a trial and error situation? For example, did gabe become the lawyer of choice based on a track record of some kind, or did you just know he was the fuckin' man?
Hey Robert,
Give it a shot with him. It’s not a marriage; so, if you don’t like him after a few months, you can go elsewhere. My guess is you’ll be satisfied.
And thanks! ”Fuckin’ man” is the best compliment I’ve had in a while. ;-)
Gabe
Q:I'm doing some design work (branding/web) for a friend who is starting a business. I know money is tight for them now, so I was thinking in lieu of payment I could ask for a percentage of their sales each year. Legally, what would be required to set something like that up? (I'm aware of the potential for little/no payment if their business fails, but I am willing to take that risk.)
Hey Chris,
That’s very doable. You just need a clear contract that sets for the payment terms and rights, etc.
Gabe
Q:What do you think about things like CSS Killswitch for clients who refuse to respond to continued attempts to collect on final payment? Obviously, I am talking about a last resort prior to litigation for a kind of situation where lengthy diplomacy has not worked.
I think it’s cool. Maintaining control (literally and contractually) over the website, software or other deliverables until payment is received is very smart.
Q:Can you talk about PCI Compliance? What precautions do I need to take if my project is looking to store (and routinely, process) customer credit card data?
I think the best thing I can do for you is send you to the PCI Security Standards Council website, which you may have checked out already: https://www.pcisecuritystandards.org/
Short story, make sure you’re compliant.
Good luck!
