Q:Hi Mike/Gabe, In "Design is a Job" you mention clients waffling over decisions, and if they don't get decisions to you have to charge them for extra 4 days of work. I recently had a client put a 4 week deadline on a project, which was a scramble to achieve. Two days after signing, he stalls the project for 1 week, then 2 more days, then another week. How do you protect yourself against this from the get go, and how do you determine what to bill if a project takes longer (just for overhead?).
This is truly a sticky wicket.
Erika and I discussed related contract/timing issues on a very recent episode of Running From the Law: http://www.muleradio.net/rftl/42/
There are a number of different ways to/models for dealing with this, including:
(a) The sprint model, where the client pays for a two-week sprint in advance, and you commit for a certain number of hours (say up to 40/week) during that two-week period. It doesn’t matter whether or how much you work during that period, and the payment is nonrefundable. In other words, the client has reserved your time.
(b) A “pause clause” (credit to Carl Smith of nGen Works for the name), which allows you to pause work, keep any advance/deposit, bill for any additional work done prior to pause not covered by the deposit/advance, and recommence the project at your convenience (and subject to reasonably modified terms if you’d like) if/when the client is ready.
Both of those options can be tricky to negotiate, but they do provide protection in the case of the scenario you describe.
Q:This one is for Gabe: Can you recommend a lawyer (contract law) in Delaware (or who practices in Delaware?) Perhaps you have a friend/colleague/college buddy who practices in DE.
I only know the name of a litigation guy in DE, but most corporate lawyers out here in CA and other states should be at least somewhat familiar with DE law.
Q:Hi Gabe, I've been at a UX design agency for 2.5 years and am now leaving to start my own freelance/consulting business. Should I hire someone like you to help write my initial contracts? (If so, but you're too busy, who should I hire in the Bay Area?) Or, should I just make my own contracts based on what my agency had and the advice in "Design is a Job"? Thanks!
If you can afford it, you should have a lawyer prepare your agreements. If you can’t, “Design is a Job” is a great resource. I also think the AIGA standard form agreement is decent, but it’s not right for everyone, and has some moving pieces.
I am accepting new clients under certain circumstances, and would be happy to chat with you. Please feel free to email or call me in the New Year.
Q:Long shot I know, but I need someone like Gabe in Cape Town South Africa. (Hoping someone here's asked that question already?) I have a client not wanting to pay me for work and also basically need to get some contracts together. Many thanks!
Oh man… Sorry James, but I don’t know anyone out there. Try local business contacts, resources, chambers of commerce, etc.
Q:Hi Mike and Gabe. Are there any rules of thumb for working on a retainer basis for design services? A new potential client wants this because they want "better rates for the volume of work" and "we want your creative ideas". For a small studio that's pretty maxed out already, is this going to be a bad idea? I wonder if there is a more "safe" alternative...
You don’t want to lose your other clients or become dependent on one cash cow client. I’ve had clients try this out on a 3-month trial to see how it works out first. Sometimes it does; sometimes it doesn’t.
Make sure the contract is clear about expectations for availability, response time, scope, max hours, etc.
Q:Hi Gabe, Thanks for all your advise on your site. I've been working with a startup for a long while, and they finally sent me a document with the stock agreement. We spoke in person about this and they said I'll have 10% of the stocks. However, in the agreement it only mentions that I'll have 100,000 shares of common stock but doesn't mention total number of shares or percentage. Should I make this adjustments before signing? What's the best way to go about it? (gerardodm [at] gmail). Thank you.
Tough (but common) situation Gerardo. This is something you should definitely engage a lawyer to look at. Equity comp deals (stock and/or options in exchange for services) are tricky contracts, and have a lot of important provisions, with important implications.
Q:Is there anything you can put in a contract to make sure a contractor completes a job on time? I have hired a developer recently that is taking forever to finish things up and there haven't been any changes in the project, they just overcommitted and now don't have the time to finish things up soon. They keep saying we are close but things just keep dragging on. Any advice for the current situation and advice for future contracts to avoid the same situation on other projects? Thank you Gabe.
There are a number of provisions you can include, including a “time is of the essence” clause, and even deductions from or withholding of payment for late deliveries.
Q:Hi Gabe, I have some web code (php/mysql) that has attracted attention of a company, who would like to purchase it. I want to maintain copyright/IP over it, but would like to do business with them. How do I put a value on my creation, and how do I draft an agreement with the company? Should I license it for an ongoing fee, or ask for a lump sum? How do I ensure my IP is protected? Thanks!
Tough call. Depends in part on what they want to use it for. If it’s something they want to sublicense to an end user, it might be best for you to have a per-sublicencse fee, if they’ll agree to that. If it’s something (like a lot of software) that has a limited useful lifespan, a one-off license fee might be the way to go. You might also consider whether it makes sense to file a copyright registration application (which is something you have only a limited period of time to do if you want full protection).
From a negotiating standpoint, because they came to you, I’d probably ask them what they want and how much they’re willing to pay before you bid.
Q:Dear Bestest New Media Lawyer in All the Land: I have urgent need of the very legal services which you provide, but tragically I live in Portland, OR, rather than San Francisco. Can you recommend any colleagues here in Stumptown?
I don’t actually know anyone who does this sort of work up there, but I do have a couple of OR clients.
Q:I work in-house creative, as a producer - who happens to also be the copywriter. For a long time, I've had all the work I've created for my company on my portfolio and today, I was asked to take it all down. After acting on their requests, my portfolio is now filled with two pieces of spec work I did for school. Do you have any advice on how I could resolve this issue with my employer and not have my work history erased?
That’s a tough one. Whether you have those type of rights may very well depend on the agreement(s) you’ve executed with your employer. As a general rule, an employee’s copyrightable work does belong to his/her employer. If you can’t get anywhere with your employer in terms of getting some of that work back up in your portfolio, it might be worth having a lawyer take a look.