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11-08-2010, 10:58 PM
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kpmedia kpmedia is offline
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As you can probably surmise from the changes that have been happening on this site throughout 2010, The Digital FAQ is in a transition on the way we present information and the type of information being presented. The video, photo, print design and web-related services we provide are also being altered and improved upon to meet the needs of digital media clients in 2010, while also working to keep pricing well below that of our competitors.

Our most recent terms of service for website work was written in 2007 and updated in 2008, but it was created for clients that had us create their site, host it, and maintain it on an ongoing basis. Starting this year, we've had a lot of clients who insist on self-hosted sites -- and that's fine -- but a new ToS has to be created for this type of work. Yes, we could copy a generic template, but it still would not be adequate based on what I've seen so far. So we're in the process of creating a new custom ToS for this new breed of client. And it won't be finished until December. In the interim, clients were told that anything not specifically permitted via email should automatically be assumed as disallowed, and that a formal ToS would be provided around the end of the year. (That anything not specifically stated as permitted is disallowed should generally be how any business assumes non-"work-for-hire" is created anyhow! Contracts are there to alter the status quo -- i.e., change the non-permissible to permissible, as well as changing the usually-permissible to non-permissible -- as well as serve as reminder or clarification of the status quo. ToS is a common form of contract.)

In this temporary vacuum, a client has suggest we sign his contract. This is unusual, and unfortunately something we simply cannot do. Rather than simply send a response to the client in an email, I've decided to redact identifiable information (i.e. CLIENT COMPANY, LLC and THE WEB DESIGNER) and use it for educational purposes. I know this is a topic where a lot of creative freelancers struggle, be it for web design/development, print work, photography or even writing.

Hopefully the client won't get offended, but at the same time I know this new business owner is learning, too! So this is written purely from an educational stance, for the client's benefit, as well as for the benefit of anybody else researching this topic on Google.

This is a good example of the kind of contract a freelancer should never sign under any circumstances. It looks more like a work-for-hire type of contract, where you'll end up relinquishing all rights to your work. The only time you should sign a work-for-hire contract is when you're being put on full-time payroll with benefits, preferably on a long-term contract with limited separation options (or with separation options that also include the return of some/all rights to the work created). Freelancers are not work-for-hire employees. I refuse to sign WFH contracts anymore, unless I retain all rights for work produced for at least the previous 90 days. As the content author/creator, I also refuse to sign anything that disallows backup copies and/or portfolio use of my work (an assumed right, but one that should still be reiterated formally in contract or ToS).

The below contract also requests that I turn over rights that I do not have -- i.e., releasing the code rights that I have licensed from other developers.

Below are some excerpts from this contract, followed by smaller quotes with comments underneath...

Quote:
TARGET: Is for THE WEB DESIGNER to create custom designed WordPress themes/sites for CLIENT COMPANY LLC, to use at its discretion.
This is the kind of phrase that takes away all freelancer rights, and gives the client the right to do anything they want -- including mass producing and reselling your photo, article, etc. This type of verbiage is only acceptable if you have been paid handsomely for your work, and should generally still be a more complex contract that include residual payments. Most freelance work is done on the basis of licensing the creative for limited use by the client -- i.e., the contract reflects the use requested by the client at the time of its creation. If a client wants unlimited licensing, then the freelancer price would be renumerated for said project.

Quote:
- Complete site within 7 days/168 hours from the Agreement Date.
Quote:
- If the theme/site is not completed by the 7th day of the Agreement there will be a $10 fee per day paid to CLIENT COMPANY.
I'm generally against any sort of timeframe being built into a contract, especially when it involves highly technical work -- i.e. web design, web development, complex photo editing, video editing, etc. There are too many uncontrollable secondary variables at play, be it the utility companies (electricity), telecomm/cableco (ISP), web hosting (HSP), or even the localized hardware and software itself. And that's nothing to say of health of the individual freelancers doing the work, family emergencies, etc. At best, time windows are set for mutual dissolution of a project, such as 30 or 90 days. It should also be specified whether these are calendar days or five-day "work" days (Mon-Fri). Unless the project is tiny (by the definition of the freelancer and NOT of the client), then 7 days is entirely unreasonable -- it's barely enough time to do anything.

There's also something to be said of the freelancer mindset. If we wanted to be pushed in this manner, we'd still be at our 9-5 M-F weekday jobs, where a boss/manager of some kind is harassing us on a daily basis. Freelancers chose this working lifestyle because we're given more freedom to select what we want to do, and set our own schedule of when we want to do it. For example, I like to start my days well before sunrise, and by lunchtime my working day is over. I can spend the afternoon with family, running errands, relaxing, etc -- assuming I've not intentionally doubled up on workloads.

As an individual non-employee, freelancers maintain their own schedules, as opposed to an employee that is always "on-call" while in the office, at the whim of his/her employer. If a freelancer has other projects pending, a client may find his work put into a queue for some length of time. Good freelancers are honest about their queues -- although some clients get unreasonably pissy when informed that they must wait a week or two.

(For the freelancers reading this: We tend to drop most clients who get bent out of shape over waiting a few days or weeks for their work to be completed. Refunds are also at our discretion, be it in part or in whole, based on the labor and time spent, as well as accounting for other work that may have been turned away in that time. About once a year, we will inevitably end up doing work for a narcissist that needs an attitude adjustment. Beware of those kinds of clients!)

Quote:
- Ensure the newly designed theme/site is formatted properly in all browsers.
From a web design stances, this is entirely unattainable and impossible. There are too many browsers, each with too many versions -- and many of them fail to conform to proper web specs. In 2010, sites should work in:
  • Internet Explorer 7
  • Internet Explorer 8
  • Internet Explorer 9 beta (errors possible in betas)
  • Firefox 3.5
  • Firefox 4
  • Chrome (note: AJAX errors common)
  • Safari 4
  • Safari 5
  • Sites may also work in browsers built on similar rendering engines, such as K-Meleon, Avant and Flock.
  • IE6 Note: Internet Explorer 6 is a dead browser that even Microsoft will no longer support. MS considers it a security risk to run IE6. Major company like Google and Yahoo no longer support IE6. All IE6 users should upgrade. Web designers should not feel obliged to support a 10-year-old web browser unless paid extensively for all the custom coding required, and assuming the designer wish to take on such a project.

Note that not all features may work in all browsers -- this is often a defect of that specific browser and its rendering engine (or implementation thereof), rather than a failing of the website developer, designer or programmer.

Quote:
- Upload and format all videos created for the designated theme/site.
- Upload and format any specified sidebar widgets including Opt-In codes.
- Test theme/site to ensure everything is working properly.
The upload and testing of any site depends heavily on the accessibility of the hosting. For example, if The Digital FAQ is hosting the client, we'll have zero issues getting the site online, as we maintain our own servers with proper access, setup, languages, databases and various compiles/tweaking. If the client is using his/her own host, then we'll generally be agreeable to upload and testing within a certain amount of time after completion of the project (i.e., 15-30 days after work is completed).

The reference to "format" really falls within the specs of the original project. All formatting -- i.e. encoding of videos, customization/writing of PHP code, etc -- must fall within the original agreement (and in terms that were apparent to the developer, not the client who may have used generic and misleading descriptions). Such things would never be written into a ToS or contract, but rather found in the work order and project description. We discuss sites via email, on the phone, or in person -- and then often email an invoice that also serves as the work order. (A minimum of 50% non-refundable deposit is required to initiate the project, and payment serves as acknowledgement of the ToS when available.) Anything that falls outside the work order will be an extra charge at an hourly rate, with 100% of the estimate immediately due before continuation and implementation.

Quote:
INVESTMENT: The investment to begin theme/site construction is 50% of the total agreement price up front. Then the other 50% once the agreement has been fulfilled.
This is standard practice. I've actually seen services/freelancers that require 75-100% pre-payment for work. Our rates are graduated, and often depend on the size of the client (corporate/government purchase orders, etc). The full formula is still being developed. This client only knows the payment schedule for the sized jobs performed to date.

Quote:
If CLIENT COMPANY requires THE WEB DESIGNER to create MySQL databases in order to upload the theme to the site CLIENT COMPANY will be required to pay an additional $50, which can be added into the total Agreement price.
Much of this falls under the area of information not stipulated is assumed to not be performed. The creation of MySQL generally comes as part of the pricing of certain types of sites, while assuming it conforms to our accessibility specs. If we can easily access the control panels for your server (non-modified cPanel hosting or Plesk hosting, or a Plesk or cPanel cloud host), with database transfer available via SQLyog Enterprise Manager, then it's included in the project. If not, then the client is responsible for his/her own MySQL creation and restoration for install.

Yes, this means I'm turning away potentially "free money" ($50) for each install of MySQL. But our mission is not profit motivated, only service motivated. Good services, good information, good prices.

Quote:
- All emails must be thoroughly read and all questions answered to ensure a smooth process.
This is more of an etiquette issue, and not something I'd put into ToS or contractual communication.

Quote:
- All revisions will be communicated via email and can be in bullet point format.
- A maximum of 2 revisions will be permitted. Any additional revisions will cost an additional $25 per revision to the total Agreement price.
- Should any revisions communicated via email be overlooked they will coincide with the permitted 2 revisions. They will not count as additional revisions.
- Revisions will require the word “Revision” and the number of the revision in the subject along with the site name. I.E. Revision 1 – CLIENT COMPANY
Anything not found within the original work order is considered beyond the scope of the project, and could incur additional fees. It should also be noted that the freelancer has the discretion and right to opt out of added work, as he/she is in no way obligated to the client, not being an employee of the client.

Most approval must happen at the midway point of the project, upon which the remaining 50% of funds (as a % example) are due. However, the project must still conform to the original project specs, and revisions may be subject to increased costs with 100% of estimate due immediately. If the change is minor, and near-zero time is required, we'll often just login and make the change at no added charge. (We're reasonable people, after all!)

Again, this is all pretty standard policy and pricing within the web development community.

The Digital FAQ offers hourly management rates, either in individuals or in discounted expiring monthly blocks, to eligible clients. This can be used towards maintenance and minor revisions.

Quote:
- Confirmation of Agreement will be determined when THE WEB DESIGNER responds to CLIENT COMPANY via email stating, “I agree to the terms and conditions.”
Payment serves as confirmation for our ToS before work even begins. (Or at least, it will, once finalized.)

Quote:
- CLIENT COMPANY owns rights to theme/site design.
This goes back to something mentioned earlier. Such a statement cannot and should not be signed by any freelancer. Beyond the reasons already mentioned, there is also a legal issue -- licensed code. No sane web developer is going to reinvent the wheel every time a new site is required. Many of us rely on code libraries. Older designers like myself have custom code going all the back to the 1990s, and I would never give away my rights to my library code, as that would gut my library. Other times, developers/designers license frameworks, such as StudioPress, and heavily customized on top of that code. (The shoddy hacks out there license whole themes and simply reuse as-is, which accounts for the many crappy sites online that all look alike!) We are under license from those coders, using an expensive developer license, and cannot sign into any contract that releases full coding rights. They own much of CSS code, and we own the rest of the CSS. The client only owns the images and text content -- assuming those were also not licensed from a photographer or stock catalog.

The client is licensed to use the site for the domain it was intended for (or future renamed version of the single business/domain), and not "full" rights. The designer retains all ownership over the design.

Of course, even if the designer/developer does sign such an agreement, not fully understanding his rights and consequences, a court can still overturn the contract. I'm reminded of the Superman case with the Siegal and Shuster estates.

Quote:
- No outbound links are permitted on theme/site without CLIENT COMPANY’s approval.
All sites created by The Digital FAQ must contain linked text (of our choosing, i.e. "Site Designed by The Digital FAQ" or "WordPress Theme by The Digital FAQ") that references the designer/creator of the site. A branding-free option may be available for an added fee. The branding-free feature needs to be discussed at the start of a project, and be included in the original project work order. NOTE: If we do not wish to be associated with your business, however, we may grant (or even specifically disallow) our name being placed into the footer. Other times, for certain projects, we may allow non-linked text (i.e. "Site Designed by The Digital FAQ" with no linked URL) at our discretion, as happened with this particular client for one site.

Again, this is pretty standard practice in the web development community.

(Note that "free" themes that claim to have this right do not. WordPress footer.php falls within the EULA of WordPress and not the free theme. However, ToS with a paid designer differs with the EULA of a theme.)

So what's a good Web Designer / Client service agreement or ToS?

Here are some examples of agreements that I quickly found from Google searching. Note that I don't necessarily agree with anything/everything there, but it's good added information for your perusal. Several of those ToS appear to be from the same template, and include some of the same pros and cons on ToS quality.There's also some good general tips here:
As you can see, these documents are tedious and long, hence our own issues in creating a new ToS quickly.

Come to think of it ... this page may actually now serve as our temporary ToS for the next 30-60 days, while we work to complete final ToS documentation. While it's definitely incomplete, it does give more insight into what a client can expect in terms of rights over the work.

The only time I'll sign a client's contract is if it's an NDA (non-disclosure agreement) with an organization or corporation that I feel has a valid reason. For example, banks or security firms where we've done intranet development, or even large publishers or studios where I've ghost-written articles or ghost-encoded videos. The well-paying project had an obvious and normal desire to keep things hidden.

Hope this helps! Thanks.

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Last edited by kpmedia; 11-16-2010 at 04:55 AM.
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07-24-2013, 10:01 AM
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Designers -- amateurs, mostly -- are still trying this in 2013.

You don't need to sign an NDA-like documents with your customer. Why? Well, this prevents you from leaving feedback, or reporting them for fraud, abuse, etc. A customer should be signing your documents anyway! This is very, very backwards.

Since part of this has to do with hosting -- make sure you get a good host.


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