Introduction

While art school did not teach me a lot about running a business, the one thing I heard over and over again was “don’t do work unless you have a contract”. A contract is basically a written agreement that both you and the client sign, that outlines the scope of work and any terms and conditions related to the work. Having a contract in place for any work you do is essential, everyone will tell you that. But what I found lacking when putting together my first contract was an explanation for why I needed certain sections and maybe not others. As always, this isn’t legal advice, but I would like to go into a few key sections that you need to have as part of your contracts. A contract is not in place for the benefit of the client, it’s for the benefit of you - to protect your work, your revenue, and your time.

My contract

I used a contract that I found on the internet and made adjustments to for the better part of 3.5 years. At the time that I’m writing this section, I am only now working with a lawyer to get a proper service agreement drafted as I prepare to incorporate my business. I have never had a client sue me or threaten legal action, and I think that is mostly to do with the fact that I trust my clients, I work mostly with people who come from referrals, and generally put all potential work through a vibe check (again, not legal advice). I’m going to go through each of the sections in my ‘Terms and Conditions’ section of the contract I used, and explain why each of these is important.  

Structure

My contract is structure in a way that I have 5 main sections:

• Project Brief
• Payment
• Terms and Conditions
• Deliverables
• Schedule

Each of these sections aims to outline in very clear terms what the project includes, how I will be compensated for it, and when we are going to do the work. I’m going to go through terms and conditions in full, but let’s break down each of the elements.

Project Brief: This is a plain-language overview of what the project is, what it aims to do, and how we will approach it. Typically, I write this as part of the proposal and then just copy it here when it’s approved.

Payment: This section outlines how much I will be compensated for the project, and how I will collect payment. I have a whole chapter on Money coming up next, but the overview here is that I break the total project cost into 3 payments - a 50% deposit to book the time on my schedule, a 25% progress payment when the beta site is delivered, and a 25% final payment when the site launches. I am currently changing the wording on this section to state that the final 25% is due when the work is completed, not at launch, because I’ve found myself in a few situations where the work is complete, but I end up waiting weeks or months to receive the final payment because the client delays it on their end. I would go with whatever you are comfortable with.

Terms and Conditions: I’ll go into each of the terms I include shortly, but the overview here is that I want to outline how we are going to work together, what is expected on either side, and how the work can be used in the future.

Deliverables: Similar to the project brief, this is usually something I create when I am putting together a proposal. I list out each of the main parts of the project and what I will deliver to the client in each of them. I try to be as specific as possible here like listing out the number of pages included and how many rounds of revisions we will do at each stage.

Schedule: While a schedule is something that will often change through the project, I like to include a draft schedule in our contract so that both parties are clear when the work will start and when we can expect it to launch. I purposely label this as a draft and include a disclaimer that the “Dates are approximate, and may be adjusted based on Client feedback.” because there are so many factors that can set a project off of its original timeline. During a project I always keep my client regularly updated where we are in terms of progress.

Explaining my terms

Review: The Client is responsible for proof reading and approving all materials as requested.

• I make it clear in our agreement that they are responsible for approving materials, and that I will request when it is necessary to do so. This term is important because I want to cover myself in a situation where the client says ‘I didn’t approve of that’ and I can point to the instance where they did approve it, and back it up in our contract that they hold responsibility.

Portfolio: The Designer may use materials completed in this scope of work in promotional material across their website and social media with appropriate credit to any collaborators.

• Sharing work is essential to getting new work - we covered that in the last chapter. But, I need to make sure I have the client’s permission to do so. I include this term in the contract to make it clear that by engaging in a project with me, that I have the right to share the work on my social media and website. I also make it clear that I will credit other collaborators or creatives involved in the project. While this clause is there so that I can share the work freely, I typically also always ask the client before I share something as a courtesy. I never want someone to feel caught off guard if I share our work, but technically I could anyways.

Cancellation: If at any time a project is canceled due to circumstances beyond the control of The Designer, the Client will be invoiced for work completed to date. The 50% project deposit is non-refundable.

• This term is here to protect myself from the client cancelling the project at the last minute, and requesting a full refund. I collect a 50% deposit to book the time for the project, and will not issue a refund on that amount under most circumstances. I’ll talk about this a bit more in the next chapter.

Confidentiality: During the course of this Agreement, it may be necessary for the Client to share proprietary information, including trade secrets, industry knowledge, and other confidential information, with the Designer in order for the Designer to complete the Website in its final form. The Designer will not share any of this proprietary information at any time, even after the Agreement is fulfilled. The Designer also will not use any of this proprietary information for her personal benefit at any time, even after the Agreement is fulfilled.

• I want to assure my client that I’m not going to share their trade secrets, now or in the future. This term spells that out clearly.

Ownership Rights: The Client continues to own any and all proprietary information it shares with the Designer during the term of this Agreement for the purposes of the Project. The Designer has no rights to this proprietary information and may not use it except to complete the Project. Upon completion of the Agreement, the Client will own the final website design.

While the Designer will customize the Client’s Website to the Client’s specifications, the Client recognizes that websites generally have a common structure and basis. Designer continues to own any and all template designs it may have created prior to this Agreement. Designer will further own any template designs it may create as a result of this Agreement.

• This section clearly spells out who owns what as part of the project. The client owns all of their proprietary information, and I own all of mine. I also clearly spell out that the client owns the website. Some other creative professions like photography and illustration operate differently from this, with the creator maintaining their ownership rights and licensing the work to the client, but I don’t operate like this. I don’t want to own my client’s website.

Disclaimer of Warranties: The Designer shall create a Website for the Client’s purposes and to the Client’s specifications. The Designer does not represent or warrant that said website will create any additional profits, sales, exposure, brand recognition, or the like. The Designer has no responsibility to the Client if the website does not lead to the Client’s desired result(s).

• This term is here to state that while I will design a custom website, I am not promising that it will create any desired return for the client whether that is profit, sales, etc. Because the end result of the project could be influenced by so many things other than my best professional recommendations, for example the client’s personal taste and preferences, I don’t want to be held responsible if it doesn’t give them their desired result. I go into every project wanting to do my best possible work, but the site is ultimately the client’s responsibility. I don’t do e-commerce websites, which is where this could get a bit more messy, and as always would recommend talking to a lawyer if you think you need more protection for higher-risk work.

Legal and Binding Agreement: This Agreement is legal and binding between the Parties as stated above. This Agreement may be entered into and is legal in Canada in the Province of Alberta. The Parties each represent that they have the authority to enter into this Agreement.Modifications of the terms of this contract must be written and authorized by both parties.

• This term states that the contract is a legal agreement in my province, and that any modifications to the contract must be agreed by both myself and the client.

Associated Costs: Other costs are associated with this project that are separate from the fee noted above. These may include web hosting, web maintenance, domain hosting, stock photography, and additional apps. Webflow hosting is approximately $276/year.

• This term further clarifies what is a part of the project cost and what is not. I also list the precise deliverables in our contract, but there are some items that are outside of that so I list them here. Things like stock assets and web hosting are the responsibility of the client, and I don’t want to put myself in a position where the client says ‘I thought that was included’ when it’s not.

Limitation of Liability: Any liability arising from this contract shall be limited to the fees noted above.

• This is probably the most important term in the whole contract. If I’m going to be sued, I don’t want to be sued for more than the client paid me for the work - that would be silly. If there is any liability (or something which the client feels I should be responsible for) with the project, it will be limited to the amount the client paid for the project. This term protects me from being sued for $100,000 for a $10,000 project.

Other terms to consider

What I’ve explained here is very closely tied to my personal experience, and I know that how I operate might not be exactly how you operate. There are a few other terms I see others talking about that you might consider for yourself, and completely different ways of working that you may need to look into.

Holding Fee: I know some freelancers and agencies that have a holding fee in their terms. The purpose of this term is to set an expectation that if the client holds the project on their end for more than a week, they will be charged a fee associated with the delay. Our time is valuable and when a client delays the work, it may cause conflict with other projects you have booked for the future. I’ve found myself in this situation many times, as I typically book work 2-3 months in advance. If the project I’m working on is delayed by a month, it’s going to overlap with other work and cause stress from being overbooked. I’m actively considering adding this to my contract.

Recurring work (retainer or subscription): If you are active online in the design community at all, you will probably have heard of the latest craze in agency structures - subscription-style design services. This is basically a retainer, or an agreement that during a set amount of time (typically a month) the client will pay you a set fee in order for you to do ongoing work. I don’t love retainers in general, but I especially don’t love them in the first year of freelancing because you should be increasing your rate with every project you do. If you fill up your entire schedule with retainers at a set amount, there is no room to grow your income unless you take on more work, or raise your rates. Taking on more work will eventually lead to overbooking, or having to hire subcontractors. Raising your rate can work, but unless you want to be having this conversation every couple of months, I would try to avoid it. This is a super personal choice, I find that I don’t like retainers both for the money aspect, but also the fact that I love turnover in work, and working on new things every 2-3 months is ideal for me. It’s definitely not a bad model, it’s just not for me. You might decide that you want to try it out, and I would encourage you to figure out what works best for you.

Client Contracts

On occasion, I have had a client push me to sign a contract that they provide. After all, a contract is in place to protect the party that authors it. I found this happened with startups operating in new markets, who wanted extra protection for their intellectual property, and for large companies that have the resources to cover every inch of possible liabilities. If a client wants you to sign a contract that they provide, read through it thoroughly. If you don’t understand it, find a lawyer of your own. This is not something that you want to skip over, as you may miss important terms that conflict with your service structure or values. I once had a client send me a contract that had a term stating I could not do work for any other company in their industry for five years after the completion of our work. They were a startup in the medical space. I am absolutely not going to sign a contract that would prohibit me from doing other work for medical startups. I pushed back on the term, and they removed it. Another client’s contract required me to have $1M in liability insurance. At the time I had none, and quickly found an insurance provider. But I still didn’t want $1M coverage, so I pushed back with the client and they changed it to $500K. Always always always read your contracts. You could be in a very bad situation if the client ever chooses to act on something you didn’t comply with, and that would be a huge challenge for your business.

Conclusion

Again, I would always recommend that you get in touch with a lawyer, particularly if you offer unique services or deal with sensitive information like payment processing. You can contact a law firm that specializes in commercial law, or you may even find a marketplace service where you can access law services online. That’s the route that I decided to take with a company called GoodLawyer that is local to me in Alberta, but operate across Canada. You can submit a request for a quote online, the platform will match you with a lawyer, and you can engage in their services online for a fixed fee. I’ve heard of other similar services in other places, and would recommend that you find something that operates in your state or country.

Contracts are so important. You should never feel weird or awkward about pushing for what you want in a contract - it’s the only thing that’s going to protect you if things go south.