Thursday, October 29, 2009

7 Items Every Contract Should Have

I’m not a lawyer and I don’t play one on TV. But over the course of the years at Firstborn I’ve had experience working on many client agreements with the help of our attorneys. What follows is a distillation of some of the items we always look for and while this is based on our work as a digital agency, most of these issues can apply to any company selling creative services.

As a rule, there are 2 types of contracts that we work with. A master services agreement (MSA) is what we usually sign when we’re an agency of record for a client or will be doing ongoing work with a particular company. We then sign off on individual statements of work (SOW’s) for each specific assignment that comes up and the terms of each SOW are governed by the MSA. For work that’s on a project by project basis, the terms and SOW are combined into one proposal document.

Scope of work
The SOW contains a detailed and unambiguous description of what it is we’re delivering to our client. The format may vary and could include a content outline, set of wireframes, creative brief, illustrations or a combination of the above. This is the road map that will guide our work and provide the reference point for both parties should any items fall outside of the initial scope. In some instances, defining the scope of work is part the assignment and in those cases, we charge a fee for an initial discovery phase, out of which a detailed scope, cost and timeline document is delivered.

Limit of Liability
We ask that there be a cap to the amount we’re liable for, usually the amount that we’re paid for the project. Having an open ended liability puts us at great risk, especially a relatively small company such as ours that can be put out of business by frivolous lawsuits.

Indemnification, Representations & Warranties
As a creative agency, Firstborn warrants that our work will be original. However, we need to be very specific about what exactly we’re liable for. In many cases we may be using materials ideas or product claims that are supplied to us by our clients and so we make sure there isn’t a broad representation that would include those materials we’re not responsible for.

Payment terms/schedule
The payment terms and schedule are clearly laid out in all our agreements. It’s Firstborn’s policy to receive 50% to start work and the rest paid out during various milestones in the production timeline.

Ownership
Since what we create for our clients is a work for hire, our clients own all the deliverables. We do, however, retain ownership of our source code, the reason being that we have a right to the methods and knowledge that we use in the production of work for all our other clients.

Termination
If the contract is cancelled for a reason other than our negligence or misconduct, it’s only fair that we be given reasonable notice so that we can re-assign the team that was allocated to the project.

Credits
The ability to showcase our work is very valuable to us and so we ask that we be able to publicize our participation in the project subject to, of course, our clients’ permissions.

Friday, October 16, 2009

Goodbye Captain


I was saddened to read about the death of Lou Albano recently. Lou was most famous for his appearances in a Cyndi Lauper music video but made his living in the world of professional wrestling. Back in the '70's pro wrestling wasn't the huge juggernaut of the current WWE but was still very much a fringe entertainment. It was even hard to find on television back then since the "sport' was often relegated to UHF channels that were hard to tune into as opposed to the regular over-the-air stations that had the monopoly of programming before the age of cable. As my friend Roger said to me recently, before the WWE, wrestlers weren't all the steroid-built hulks of today but in large part were just a bunch of fat guys from New Jersey. Enter Lou Albano. Like Freddie Blassie and The Grand Wizard of Wrestling Lou's role was a manager of various villain wrestlers such as Ivan Koloff, the Valiant Brothers and the Wild Samoans. Lou's modus operandi was being totally off the wall during matches and interviews. I think what appealed to us about wrestling when we were kids - and of course we knew it was fake - was the sheer wackiness of it all and it was kind of cool to follow something that was out of the mainstream. Being a manager of a bunch of "bad guys" is not a role to aspire to, but the self proclaimed Captain sure made me laugh a lot.