How a good contract saves nerves and a coin
Contracts, reports, acts - who wants to be engaged in this dullness when it comes to life and creative ideas? Especially if the customer indulgently claps the creative contractor on the shoulder: âCome on, why are there any contracts. My word is law! âIt remains only to happily agree and get to work.
At the dawn of our agency, we didnât seek to formalize relations with our dear clients. The standard contract fit on two typewritten sheets. He contained a minimum of information: the subject of the contract, the timing, price. If there are few customers, and all of them are old acquaintances, then to a certain extent you can rely on their integrity. But when the client base is actively growing, problems multiply: they delay payments, do not fulfill obligations, abuse the contractorâs loyalty. Faced with them in full, we gathered, thought, and made a new model contract.
They took as a basis the document of Lebedev Studio, freely available on the net at the first request in Google. This is a worthy model, gained through years of practice. Of course, it is not perfect: a lot of things in it seem superfluous, there is a cruel bias towards the studio. As someone described it in two phrases âHello! First you give us a bag of money and we draw a bit. Then you give us another bag of money, and we, so be it, give you what we have painted! â. In some places it is.
But, examining it in collaboration with our legal service, we took the best from it and supplemented it with our own "gains". Each section of the contract is filled with meaning.
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It is known that learned people in any dispute first agree on an unambiguous understanding of the terms. If we do the same with a partner, then perhaps we will avoid disputes altogether: in order to avoid a double interpretation of professional terms, it is very important to decipher them in the contract itself. This is a common legal practice. Definitions of words can be taken from any sources, for example, from Wikipedia or dictionaries, as long as they truly reflect the essence of the work being done.
Discrepancies in the definition of such a common notion as âdesign conceptâ are fraught with time losses and reworkings. This was in our practice: the client understood as a design concept already working in the browser, layered in HTML, where you can click on the links. The representative of the customer referred to the experience of working with another studio, which showed an imposing layout, and demanded the same from us.
After a diplomatic but persistent clarification of the "concepts", a separate addendum to the contract was signed. In particular, it clarified that the âdesign concept of the siteâ is presented in the form of a non-interactive graphic file.
The most substantive part of the contract, describing the essence of cooperation: what the contractor undertakes to do and in what time frame. If desired, you can break the work into stages and each negotiated separately. Today the form of a framework agreement is popular, which is used in long-term cooperation or in the case of a complex project with a lot of work. Then it is more convenient to sign one general contract, and to document the parameters of specific works in the form of annexes to it. So the coordination of documents will take less time.
In the case of a framework agreement, the item âSubject and Termsâ states: âThe Contractor undertakes to provide advertising services, develop creative concepts, design advertising and printing materials. The detailing of services is carried out in the Annexes to this Agreement, which are an integral part of this Agreement. â
After successful completion of one or two projects, the client expresses the desire to work with us constantly. But it takes about a week of pure time each time to negotiate a contract with the clientâs legal service. To avoid delays, we offer the client, and sometimes he to us, to conclude a framework agreement. The advantage of such a contract is precisely in the rapid coordination of details with a large number of different works. The disadvantage is that if you need to make changes to the main contract, you will have to go through all the reconciliation procedures again.
Here are the obligations and rights of the client and the agency relative to each other. The executor is obliged to perform the work efficiently and on time, and the customer is to timely receive the result and pay for it. In addition, the customer must provide all source materials in a timely manner, and the contractor must disclose information on the progress of work and provide the client with access to the result. Everything is standard and similar to the sample rules enshrined in the Civil Code of the Russian Federation, except for one important point - the âresponsible personâ. Here is the name of the person who will be responsible for the project by the customer. The goal is simple: to limit intervention in the work process of third parties. Of course, no one bothers the customer every day to convene the entire board of directors for a four-hour meeting on your project, but you have every right to decide all the issues that arise with only one person who has all the powers in accordance with the specified item. This insures against the activity of a dozen managers who âwere also instructed to conduct this project.â
It also happens like this: a project was started by one manager, and the other one continues - for objective reasons, for example, the first one left. What to do in such cases? It's simple: to issue this fact an additional agreement to the contract.
Once our client ignored this clause of the contract and at each meeting brought new people who expressed their opinion on the project. We did not indicate to the client the contract, leaving it as the last argument, but just gently said something like the following: âIf you think that the opinions of all these people are very important for the project, let's bring them up to date and start work from the beginning. In the meantime, their intervention only slows down the work, which creates inconvenience for both us and for you. â The client agreed with our position.
A very important point in which the price of work is fixed, if necessary, with a breakdown into stages, as well as the order of payment: how and in what time the result is paid. Previously, we followed the â100% or 50% prepaymentâ scheme. Now we break the work into clear stages, each with full prepayment. This is a very convenient scheme: it allows you to more flexibly reserve the time of studio workers and virtually eliminates the inhibition of work due to customers. The agency receives an advance payment for the stage and fully fulfills it, and if the customer is not ready to proceed to the next step, then he does not pay for it, and we switch to other works for the time being.
In general, for example when creating an advertising campaign, the steps are as follows:
The most important point for which, in fact, such a long contract is needed. Here the allegations and alterations are specified in detail. In particular, the deadline for the approval of the results of work or subtotals is determined. We quote this clause in full: âUpon completion of the work, the Contractor sends the work result to the Customer, and within three working days from the moment of receipt, the Customer undertakes to accept the work (by signing the Work Acceptance Act) or send the Contractor a reasoned written refusal to accept on the need to refine the layouts. A motivated refusal must contain a list of inconsistencies of the work performed to the Brief (Appendix to this Agreement) or the terms of this Agreement or Appendices. â
Please note that when accepting work, a separate document must be signed - an acceptance certificate or a reasoned refusal signed by the customer. If one or the second document is missing, the work is deemed accepted, and then the agency gets the opportunity to file a lawsuit in court if the customer does not pay the due part of the payment. Only one subtlety remains: it is necessary to fix the fact of sending the finished product to the client.
"Basic" method: transfer the work in person, with a courier or manager, and upon delivery, require a signature stating that documents or files have been received. Although this method does not guarantee protection against any problems: the files could not be written to disk or the wrong sketches were sent to the customer.
The best way: to send work by e-mail or by courier, just in case duplicate by regular mail, "paper", on the same day. The first is easy and fast, and the second will help if you need to prove the fact of sending and delivering the item.
Of course, fixing literally every âsneezeâ is a dreary exercise, but in the event of unpleasant situations, it avoids painful conflicts.
They heard from colleagues a wild story. After long delays in payments, the client suddenly began to assert that there were no files on the disk, there is nothing to pay for. Since the project was not finished yet, but the second stage was going on, the agency returned part of the prepayment and ended all relations with the customer.
This section, in particular, regulates the actions of the contractor in case the customer delays the provision of source materials. In response, the contractor may increase the time for performing the work, change the terms of payment, terminate the contract, or resort to other specified measures of influence on the disorderly client. Of course, all the agreements reached should be formalized as an additional agreement to the agreement and signed by both parties.
The section also describes the mutual responsibility of the parties in case of infringement of the copyrights of third parties. However, we will talk about intellectual property in more detail below.
In general, the section corresponds to the general provisions of civil law, so we will not dwell on it in detail.
The contract is valid until the parties fulfill their obligations to the end or will not be terminated by their initiative. This is accepted by default. But it is important to clarify that the clause on the preservation of commercial secrets under the project is valid indefinitely â even after the termination of the entire contract. This refers to provisions relating to intellectual property and materials exchanged between the parties.
The following provision stands apart in this section: if the contract is suddenly terminated at the initiative of the customer or as a result of his failure to fulfill his duties, then the prepayment is not returned to him in order to compensate for losses incurred by the agency.
The last point may seem controversial, especially from the point of view of the customer: since it was decided to curtail the work before the appearance of the final product, there is nothing to pay for. Studios, on the contrary, want to receive payment for unfinished work as for full.
The truth, as usual, somewhere in the middle. The scheme will be fair, in which each stage is divided into working days, and prepayment is refunded for those days that remained until the deadline at the time of termination of the contract. Yes, the studio in this case is experiencing some inconvenience. But according to the law, only the actual expenses incurred should be paid, and not the fact of the teamâs working time reservation. This is what Article 717 of the Civil Code of the Russian Federation says: the contract may provide, in addition to paying for the cost of the work itself, the costs of purchased, but not used materials, for model services and third-party contractors.
Work on creating advertising was divided into three stages:
1. concept development (10 working days),
2. final visualization of the chosen concept (15 working days). It was meant to shoot with the selection of models, with the rental of objects and premises, retouching of the captured frames and layout layout,
3. Adaptation of the layout for different formats and sizes of modules. According to the contract, the client paid each stage with a prepayment of 100%.
The client decided to roll up the work immediately after the shooting, on the fifth day of work on the second stage. We have not yet started retouching and layout, and the client had to return the prepayment for the remaining ten days. But we have already incurred the costs of paying for the work of models, renting a studio and items in the frame. The customer was refunded an advance payment minus the cost of five days of work and the indicated additional expenses.
Some of our colleagues stipulate in their contracts that 70% of the prepayment does not return to the client in any case, even if he refused to work on the project the next day after payment. This kind of compensation for the reservation team for a certain period. The logic, of course, is in it. But such a condition is justified if the agencyâs work schedule is very tight, and any discrepancies with one client may affect others. This is not just a requirement of "supreme justice." In the event of a trial, you will have to convincingly substantiate the âirretrievableâ amount - what expenses, losses, or loss of profits the studio has incurred.
You can also note the point about the place of the trial in case of the most unpleasant end of cooperation. We recommend that you specify the place of consideration of the case nearest to you arbitration court. This will change the general rules of jurisdiction, enshrined in the Arbitration Procedure Code, and will save on travel to a foreign city.
For some time, our standard contract did not regulate copyright issues, but little by little, point by point, we began to include the relevant provisions in it. By and large there are two of them: one concerns the duties of the customer, the other - the performer.
The customer is obliged to provide the source materials, completely free from claims of third parties. And if the source is still "unclean", then the responsibility for this is borne by the customer. What kind of materials are transmitted, is recorded in the transfer act. Do not forget that any movement of information in both directions should be reflected in the documents.
The contractor, in turn, guarantees that everything he has done under the project is also not burdened with copyrights. And with responsibility in this sense, it is similar: if the authorship of the final work is in doubt, then the agency bears full responsibility for it.
In addition, the contract determines the scope of rights transferred to the client at the end of the project. Of course, all rights are transferred only when signing the act of acceptance. As a rule, all types of advertising are available to the client: by cable, on the air, publication in print media and on the Internet. The client is prohibited to change the design of the site and decompile the code of the site and any resulting software products.
The contract specifically states that when using any finished work, such as a site, the client is obliged to keep the artistâs signature on it: the logo with a hyperlink on the first page. The agency, in turn, receives the right to use the clientâs name in the portfolio.
Some, usually very large, clients insist on signing a special annex to the contract - ânon-disclosure agreementsâ. It came to us from Western practice, where the NDA (Non-Disclosure Agreement) is called. It states that the studio has no right to publish the result of the work for a period of time or not at all. This is due to the reluctance of the client to share with someone the popularity of their brand and to disclose to competitors information about their contractors. It is true that when the NDA is signed, the cost of the project increases.
In our practice, there have been cases when the client suddenly insisted on removing any press releases about the project without signing any NDA. In one case, it was possible to convince him not to do this: it is impossible to remove materials already placed in the media, and if it does, it can damage the reputation of both the studio and the client. In another case, the client, without agreement with us, took incorrect steps, which, in his opinion, should have resolved the situation. The head of the marketing department went to the news site and left an unpleasant comment under the project material. After this, we did not conduct any negotiations with the client, everything was left as is.
It will be fair to supplement the protection of intellectual property with some nuances of the relationship between the contractor and the customer. For example, do not allow the client to use off-the-shelf materials. For example, pictures drawn for the site can not be used in the company booklet or in advertising.
It happens that a client without the knowledge of the agency changes something arbitrarily in an already accepted job. This can happen because a new project manager has come to the client, who, in his opinion, knows better how to create websites and design. Or the client himself talked to his wife or friends, and it was decided to repaint the logo to the color of the wallpaper in the bedroom. To fight this is almost impossible, alas. Perhaps the only thing that can be done is to ask to remove your signature from work with dignity. This can be specified in the contract as a separate clause.
In our agency this happened several times. In the case of sites, everything was decided in a standard way: we called and asked the client to remove our logo. Sometimes the client wondered why? A delicate explanation of the situation followed: âthe changes you have made by your new contractors, in our opinion, do not correspond to the quality of our work. Our logo can be misleading for visitors and harm our reputation. â In all cases, the client agreed to remove the signature.
Once there was an unauthorized change by the client (state authority) of the logo. The calls yielded nothing (âour boss knows better, this is his son who has drawn the leaves!â), And we removed the work from our portfolio and removed the mentions of it in the network as far as possible.
Of course, not every client is used to the fact that the contractor offers him to use his own, not the most standard and concise form of the contract. Claims to the document often arise: customers are surprised at the meticulousness of the contractor and express dissatisfaction with specific clauses of the contract.
The clause that the customer is obliged within three working days to either accept the work or to provide a reasoned refusal, otherwise the work will automatically be considered accepted. Customers do not like that someone decided to limit their time to think. Therefore, they are asked to completely remove this item. As a rule, we do not go for a total exception, but we offer a compromise: increase the period to 5 or even 7 working days.
Often the client does not fit in these terms. Usually we wait patiently. When it takes too long, two weeks or more, to wait for an answer to every change in the layout, we first gently remind him of the dates, then ask for meetings with the management. We explain that overly slow customer response harms our common cause, and we remind you that a customer always has the right to refuse to work with us if something does not suit him.
The clause is that if the customer himself does not comply with the response terms or writes unmotivated refusals, this will deprive him of the right to refer to the court for violation of the deadlines by the studio. Often there is a request to remove this item: the clientâs lawyers are afraid that they are deprived of something.
Responsibility of the client about the copyright to the materials provided to them. Here we honestly explain that even if we remove this clause from the contract, we will not help it with anything: the responsibility for violating the rights of third parties will remain with the material supplier. A clause of the contract is intended to remind the customer once again of caution.
Such a complex contract has the primary purpose not to help in court, but rather to insure additionally against the most unpleasant - the legal dispute. However, between the appearance of disagreements and the court proceedings, there is another stage - the pre-trial (claim) procedure for resolving disputes.
If one of the parties violates the contract, the other should send a written complaint to her address with a request to eliminate the violation: provide the necessary materials, respond to the sent request or pay the due. It usually means that a response to a claim must follow within one calendar month. If during this time the violation has not been eliminated, then you can go to court.
The claim procedure may not be provided by the contract, in this case, the parties meet immediately in court. However, we recommend to include it in the contract - no additional airbag will prevent anyone from doing so.
When one of the clients delayed payment for a month, not answering calls, and finally said: âDo not call me more, when there is money, then I will pay, clear ?!â, we really didnât call him anymore, but sent written claim. The text was like this: âThen the parties entered into such and such an agreement, in which it was fixed that when the contractor finishes the work, the client is obliged to pay for it. The work is completed on such and such date that was recorded by mail, as well as an act of acceptance and transfer of work. According to the contract, the customer was obliged to pay the rest within three working days from the moment of termination of work, but did not do this. We demand to pay the rest of the remuneration to such a date (the monthly period is specified from the day the claim was sent to the client), otherwise we reserve the right to go to court. â
The claim had an effect: in two days money was received in our account.
Everything that the parties agree on prior to the commencement of work or in its process, should be drawn up as annexes to the contract: briefs, technical tasks for the sites, specification of the list of works, change in prices or terms of the project. Annexes to the framework agreements generally should contain the specifics that are not included in the "parent" agreement: subject, term, price and other nuances of the work.
If living models are involved in the project, then a special agreement is signed with them, in which the model consents to the use of its image for commercial purposes. So the Law requires - art. 152.1 of the Civil Code. The model refuses any claims, as well as the right to distribute the material provided to it, for example, if the sources of the photo session are given to her as a bonus. This can be useful so that the pictures made for a large project do not start leaking into various social networks âto avatarsâ.
The agency, in turn, guarantees that the material with the model will not go to other commercial projects. That would be dishonest. Agreements with models are not transferred to the client, but remain with the contractor.
Is it difficult for an agency to adhere to such a complex document? At first, yes. But this is like the organization of a complex, but very powerful system: it is enough to set it up once to make your life easier for a long time. Stock up evidence for the court is not the main goal of all legal rigor in working with the customer. Much more important is the other function of the contract - to discipline, not only the customer, but also himself.
A detailed contract with a clearly defined order of work, as a permanent silent reminder of composure and discipline, teaches both parties to be polite, to appreciate each other's time. But most importantly: it helps to create talented, creative and effective projects that will please both the studio and its happy clients for a long time.
UPD: Actually, our contract is http://cl.ly/5SQL . There is a 50x50 payment.
I remind you that the Lebedev Studio contract template was taken as a basis, and if you want to sort it out in a rather complicated original source, then we welcome you.
At the dawn of our agency, we didnât seek to formalize relations with our dear clients. The standard contract fit on two typewritten sheets. He contained a minimum of information: the subject of the contract, the timing, price. If there are few customers, and all of them are old acquaintances, then to a certain extent you can rely on their integrity. But when the client base is actively growing, problems multiply: they delay payments, do not fulfill obligations, abuse the contractorâs loyalty. Faced with them in full, we gathered, thought, and made a new model contract.
They took as a basis the document of Lebedev Studio, freely available on the net at the first request in Google. This is a worthy model, gained through years of practice. Of course, it is not perfect: a lot of things in it seem superfluous, there is a cruel bias towards the studio. As someone described it in two phrases âHello! First you give us a bag of money and we draw a bit. Then you give us another bag of money, and we, so be it, give you what we have painted! â. In some places it is.
But, examining it in collaboration with our legal service, we took the best from it and supplemented it with our own "gains". Each section of the contract is filled with meaning.
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We play in a scientific way
It is known that learned people in any dispute first agree on an unambiguous understanding of the terms. If we do the same with a partner, then perhaps we will avoid disputes altogether: in order to avoid a double interpretation of professional terms, it is very important to decipher them in the contract itself. This is a common legal practice. Definitions of words can be taken from any sources, for example, from Wikipedia or dictionaries, as long as they truly reflect the essence of the work being done.
Practice:
Discrepancies in the definition of such a common notion as âdesign conceptâ are fraught with time losses and reworkings. This was in our practice: the client understood as a design concept already working in the browser, layered in HTML, where you can click on the links. The representative of the customer referred to the experience of working with another studio, which showed an imposing layout, and demanded the same from us.
After a diplomatic but persistent clarification of the "concepts", a separate addendum to the contract was signed. In particular, it clarified that the âdesign concept of the siteâ is presented in the form of a non-interactive graphic file.
§: Subject and Terms
The most substantive part of the contract, describing the essence of cooperation: what the contractor undertakes to do and in what time frame. If desired, you can break the work into stages and each negotiated separately. Today the form of a framework agreement is popular, which is used in long-term cooperation or in the case of a complex project with a lot of work. Then it is more convenient to sign one general contract, and to document the parameters of specific works in the form of annexes to it. So the coordination of documents will take less time.
In the case of a framework agreement, the item âSubject and Termsâ states: âThe Contractor undertakes to provide advertising services, develop creative concepts, design advertising and printing materials. The detailing of services is carried out in the Annexes to this Agreement, which are an integral part of this Agreement. â
Practice:
After successful completion of one or two projects, the client expresses the desire to work with us constantly. But it takes about a week of pure time each time to negotiate a contract with the clientâs legal service. To avoid delays, we offer the client, and sometimes he to us, to conclude a framework agreement. The advantage of such a contract is precisely in the rapid coordination of details with a large number of different works. The disadvantage is that if you need to make changes to the main contract, you will have to go through all the reconciliation procedures again.
§: Rights and obligations
Here are the obligations and rights of the client and the agency relative to each other. The executor is obliged to perform the work efficiently and on time, and the customer is to timely receive the result and pay for it. In addition, the customer must provide all source materials in a timely manner, and the contractor must disclose information on the progress of work and provide the client with access to the result. Everything is standard and similar to the sample rules enshrined in the Civil Code of the Russian Federation, except for one important point - the âresponsible personâ. Here is the name of the person who will be responsible for the project by the customer. The goal is simple: to limit intervention in the work process of third parties. Of course, no one bothers the customer every day to convene the entire board of directors for a four-hour meeting on your project, but you have every right to decide all the issues that arise with only one person who has all the powers in accordance with the specified item. This insures against the activity of a dozen managers who âwere also instructed to conduct this project.â
It also happens like this: a project was started by one manager, and the other one continues - for objective reasons, for example, the first one left. What to do in such cases? It's simple: to issue this fact an additional agreement to the contract.
Practice:
Once our client ignored this clause of the contract and at each meeting brought new people who expressed their opinion on the project. We did not indicate to the client the contract, leaving it as the last argument, but just gently said something like the following: âIf you think that the opinions of all these people are very important for the project, let's bring them up to date and start work from the beginning. In the meantime, their intervention only slows down the work, which creates inconvenience for both us and for you. â The client agreed with our position.
§: Payment Procedure
A very important point in which the price of work is fixed, if necessary, with a breakdown into stages, as well as the order of payment: how and in what time the result is paid. Previously, we followed the â100% or 50% prepaymentâ scheme. Now we break the work into clear stages, each with full prepayment. This is a very convenient scheme: it allows you to more flexibly reserve the time of studio workers and virtually eliminates the inhibition of work due to customers. The agency receives an advance payment for the stage and fully fulfills it, and if the customer is not ready to proceed to the next step, then he does not pay for it, and we switch to other works for the time being.
In general, for example when creating an advertising campaign, the steps are as follows:
- development of the concept and preparation of its presentation in the form of a text description and sketches,
- final visualization of the approved concept,
- layout of advertising modules for various channels of advertising.
§: Acceptance of works
The most important point for which, in fact, such a long contract is needed. Here the allegations and alterations are specified in detail. In particular, the deadline for the approval of the results of work or subtotals is determined. We quote this clause in full: âUpon completion of the work, the Contractor sends the work result to the Customer, and within three working days from the moment of receipt, the Customer undertakes to accept the work (by signing the Work Acceptance Act) or send the Contractor a reasoned written refusal to accept on the need to refine the layouts. A motivated refusal must contain a list of inconsistencies of the work performed to the Brief (Appendix to this Agreement) or the terms of this Agreement or Appendices. â
Please note that when accepting work, a separate document must be signed - an acceptance certificate or a reasoned refusal signed by the customer. If one or the second document is missing, the work is deemed accepted, and then the agency gets the opportunity to file a lawsuit in court if the customer does not pay the due part of the payment. Only one subtlety remains: it is necessary to fix the fact of sending the finished product to the client.
"Basic" method: transfer the work in person, with a courier or manager, and upon delivery, require a signature stating that documents or files have been received. Although this method does not guarantee protection against any problems: the files could not be written to disk or the wrong sketches were sent to the customer.
The best way: to send work by e-mail or by courier, just in case duplicate by regular mail, "paper", on the same day. The first is easy and fast, and the second will help if you need to prove the fact of sending and delivering the item.
Of course, fixing literally every âsneezeâ is a dreary exercise, but in the event of unpleasant situations, it avoids painful conflicts.
Practice:
They heard from colleagues a wild story. After long delays in payments, the client suddenly began to assert that there were no files on the disk, there is nothing to pay for. Since the project was not finished yet, but the second stage was going on, the agency returned part of the prepayment and ended all relations with the customer.
§: Liability and Warranties
This section, in particular, regulates the actions of the contractor in case the customer delays the provision of source materials. In response, the contractor may increase the time for performing the work, change the terms of payment, terminate the contract, or resort to other specified measures of influence on the disorderly client. Of course, all the agreements reached should be formalized as an additional agreement to the agreement and signed by both parties.
The section also describes the mutual responsibility of the parties in case of infringement of the copyrights of third parties. However, we will talk about intellectual property in more detail below.
§: Force Majeure
In general, the section corresponds to the general provisions of civil law, so we will not dwell on it in detail.
§: Term and Termination
The contract is valid until the parties fulfill their obligations to the end or will not be terminated by their initiative. This is accepted by default. But it is important to clarify that the clause on the preservation of commercial secrets under the project is valid indefinitely â even after the termination of the entire contract. This refers to provisions relating to intellectual property and materials exchanged between the parties.
The following provision stands apart in this section: if the contract is suddenly terminated at the initiative of the customer or as a result of his failure to fulfill his duties, then the prepayment is not returned to him in order to compensate for losses incurred by the agency.
The last point may seem controversial, especially from the point of view of the customer: since it was decided to curtail the work before the appearance of the final product, there is nothing to pay for. Studios, on the contrary, want to receive payment for unfinished work as for full.
The truth, as usual, somewhere in the middle. The scheme will be fair, in which each stage is divided into working days, and prepayment is refunded for those days that remained until the deadline at the time of termination of the contract. Yes, the studio in this case is experiencing some inconvenience. But according to the law, only the actual expenses incurred should be paid, and not the fact of the teamâs working time reservation. This is what Article 717 of the Civil Code of the Russian Federation says: the contract may provide, in addition to paying for the cost of the work itself, the costs of purchased, but not used materials, for model services and third-party contractors.
Practice:
Work on creating advertising was divided into three stages:
1. concept development (10 working days),
2. final visualization of the chosen concept (15 working days). It was meant to shoot with the selection of models, with the rental of objects and premises, retouching of the captured frames and layout layout,
3. Adaptation of the layout for different formats and sizes of modules. According to the contract, the client paid each stage with a prepayment of 100%.
The client decided to roll up the work immediately after the shooting, on the fifth day of work on the second stage. We have not yet started retouching and layout, and the client had to return the prepayment for the remaining ten days. But we have already incurred the costs of paying for the work of models, renting a studio and items in the frame. The customer was refunded an advance payment minus the cost of five days of work and the indicated additional expenses.
What can complicate settlements with the customer in court?
Some of our colleagues stipulate in their contracts that 70% of the prepayment does not return to the client in any case, even if he refused to work on the project the next day after payment. This kind of compensation for the reservation team for a certain period. The logic, of course, is in it. But such a condition is justified if the agencyâs work schedule is very tight, and any discrepancies with one client may affect others. This is not just a requirement of "supreme justice." In the event of a trial, you will have to convincingly substantiate the âirretrievableâ amount - what expenses, losses, or loss of profits the studio has incurred.
You can also note the point about the place of the trial in case of the most unpleasant end of cooperation. We recommend that you specify the place of consideration of the case nearest to you arbitration court. This will change the general rules of jurisdiction, enshrined in the Arbitration Procedure Code, and will save on travel to a foreign city.
§: Intellectual property
For some time, our standard contract did not regulate copyright issues, but little by little, point by point, we began to include the relevant provisions in it. By and large there are two of them: one concerns the duties of the customer, the other - the performer.
The customer is obliged to provide the source materials, completely free from claims of third parties. And if the source is still "unclean", then the responsibility for this is borne by the customer. What kind of materials are transmitted, is recorded in the transfer act. Do not forget that any movement of information in both directions should be reflected in the documents.
The contractor, in turn, guarantees that everything he has done under the project is also not burdened with copyrights. And with responsibility in this sense, it is similar: if the authorship of the final work is in doubt, then the agency bears full responsibility for it.
In addition, the contract determines the scope of rights transferred to the client at the end of the project. Of course, all rights are transferred only when signing the act of acceptance. As a rule, all types of advertising are available to the client: by cable, on the air, publication in print media and on the Internet. The client is prohibited to change the design of the site and decompile the code of the site and any resulting software products.
The contract specifically states that when using any finished work, such as a site, the client is obliged to keep the artistâs signature on it: the logo with a hyperlink on the first page. The agency, in turn, receives the right to use the clientâs name in the portfolio.
Practice:
Some, usually very large, clients insist on signing a special annex to the contract - ânon-disclosure agreementsâ. It came to us from Western practice, where the NDA (Non-Disclosure Agreement) is called. It states that the studio has no right to publish the result of the work for a period of time or not at all. This is due to the reluctance of the client to share with someone the popularity of their brand and to disclose to competitors information about their contractors. It is true that when the NDA is signed, the cost of the project increases.
In our practice, there have been cases when the client suddenly insisted on removing any press releases about the project without signing any NDA. In one case, it was possible to convince him not to do this: it is impossible to remove materials already placed in the media, and if it does, it can damage the reputation of both the studio and the client. In another case, the client, without agreement with us, took incorrect steps, which, in his opinion, should have resolved the situation. The head of the marketing department went to the news site and left an unpleasant comment under the project material. After this, we did not conduct any negotiations with the client, everything was left as is.
Do not need amateur
It will be fair to supplement the protection of intellectual property with some nuances of the relationship between the contractor and the customer. For example, do not allow the client to use off-the-shelf materials. For example, pictures drawn for the site can not be used in the company booklet or in advertising.
It happens that a client without the knowledge of the agency changes something arbitrarily in an already accepted job. This can happen because a new project manager has come to the client, who, in his opinion, knows better how to create websites and design. Or the client himself talked to his wife or friends, and it was decided to repaint the logo to the color of the wallpaper in the bedroom. To fight this is almost impossible, alas. Perhaps the only thing that can be done is to ask to remove your signature from work with dignity. This can be specified in the contract as a separate clause.
Practice:
In our agency this happened several times. In the case of sites, everything was decided in a standard way: we called and asked the client to remove our logo. Sometimes the client wondered why? A delicate explanation of the situation followed: âthe changes you have made by your new contractors, in our opinion, do not correspond to the quality of our work. Our logo can be misleading for visitors and harm our reputation. â In all cases, the client agreed to remove the signature.
Once there was an unauthorized change by the client (state authority) of the logo. The calls yielded nothing (âour boss knows better, this is his son who has drawn the leaves!â), And we removed the work from our portfolio and removed the mentions of it in the network as far as possible.
What the client most often argues
Of course, not every client is used to the fact that the contractor offers him to use his own, not the most standard and concise form of the contract. Claims to the document often arise: customers are surprised at the meticulousness of the contractor and express dissatisfaction with specific clauses of the contract.
Leaders in the appearance of a protocol of disagreement.
The clause that the customer is obliged within three working days to either accept the work or to provide a reasoned refusal, otherwise the work will automatically be considered accepted. Customers do not like that someone decided to limit their time to think. Therefore, they are asked to completely remove this item. As a rule, we do not go for a total exception, but we offer a compromise: increase the period to 5 or even 7 working days.
Often the client does not fit in these terms. Usually we wait patiently. When it takes too long, two weeks or more, to wait for an answer to every change in the layout, we first gently remind him of the dates, then ask for meetings with the management. We explain that overly slow customer response harms our common cause, and we remind you that a customer always has the right to refuse to work with us if something does not suit him.
The clause is that if the customer himself does not comply with the response terms or writes unmotivated refusals, this will deprive him of the right to refer to the court for violation of the deadlines by the studio. Often there is a request to remove this item: the clientâs lawyers are afraid that they are deprived of something.
Responsibility of the client about the copyright to the materials provided to them. Here we honestly explain that even if we remove this clause from the contract, we will not help it with anything: the responsibility for violating the rights of third parties will remain with the material supplier. A clause of the contract is intended to remind the customer once again of caution.
Pre-Trial Dispute Resolution
Such a complex contract has the primary purpose not to help in court, but rather to insure additionally against the most unpleasant - the legal dispute. However, between the appearance of disagreements and the court proceedings, there is another stage - the pre-trial (claim) procedure for resolving disputes.
If one of the parties violates the contract, the other should send a written complaint to her address with a request to eliminate the violation: provide the necessary materials, respond to the sent request or pay the due. It usually means that a response to a claim must follow within one calendar month. If during this time the violation has not been eliminated, then you can go to court.
The claim procedure may not be provided by the contract, in this case, the parties meet immediately in court. However, we recommend to include it in the contract - no additional airbag will prevent anyone from doing so.
Practice:
When one of the clients delayed payment for a month, not answering calls, and finally said: âDo not call me more, when there is money, then I will pay, clear ?!â, we really didnât call him anymore, but sent written claim. The text was like this: âThen the parties entered into such and such an agreement, in which it was fixed that when the contractor finishes the work, the client is obliged to pay for it. The work is completed on such and such date that was recorded by mail, as well as an act of acceptance and transfer of work. According to the contract, the customer was obliged to pay the rest within three working days from the moment of termination of work, but did not do this. We demand to pay the rest of the remuneration to such a date (the monthly period is specified from the day the claim was sent to the client), otherwise we reserve the right to go to court. â
The claim had an effect: in two days money was received in our account.
What are the applications
Everything that the parties agree on prior to the commencement of work or in its process, should be drawn up as annexes to the contract: briefs, technical tasks for the sites, specification of the list of works, change in prices or terms of the project. Annexes to the framework agreements generally should contain the specifics that are not included in the "parent" agreement: subject, term, price and other nuances of the work.
If living models are involved in the project, then a special agreement is signed with them, in which the model consents to the use of its image for commercial purposes. So the Law requires - art. 152.1 of the Civil Code. The model refuses any claims, as well as the right to distribute the material provided to it, for example, if the sources of the photo session are given to her as a bonus. This can be useful so that the pictures made for a large project do not start leaking into various social networks âto avatarsâ.
The agency, in turn, guarantees that the material with the model will not go to other commercial projects. That would be dishonest. Agreements with models are not transferred to the client, but remain with the contractor.
The benefits of bureaucracy
Is it difficult for an agency to adhere to such a complex document? At first, yes. But this is like the organization of a complex, but very powerful system: it is enough to set it up once to make your life easier for a long time. Stock up evidence for the court is not the main goal of all legal rigor in working with the customer. Much more important is the other function of the contract - to discipline, not only the customer, but also himself.
A detailed contract with a clearly defined order of work, as a permanent silent reminder of composure and discipline, teaches both parties to be polite, to appreciate each other's time. But most importantly: it helps to create talented, creative and effective projects that will please both the studio and its happy clients for a long time.
UPD: Actually, our contract is http://cl.ly/5SQL . There is a 50x50 payment.
I remind you that the Lebedev Studio contract template was taken as a basis, and if you want to sort it out in a rather complicated original source, then we welcome you.
Source: https://habr.com/ru/post/116066/
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