Thin moments in the contract for the development of the site
Hi, Habr! I continue my cycle of materials about marketing, sales and customer service of web studios and agencies. Today I want to consider such a local topic, as the conclusion of a contract for the creation of a site, and talk about its thin places.
I will not touch the general sections, the structure of the contract and other global things, the normal pattern can be found without much difficulty.
* Immediately I need to make a reservation, I am not a lawyer, therefore the formulations I have cited can be considered recommendations in the sense, but not the form.
')
So, I prepared a certain list of unobvious points that I have repeatedly encountered in practice. Let's start:
Very often when communicating with a customer when launching a new project, the placement of the “brand” of the studio on the site (“Made in XXX”, etc.) becomes a conflict point. If the moment is not specified in the contract, then convincing the customer to listen to your arguments can be difficult. Often, problems arise at the very last moment, even if the label was initially present on the layouts and on the test zone: “ Oh, but we didn’t think that this would go to the main version of the site .” So what is recommended to do:
One of the possible options to exclude these points may be to increase the contract price. Only it is necessary to designate the customer in advance, and not upon the fact of disagreement. For example, the following model has the right to exist: “ We place our label on our websites. The corresponding item will be spelled out in the contract. If you are categorically against it, the price of the contract will be increased by 10%, so that we can compensate for the lost marketing benefit, which was included in the default estimate . ”
* Of course, these items are not always possible to keep in the contract. Many large Western companies have a certain policy of working with suppliers, which prohibits them from announcing the fact of work, and there's nothing you can do.
And yet I will give a couple of recommendations on the non-legal argumentation of your position. First, it is necessary to explain to the customer that this practice is common in Russia (give examples of sites of large companies with established labels). Of course, he may in response lead sites on which they are not installed. Secondly, it is necessary to gently explain that pricing is structured in such a way that the fact of placement and the subsequent effect in the form of an influx of new customers is taken into account, therefore, if the label is not installed, you will receive less benefit.
And, of course, if you publish works in a portfolio and release in external media, it is good practice to agree on these materials with the customer's PR service beforehand. I have seen several examples when, due to such trifles, a relationship with a large client deteriorated.
Often, in a contract or application where the work plan is indicated, a number of stages within large blocks that are closed by acts, overlap. You need to write about this directly, so that the customer will not be able to accuse you of delaying the delivery of results at the intermediate stage or the start of work on it. To do this, it is necessary to give in the plan explanatory signatures of the form “ Works on stage 1.2 begin after completion of stage 1.1 and proceed in parallel with stage 1.3 ” or “ Step 4.5 begins after completion of works on stages 4.4. and 4.3 ... "
A very common situation is when a customer delays certain stages of work (provision of materials, approval of layouts). If not stated otherwise, you will receive exactly as much additional time as the customer has delayed the stage. And that could break your production plan. For example, the customer was hibernating on materials a month, and suddenly surfaced. And in a week you should provide design layouts, but for obvious reasons, your entire plan for the design department has long been engaged in other projects.
Therefore it is recommended to add the following clause to the contract (within the meaning): “ In case of delay in any of the work stages due to the Customer’s fault (by N working days), the work plan is shifted by 2xN working days ”. It is clear that the coefficient may vary.
Often when drawing up a plan, studio management forgets to set aside time to agree on the stages of work or sign acts. As a result, the total “working” number of days is reduced by one to two weeks due to these delays. The coordination and signing of acts should be taken out by separate points in the plan, and with instructions in responsible both parties.
Often, in the course of work, problems arise in terms of fixing results, accepting and signing acts.
First, each large block of works must be recorded by an acceptance certificate, and this should be indicated in the contract and in the work plan. This will confirm the fact of their implementation in the event of a trial (and also helps at the level of resolving the conflict with the management).
Secondly, it is possible to prescribe the following mechanism in case the customer simply disappears from the radar: “ The customer is obliged within 10 working days from the receipt of the Act, make the final payment and send the signed copy of the Act to the Contractor. In case of non-compliance of the works with the agreed conditions, the Customer sends the Contractor a reasoned refusal indicating the non-conformities. If the Customer does not sign the Act, without a reasoned refusal to accept the work, within the aforementioned period, the work is considered accepted . ”
It is clear that for such an “automatic” reception you will need evidence that the act was delivered - a note on the delivery of a registered letter or a courier service report signed by the customer’s representative.
Sometimes there is a situation where the customer sends you materials that you have doubts. For example, a small regional company gives you a photo of Keanu Reeves and asks you to place it on the main page as the face of a brand. Everything is clear, but what about when you are not sure about the origin of the materials and whether the customer has the appropriate rights? How to protect yourself from lawsuits and claims from third parties?
The following clause can be stated in the contract: “ The Customer guarantees (and is fully responsible for the violation of this obligation) that all Information Materials provided to them are free from claims of third parties and the fact of their transfer to the Contractor does not violate patent, copyright and related rights, as well as rights to commercial secrets of third parties . " The fact of the transfer of materials can be closed by a separate act.
Often the customer insists on specifying the penalty for failure to meet deadlines. This is a normal practice. The main thing is to specify the “market size” penalty (in our case - 0.1% -0.5% for the working day of delay), as well as the limit: “the total amount of sanctions should not exceed 10% of the cost of work ”. The percentage may vary depending on your negotiating skills.
Sometimes you have the need to attract to work on the project of third parties who are not listed in the state of the company (and, accordingly, are not obliged to respect trade secrets). For example, a freelancer, or subcontractor. It is clear that they need to sign the relevant documents (NDA, etc.). But how to indicate this possibility in the contract with the customer? You can write the following wording: “The executor has the right, on his own behalf and at his own expense, to involve third parties in the work, and the Contractor is solely responsible for the actions / omissions of those in relation to this Agreement, as if these actions / omissions were performed directly by the Contractor ".
And the last point, which is not a very subtle point, but rather a preventive measure that can simplify life after the launch of the project.
Very often, especially with large companies, the next moment arises. The site is open, hosted on your servers, you provide some minimal support. And the application for hosting and support is stuck between the numerous legal and financial departments of the client. And it can hang there for months. And since the site works, support is provided, the manager on the client’s side doesn’t particularly force this task. You do not receive money on time, and besides, if after 3-4 months of such blurring of the topic the customer decides to transfer the project to your hosting or support, you may not see this budget at all.
Therefore, the following wording can be added to the development contract: “ The total cost of the work includes technical and informational maintenance of the site for one calendar month in accordance with step XX. After one calendar month from the moment of opening the site in free access, technical maintenance of the site is payable in the amount of YYY for each calendar month, unless otherwise agreed by the Parties in the contract for technical support and maintenance of the site . ”
She is all good - the customer sees the month of service for free (of course, it should be laid in the initial estimate), and you get a breather and safety net for the period of signing the support application.
- At this, probably, everything, I really hope that the material will be useful and help to avoid unpleasant incidents. The article is based on my experience of working with an executor in ADV / web-engineering (mostly), on the part of a customer - in Megaplan, and, of course, in communication with representatives of a large number of different studios and agencies.
I'm pretty sure that the discussion of these and other subtle points in the comments may be even more informative than what I have already described =)
Terekhov Andrey
Other materials from a habr-cycle:
Typical errors on web-studio own sites
Participation in the tender for the development of the site (part 1)
Participation in the tender for the development of the site (part 2)
Organization of active sales in web studios
Classic “Sales-PM-Account” triangle in an online agency
I will not touch the general sections, the structure of the contract and other global things, the normal pattern can be found without much difficulty.
* Immediately I need to make a reservation, I am not a lawyer, therefore the formulations I have cited can be considered recommendations in the sense, but not the form.
')
So, I prepared a certain list of unobvious points that I have repeatedly encountered in practice. Let's start:
Copyright installation and posting in portfolio
Very often when communicating with a customer when launching a new project, the placement of the “brand” of the studio on the site (“Made in XXX”, etc.) becomes a conflict point. If the moment is not specified in the contract, then convincing the customer to listen to your arguments can be difficult. Often, problems arise at the very last moment, even if the label was initially present on the layouts and on the test zone: “ Oh, but we didn’t think that this would go to the main version of the site .” So what is recommended to do:
- The right to put a mark on the pages of the released site. It is possible to fix in the contract the following item “ Contractor’s trademark (if any - the registration certificate number) is set by the Contractor on the developed design layouts. This element should be saved in the future without changes, and be present on the site, developed based on the results of work under this Agreement. A hyperlink to the xxx.ru website must be present on the trademark. The appearance and position of the Contractor’s trademark on the Customer’s website is determined by the parties at the stage of acceptance of design layouts. ”
- The right to publicly mention the authorship of the work and place in the portfolio. Even if for one reason or another you were not able to break through the first paragraph, it is better for you to pre-pledge the possibility of at least publicly stating the fact of the work done. Possible wording: “ After completion of the work and publication by the Customer of the results of the work, the Contractor has the right to publish information about the work performed, which is not confidential information of the Customer; as well as publish the results of work as a model of their activities, namely (the list below) . "
One of the possible options to exclude these points may be to increase the contract price. Only it is necessary to designate the customer in advance, and not upon the fact of disagreement. For example, the following model has the right to exist: “ We place our label on our websites. The corresponding item will be spelled out in the contract. If you are categorically against it, the price of the contract will be increased by 10%, so that we can compensate for the lost marketing benefit, which was included in the default estimate . ”
* Of course, these items are not always possible to keep in the contract. Many large Western companies have a certain policy of working with suppliers, which prohibits them from announcing the fact of work, and there's nothing you can do.
And yet I will give a couple of recommendations on the non-legal argumentation of your position. First, it is necessary to explain to the customer that this practice is common in Russia (give examples of sites of large companies with established labels). Of course, he may in response lead sites on which they are not installed. Secondly, it is necessary to gently explain that pricing is structured in such a way that the fact of placement and the subsequent effect in the form of an influx of new customers is taken into account, therefore, if the label is not installed, you will receive less benefit.
And, of course, if you publish works in a portfolio and release in external media, it is good practice to agree on these materials with the customer's PR service beforehand. I have seen several examples when, due to such trifles, a relationship with a large client deteriorated.
Deadlines - overlapping stages
Often, in a contract or application where the work plan is indicated, a number of stages within large blocks that are closed by acts, overlap. You need to write about this directly, so that the customer will not be able to accuse you of delaying the delivery of results at the intermediate stage or the start of work on it. To do this, it is necessary to give in the plan explanatory signatures of the form “ Works on stage 1.2 begin after completion of stage 1.1 and proceed in parallel with stage 1.3 ” or “ Step 4.5 begins after completion of works on stages 4.4. and 4.3 ... "
Breaking deadlines due to customer’s fault
A very common situation is when a customer delays certain stages of work (provision of materials, approval of layouts). If not stated otherwise, you will receive exactly as much additional time as the customer has delayed the stage. And that could break your production plan. For example, the customer was hibernating on materials a month, and suddenly surfaced. And in a week you should provide design layouts, but for obvious reasons, your entire plan for the design department has long been engaged in other projects.
Therefore it is recommended to add the following clause to the contract (within the meaning): “ In case of delay in any of the work stages due to the Customer’s fault (by N working days), the work plan is shifted by 2xN working days ”. It is clear that the coefficient may vary.
Time to agree on the results of work and the signing of acts
Often when drawing up a plan, studio management forgets to set aside time to agree on the stages of work or sign acts. As a result, the total “working” number of days is reduced by one to two weeks due to these delays. The coordination and signing of acts should be taken out by separate points in the plan, and with instructions in responsible both parties.
Acceptance of results, acts
Often, in the course of work, problems arise in terms of fixing results, accepting and signing acts.
First, each large block of works must be recorded by an acceptance certificate, and this should be indicated in the contract and in the work plan. This will confirm the fact of their implementation in the event of a trial (and also helps at the level of resolving the conflict with the management).
Secondly, it is possible to prescribe the following mechanism in case the customer simply disappears from the radar: “ The customer is obliged within 10 working days from the receipt of the Act, make the final payment and send the signed copy of the Act to the Contractor. In case of non-compliance of the works with the agreed conditions, the Customer sends the Contractor a reasoned refusal indicating the non-conformities. If the Customer does not sign the Act, without a reasoned refusal to accept the work, within the aforementioned period, the work is considered accepted . ”
It is clear that for such an “automatic” reception you will need evidence that the act was delivered - a note on the delivery of a registered letter or a courier service report signed by the customer’s representative.
Third party claims
Sometimes there is a situation where the customer sends you materials that you have doubts. For example, a small regional company gives you a photo of Keanu Reeves and asks you to place it on the main page as the face of a brand. Everything is clear, but what about when you are not sure about the origin of the materials and whether the customer has the appropriate rights? How to protect yourself from lawsuits and claims from third parties?
The following clause can be stated in the contract: “ The Customer guarantees (and is fully responsible for the violation of this obligation) that all Information Materials provided to them are free from claims of third parties and the fact of their transfer to the Contractor does not violate patent, copyright and related rights, as well as rights to commercial secrets of third parties . " The fact of the transfer of materials can be closed by a separate act.
Fines
Often the customer insists on specifying the penalty for failure to meet deadlines. This is a normal practice. The main thing is to specify the “market size” penalty (in our case - 0.1% -0.5% for the working day of delay), as well as the limit: “the total amount of sanctions should not exceed 10% of the cost of work ”. The percentage may vary depending on your negotiating skills.
Attraction of third parties
Sometimes you have the need to attract to work on the project of third parties who are not listed in the state of the company (and, accordingly, are not obliged to respect trade secrets). For example, a freelancer, or subcontractor. It is clear that they need to sign the relevant documents (NDA, etc.). But how to indicate this possibility in the contract with the customer? You can write the following wording: “The executor has the right, on his own behalf and at his own expense, to involve third parties in the work, and the Contractor is solely responsible for the actions / omissions of those in relation to this Agreement, as if these actions / omissions were performed directly by the Contractor ".
Hodovka with support / hosting
And the last point, which is not a very subtle point, but rather a preventive measure that can simplify life after the launch of the project.
Very often, especially with large companies, the next moment arises. The site is open, hosted on your servers, you provide some minimal support. And the application for hosting and support is stuck between the numerous legal and financial departments of the client. And it can hang there for months. And since the site works, support is provided, the manager on the client’s side doesn’t particularly force this task. You do not receive money on time, and besides, if after 3-4 months of such blurring of the topic the customer decides to transfer the project to your hosting or support, you may not see this budget at all.
Therefore, the following wording can be added to the development contract: “ The total cost of the work includes technical and informational maintenance of the site for one calendar month in accordance with step XX. After one calendar month from the moment of opening the site in free access, technical maintenance of the site is payable in the amount of YYY for each calendar month, unless otherwise agreed by the Parties in the contract for technical support and maintenance of the site . ”
She is all good - the customer sees the month of service for free (of course, it should be laid in the initial estimate), and you get a breather and safety net for the period of signing the support application.
- At this, probably, everything, I really hope that the material will be useful and help to avoid unpleasant incidents. The article is based on my experience of working with an executor in ADV / web-engineering (mostly), on the part of a customer - in Megaplan, and, of course, in communication with representatives of a large number of different studios and agencies.
I'm pretty sure that the discussion of these and other subtle points in the comments may be even more informative than what I have already described =)
Terekhov Andrey
Other materials from a habr-cycle:
Typical errors on web-studio own sites
Participation in the tender for the development of the site (part 1)
Participation in the tender for the development of the site (part 2)
Organization of active sales in web studios
Classic “Sales-PM-Account” triangle in an online agency
Source: https://habr.com/ru/post/162299/
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