I’ve been working in web development and with clients for over ten years now & I’ve learned a lot of things. 95% of the clients we work with we have had a great relationship with, and we continue to long after them coming on board. That’s because we are friendly and transparent, we tell it like it is and we know what the heck we are doing.
But occasionally, you will meet someone who just isn’t the right fit for your agency. And dare I even say, could be the proverbial client from hell? Occasionally expectations are skewed, and communications can break down.
In the last ten years, I can count on one hand, with some fingers missing, the number of times a relationship has turned sour, and any examples I cite in this post are things I have learned along the way.
Jason Swenk, an Agency expert, says that there is no such thing as a bad client, only a bad prospect. I think this is a bit cliche. Occasionally you will meet someone and later find out they have bounced from agency to agency, causing devastation as they go. It’s always good to look for red flags, but that’s another subject altogether.
If you are a new agency owner or freelancer reading this post, then my advice is to get a killer web contract and have it written into every project you do.
So without further ado, I’m going to share how to create a great set of killer and legally binding terms and conditions for a website, which you are free to use in your own projects. The web design contract template is at the bottom of the page for you to download.
Disclaimer: I’m not a lawyer, but we did have our website development contract drafted by a legal expert. Whilst it’s not necessary to do so, it’s a good idea, if you can, to get a lawyer to draft you some formal, wordy TS & Cs, which you can simplify for each project.
Our Killer Web Contract:
here’s a section-by-section example. The grey sections are my comments, everything else is more or less as it’s written. Want a download? It’s at the end.
What you can expect working with us
Start with something upbeat: No one expects the Spanish Inquisition, as they say, and you don’t want to start a new client relationship expecting it all to go pear-shaped. You are here to design and develop something great, so let’s do it!
We value each client relationship highly and hope to foster a long and fruitful partnership with <you, the client>. In the spirit of honest collaboration, we feel it’s important to point out what you can expect of us, and what we are and are not as an agency.
About You
This is where you want your legal information.
Made By Factory Limited are a company incorporated in England and Wales whose registered office is at 16 Blackfriars Street, Manchester, M3 5BQ. Company number 08647757.
Your Promise To The Client
What are you promising the client? This is an agreement. It’s not all about what you expect from them, but what can they expect from you? They are paying you, after all.
We agree that we will stick to the brief and deliver what we have proposed to you, adhering to industry best practices and webmaster standards.
We will carry out all the tasks assigned to us in the project plan and any work reasonably necessary or required to complete your project, including communicating regularly to ensure we have everything we need from you.
We will provide our services with all reasonable skill and care in accordance with good industry practice and modern web standards.
We will communicate this to you if you ask us to create something that is not best practice. We will provide any deliverables and documentation as per the brief, our agreement and what is laid out in our original plan.
If You provide us with any personal or sensitive data, we will comply with the The General Data Protection Regulation (GDPR) (EU) 2016/679.
What You Expect From The Client
It’s really important to set out clear expectations of what you need and when. When we create websites for clients, we send a clear project plan and timeframe. That way, we can all be on the same page.
Be clear about delays. If a timeline is twelve weeks, for example, make sure you set out clear waypoints during the project. If a client sends you all the content in week 11, are you still going to have the work done in week 12?
The same goes for quality. I once waited a year for content, and when I finally received it, it was two paragraphs and four jpegs. The client didn’t have clear expectations of what was needed. They ended up having another website built elsewhere. I imagine the new agency had the same issues because there were still only two paragraphs and a couple of images.
It’s also worth mentioning if delays will push a project back further than the delay time. For example, if the content is two weeks late, does it push the project back two weeks, or will it have to be rescheduled? Be crystal clear on this.
You agree to perform tasks and provide any other support specified as being provided by you in our project plan.
If You don’t do this, we may not be able to provide the service or deliverable, and you would still be liable for time spent to date.
You agree to provide us promptly with all information and support that We reasonably require or request from time to time whilst we are working on your project so we are not delayed in performing our obligations to you.
If You don’t do this, we may not be able to provide the service or deliverable, and you would still be liable for time spent to date.
If ee can’t provide the Service or part of the Services because of any failure by You to provide any support under the project plan, then we cannot be held liable for any delays and, in some circumstances, termination.
You undertake to Us that any personal data You supply under this Agreement shall comply with the provisions of The General Data Protection Regulation (GDPR) (EU) 2016/679.
Getting Paid
What are your expectations around payment? Rarely have I not been paid, but you have to be clear on your expectations, no matter how great the client is. My worst experience with payment was very early in my business journey. A client used payment as a carrot and sent round after round of revisions that were clearly out of scope and refused to pay until the revisions were done.
It’s worth pointing out here that we ended up firing the client, which is when we contacted a lawyer and had some good terms and conditions drafted.
You should decide up front whether payment and time are tied together, whether you will be paid on set increments, regardless of how much work has been completed, or whether you will invoice at clear milestones. Both have advantages and disadvantages.
Will you invoice upfront before work is done, or will you wait for it to be done?
It’s our policy on a web build to take a deposit of 40%, and once the design has been agreed, an interim payment for development of 50%. We make it clear that this is in advance. We have had experiences with clients who say they want to see more work before they pay the next instalment. Now, you must decide whether to down tools or renegotiate your project.
We don’t allow withholding of payment based on perceived performance. This should be handled separately.
Fees are paid to Made By Factory Limited as set out in the estimate and our agreed payment schedule. You don’t have to pay Us any Fees or disbursements unless We have sent You an invoice.
Our invoices are subject to VAT. We request payment by BACS or Electronic Bank Transfer.
Paying to us is wholly without prejudice to any rights or claims you may have against us. Neither is it an admission that our performance to date has been as required.
This is promised separately in part B. On this basis, it is agreed that you cannot make deductions and defer payments regarding a dispute unless this has been resolved by an agreement or dispute resolution process.
All invoices We send You will be in pounds Sterling unless specified otherwise. The deposit is due before work commences. All other invoices are subject to 30-day terms unless agreed otherwise.
If A Client Is Withholding Payment
People are human, and people forget, but you will start to get a feel over time if someone is just not paying you because they would rather hang on to their money.
I once completed a project I was immensely proud of. I had put in loads of extra work, and the site was running and transactional. But for some reason, the client decided all of a sudden they would pay me £50 per month against the balance.
They had decided, for some reason, that they could pay me a token sum, and there was nothing I could do. I had done the work, and the site was earning money. It was absurd. It turned into an unnecessary situation, with us having to take legal action and the client threatening to sue us (but with literally no grounds to do so); in the end, we did lose some money by cutting our losses and firing them, recouping some but not all of the costs.
A few months later, I received an email from their current agency, and they had done the exact same thing to them too. Value yourself. You deserve to get paid!
Our contract invokes the right for us to cancel the project if payment is withheld, allowing the client to take the work completed to date but releasing us from the contractual obligation to finish it.
I always assumed that everyone who hired me wanted a finished product. But I discovered it’s just not always the case.
Although we know human nature and we can agree upfront some flexibility, please let us know in advance if there will be any issue in paying an invoice on time so we can come to an agreement.
Late payment or failure to communicate with us may result in the following. We may need to stop working on your project and commence working on other scheduled projects.
We will give you 14 days written notice that We will do this. Before providing this notice, We will make at least one attempt to engage with You to confirm when payment will be made.
If we still do not receive payment, we reserve the right to terminate the agreement. In the event of any dispute in relation to the Fees or the provisions of this clause, both of us will seek to always resolve the matter in good faith and attempt to resolve the matter amicably.
Who Owns The Project?
Simply put, you do. The law protects the creator and designer until IP is handed over to the client.
Large-scale companies will have their own rules regarding this, and you will likely be the one signing their agreement and not vice versa.
As a rule, when I design a brand identity, I pass the IP to the client on completion. It’s theirs to do as they see fit. And they need that freedom.
Websites are slightly different in that they often utilise open-source technology, so whilst the look and feel can be unique to the client, they don’t own the code. It’s licenced under the GPL.
“Intellectual property rights” means all patents, rights to inventions, copyright (including rights in software) and related rights, trademarks, service marks, get up and trade names, internet domain names, goodwill rights or to sue for passing off, rights in designs, database rights, rights in confidential information (including know-how) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or shall subsist now or in the future in any part of the world.
Wow, that was a long sentence.
First, you guarantee that all elements of text, images or other artwork you provide are either owned by yourselves, or that you have permission to use them.
When you provide text, images or other artwork to us, you agree to protect us from any claim by a third party that we’re using their intellectual property.
We guarantee that all elements of the work we deliver to you are either owned by us or we’ve obtained permission to provide them to you.
When we provide text, images or other artwork to you, we agree to protect you from any claim by a third party that you’re using their intellectual property.
Provided you’ve paid for the work and that this contract hasn’t been terminated, we’ll assign all intellectual property rights to you as follows:
You’ll own the website we design for you plus the visual elements that we create for it. We do keep these files as a back up although we are not required to and cannot be held liable for their loss after the project has been delivered.
We can arrange for daily backups to your website. We own any intellectual property rights we’ve developed prior to, or developed separately from this project and not paid for by you.
We’ll own the unique combination of these elements that constitutes a complete design and we’ll license its use to you, exclusively and in perpetuity for this project only, unless we agree otherwise.
Your Portfolio
If you want to display client work in your portfolio, it’s a good idea to mention it here. It’s only polite.
We love to show off our work, so we reserve the right to display all aspects of our creative work, including sketches, work-in-progress designs and the completed project on our portfolio and in articles on websites, in magazine articles and in books.
When working on projects, we like to share updates of our work in progress across social channels. These may be code screenshots, interface layouts, or just pictures of us working. We promise not to disclose any sensitive information, and if the project involves a rebrand or product that is not launched, we can ensure this is kept out.
What Are You Bringing To The Table?
It is only fair that if a client is paying you, you can do the work. It’s a cowboy industry, and there are a lot of ‘back bedroom’ web designers out there, charging plenty and delivering nothing.
We are skilled, trained and qualified, and we are proud of it. I have a teaching background, I am an avid learner, and my business partner is an ex-googler. We get results & Clients deserve results.
Are you completing the project in-house, or will you use third parties? If so, where does that leave you if it all goes to pot?
We can confirm that We have access to sufficient, suitable and experienced staff to complete your project.
We may from time to time recommend third parties for particular elements of projects we don’t have an in house staff member for (for example animated explainer videos)
In any event we can advise you from our list of trusted suppliers. We indemnify ourselves from any third party we have recommended you to outside of the scope of the brief.
We will always advise to the best of our knowledge, third parties that have an excellent reputation and history. We will let you know if any of our team become unable to work on the project and if so, We will replace that person with an equally suitable and experienced person.
If a delay is caused (despite Our reasonable endeavours) to replace any person it shall be treated as a Force Majeure event. We will use our reasonable endeavours to ensure that our staff work with your usual staff and security practices if they need to attend Your premises (as long as you let us know what these are beforehand).
Changes and Scope Creep
Ah, the dreaded scope creep. Changes happen, and that’s ok, It’s good to be flexible. But have a plan. What is a change? What is a revision? Is it a bug or a feature?
How will you agree to these changes? Will you charge for them? Don’t end up in that carrot-dangling situation that I did.
If a change takes you way off the original scope, can you get out of the contract? For example, if you agreed to produce a WordPress website and the client suddenly decides they want to use a different CMS, and you have no experience with it, can you part ways?
Design is an iterative process, and we leave room for flexibility in our projects. Tweaks are fine, and we have allowed leeway for this. As such, we do not see these as ‘Changes.’
Sometimes though, the direction changes, you have a big idea, or you feel an initial idea is not worth including. That’s ok, just let us know, and we will endeavour to refactor this into your existing workflow as best we can.
If either of us sees a need for a change in the project and/or its deliverables, they will inform the other of the need for a change as soon it has been identified, the reason why it is necessary and any other details which may be necessary to assess the impact of the change on the agreement.
We can agree on these changes by exchange of email. If a change is requested, We will arrange to speak with you for a good-faith discussion about the change request. If the change is major and impacts the original agreement, we will complete an agreement change form. This can be done over email.
The Agreement change form will vary this Agreement when confirmed by both of us. We may sometimes identify a change which is required to deliver your project or deliverable or to meet the requirements of the brief.
This could be due to something that wasn’t identified in the brief. If the above change isn’t because of any failure or default of ours and we have no way to carry it out, we will be entitled to terminate the agreement and be paid all the fees appropriate to the works We have carried out to date.
Examples of this may be that you have asked us to develop an iPhone App and mid-way, you change to an Android App.
What about cancelling?
We genuinely don’t mind if someone wants to cancel as long as we are paid for the work we have done.
Not everyone is the right fit. And sometimes, projects change because the goals of the business change. So be prepared for this to happen on occasion.
We understand that sometimes, things happen, you may change your mind or decide not to go ahead with that project. In this event would ask you for 14 days notice and you agree to pay us for the time we have spent so far.
Cancelling When The Client Misbehaves
In my experience, you really want a set of conditions under which you can walk away from a contract.
It’s not worth the mental energy to be locked into a project where you work in resentment, and the client is unhappy. It’s not good for any of the parties involved.
So occasionally, the contract is breached. You need to outline in advance, what this might look like, and how you will proceed in the event of it happening.
Immediate termination may happen if the following occurs: breach of agreement where there is a failure to try to remedy the agreement, and it is still not resolved after 14 days. If the other breaches a material provision of this Agreement and that breach is not capable of being remedied.
Either of us will be deemed to be in default of this Agreement if:
There is any change in the direct or indirect beneficial ownership or control of that party, that affects any of the original agreement or ability to complete it, or be paid for it.
That party disposes of the whole or part of its business, operations or business other than in the ordinary course of business
That party ceases to carry on business;That party ceases to be able to pay its debts as they become due
That party passes a resolution, or a court makes an order that the party be wound up otherwise than for the purpose of a bona fide reconstruction or amalgamation;a receiver, manager administrator or similar official on behalf of a creditor is appointed in respect of the business or any part thereof of that party.
That party has an administrator appointed or documents filed with the court for the appointment of an administrator or notice is given of an intention to appoint an administrator by such party or its directors or by a qualifying floating charge holder (as defined in the Insolvency Act 1986 paragraph 14 Schedule B1);
That party is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986. any similar event occurs under the law of any other jurisdiction in respect of that party.
Limit your damage.
My good friend had a rogue client that he couldn’t please. One day they randomly sent him an invoice for 20k, claiming ‘loss of earnings’.
They didn’t have any grounds to send it, and he didn’t have to pay it, but it’s a lot of hassle to deal with when a relationship takes this kind of turn.
You should ensure you are only liable for the maximum of the project’s worth.
We do not exclude liability for fraud, death or personal injury to the extent to which it arises from Our negligence or breach of contract.
Our liability for any breach of this Agreement resulting in direct loss or damage, shall be limited to damages which shall not exceed the total sum paid by You under this Agreement in the 12 months before the event giving rise to the liability or: £5000 (or whatever amount you need)
Indemnity. Make Sure You Have Insurance.
We (first party) agree to indemnify all staff, employees agents (second party) against any costs or expenses arising out of any claim against the second party, by any person arising out of or as a consequence of any unlawful or negligent act or omission of the first party.
The indemnity extends to and includes all costs, damages and expenses reasonably incurred by the second party in defending any such action, proceeding claim or demands.
Force Majeure
Because sometimes, stuff happens that we have no control over. Like global pandemics.
‘Force Majeure’ is a legal terms and for the purpose of this Agreement means anything outside the reasonable control of either of us, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage or failure, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, transportation embargo, failure or delay in transportation, including any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency.If We are wholly or partially precluded from complying with its obligations under this Agreement by Force Majeure, for more than ninety (90) days then without prejudice to any other existing rights, You have the right to immediately terminate the Agreement.
