Writing Portfolio

Creating Contracts:  Project Milestones & Materials Delivery Responsibilities

Published By: CreativeLatitude
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Writing ef­fec­tive, pro­fes­sion­al client con­tracts is one of the top five most re­quest­ed and most con­fus­ing busi­ness tasks fac­ing graph­ic de­sign­ers, web de­sign­ers, and oth­er cre­atives to­day. Designer Contracts is an on­go­ing se­ries of ar­ti­cles de­signed to help cre­atives write bet­ter, more thor­ough con­tracts that pro­tect cre­atives, their clients, and both par­ties’ rights, and helps cre­atives build se­cure, pro­fes­sion­al re­la­tion­ships with their clien­tele.

Disclaimer:  I am not an at­tor­ney, nor am I qual­i­fied to provide legal ad­vice. The above is based on my 15+ years pro­fes­sion­al ex­pe­ri­ence as a graph­ic de­sign­er and de­sign agen­cy prin­ci­pal writ­ing (with and with­out the help of legal coun­sel) con­tracts for cre­ative ser­vices. Use it as a guide­line. Before writ­ing or sign­ing any legal doc­u­ment I strong­ly rec­om­mend con­sult­ing a li­censed at­tor­ney in your lo­cal ju­ris­dic­tion.

Most designers—in-house, agen­cy, and freelance—have ex­pe­ri­enced a sit­u­a­tion in which dead­line is pushed or missed be­cause the client sits too long on some­thing the de­sign­er needs to do her job. If you’re new to this busi­ness and haven’t had this hap­pen to you yet, you will.

Design is a col­lab­o­ra­tive team process be­tween the client and the cre­ative. When one fails to de­liv­er a crit­i­cal piece of the project in a time­ly fash­ion, the oth­er is left twid­dling his thumbs. When the dila­to­ry one is the de­sign­er, she’ll like­ly be pe­nal­ized; when it’s the client drag­ging feet, the de­sign­er will still like­ly be pe­nal­ized.

Time-based con­tent de­liv­ery mile­stones, for both the cre­ative and the client, are es­sen­tial to main­tain­ing the flow of a project and the quality–indeed, the very existence–of a re­la­tion­ship.

The av­er­age client has NO IDEA what we do. They don’t un­der­stand the cre­ative process or the me­chan­ics of how we cre­ate what we do. Nor should they have to. That is, af­ter all, why they hire us. Nevertheless, when a project is run­ning be­hind or a dead­line missed, a client’s lack of knowl­edge of how we do this thing we do, and how we re­ly on the client, can cause ma­jor prob­lems. The client has ex­pec­ta­tions of cre­atives; cre­atives have ex­pec­ta­tions of clients. These ex­pec­ta­tions must be com­mu­ni­cat­ed for both par­ties to know what to ex­pect of one an­oth­er and of them­selves. In most cas­es, our abil­i­ty to do the job for which we were hired hinge on the client’s ac­tions. Without clear­ly com­mu­ni­cat­ed re­spon­si­bil­i­ties and milestones–for both the client and the creative–problems can (prob­a­bly will) oc­cur.

Some projects–for ex­am­ple a movie poster–are fair­ly sim­ple and up­front. Poster and oth­er col­lat­er­al de­sign for films gen­er­al­ly oc­cur af­ter prin­ci­pal pho­tog­ra­phy and at least ini­tial edit­ing has been done. By this point all the cred­its are fi­nal­ized. In such cas­es, the client is oblig­ed to provide on­ly the trail­er VHS or DVD and a list of cred­its as source ma­te­ri­al. Once those ma­te­ri­als are re­ceived, the de­sign­er is now free to cre­ate ini­tial sketch­es with­out wait­ing on any­thing fur­ther from a client. Other jobs, like a quar­ter­ly re­port or a web­site, usu­al­ly re­quire staged de­liv­ery of con­tent from the client. In in­volved projects like the­se you can on­ly do so much work be­fore you need more ma­te­ri­al from the client. If one client de­part­ment drags its feet, you’re not work­ing. If you’re not work­ing, the client may as­sume YOU are drag­ging your feet, re­gard­less of any protests to the con­trary. If the client doesn’t ful­ly un­der­stand your in­abil­i­ty to move for­ward with­out her help she’ll be­gin doubt­ing your abil­i­ty to do the job. If the client is look­ing for an ex­cuse to vend the job to a brother-in-law with a bootleg copy of Photoshop or to rene­go­ti­ate your fee, here is where she will do it.

If you do find your­self in a sit­u­a­tion where the project is stalled wait­ing for de­liv­ery of ma­te­ri­als from a client, look for cre­ative so­lu­tions to that prob­lem. Let me give you an ex­am­ple from my own ex­pe­ri­ence.

From 1995 to 2001 I was the prin­ci­pal and cre­ative di­rec­tor of an agen­cy in Central Florida (my of­fi­cial ti­tle was Chief Executive Imagination). In 1999 my agen­cy had been hired by a large com­mu­ni­ca­tions com­pa­ny to ex­tend the brands and rev­enue streams of four of its ra­dio sta­tions on­to the Web. We did it all:  Built web­sites; helped them be­gin broad­cast­ing on­line, cre­at­ed a con­tent man­age­ment sys­tem so disk jock­eys and re­porters could up­date Website con­tent in real-time; ex­tend­ed their au­dio on-air ad­ver­tis­ing sys­tem to ban­ner and co-branding on­line ad­ver­tis­ing, and; cre­at­ed a new ad sales and cus­tomer track­ing data­base sys­tem that not on­ly in­clud­ed sales, rev­enue, pro­duc­tion, and place­ment track­ing of ad­ver­tis­ing for the Websites but on-air spots as well. As you can im­age, this was a big un­der­tak­ing re­quir­ing that we work with every de­part­ment at the cor­po­rate as well as sta­tion lev­el. Some of those de­part­ments were less ea­ger than oth­ers to have to in­clude the Web in­to their op­er­a­tions.

The web­sites were launched in suc­ces­sion:  First the al­ter­na­tive rock sta­tion, then the clas­sic rock, then the Top 40, and fi­nal­ly the AM news sta­tion. The al­ter­na­tive rock sta­tion moved along quick­ly from start to fin­ish and launched to great fan­fare. When we need­ed some­thing, the sta­tion staff rushed it to us. The pro­gram di­rec­tor­for the clas­sic rock sta­tion, how­ev­er, saw no val­ue to de­vel­op­ing an on­line pres­ence for his sta­tion, re­gard­less of what his su­pe­ri­ors told him. So the sta­tion drug its feet every time we asked for some­thing (D.J. bios and head-shots, event cal­en­dars, show de­scrip­tions, ve­hi­cle pho­tographs, etc.). Their re­luc­tance threat­ened to put us be­hind sched­ule, which would have im­pact­ed the re­main­ing two sta­tions’ de­liv­ery sched­ules as well. After nu­mer­ous re­quests to the sta­tion and the cor­po­rate of­fice for need­ed ma­te­ri­als, we de­cid­ed to solve the prob­lem our­selves.

One Friday morn­ing, af­ter our week­ly meet­ing with cor­po­rate and sta­tion staff, my staff and I hung around the clas­sic rock sta­tion. Having se­cured all-access per­mis­sion from the cor­po­rate li­aison in ad­vance (and con­firm­ing it in front of the pro­gram di­rec­tor dur­ing the meet­ing) to ob­tain re­quired con­tent our­selves, we set about do­ing the leg­work the sta­tion wouldn’t do.

A cou­ple of us had mini-tape recorders, the rest notepads, and we vis­it­ed each D.J., get­ting from him a bio and a de­scrip­tion of his show. We took dig­i­tal pic­tures of every­one we in­ter­viewed. While my staff did that, I stopped by to vis­it the pro­mo­tions di­rec­tor. We spent two hours, he and I, go­ing over the station’s cur­rent and up­com­ing con­tests and re­mote broad­casts. We worked out a sys­tem com­fort­able for him where­by he would main­tain the events, con­certs, and venues cal­en­dars, and an easy method­ol­o­gy for get­ting to my agen­cy fu­ture con­tent re­quir­ing cre­ative work.

By that af­ter­noon, my team had every­thing we’d been wait­ing for ex­cept pho­tographs of the station’s iden­ti­ty ve­hi­cles. One of the station’s mo­tor­cy­cles we need­ed for the Flash an­i­ma­tion that opened the site, so it was crit­i­cal we get good shots of it at mul­ti­ple an­gles again­st a neu­tral back­ground. While I had been with the pro­mo­tions di­rec­tor, we had found a four-hour pe­ri­od a few days hence in which none of the four ve­hi­cles (two Harley-Davidson mo­tor­cyles, a Hummer, and a Dodge Dually turbo-diesel truck) were booked for re­mote broad­casts. My team lined up a suit­able stu­dio (an emp­ty re­tail store with white walls and doors large enough to dri­ve a Hummer through), prepped the space with um­brel­la lights and back­drop, and got our sto­ry­boards drawn up. A few days lat­er, we drove the ve­hi­cles in­to the stu­dio one at a time, pho­tographed them from every an­gle we might need, and we were done. We were ready to get back to work.

The pro­gram director’s re­peat­ed de­lays had caused us near­ly three weeks of time, but we worked over­time and man­aged to make up the time. The clas­sic rock station’s site launched on time–with full con­tent. Production on the oth­er two sta­tions’ sites be­gan and end­ed on sched­ule be­cause we didn’t let the re­luc­tance by one de­part­ment with­in the client’s or­ga­ni­za­tion slow us down. We were re­ward­ed with more work for the com­mu­ni­ca­tions com­pa­ny. If we had wait­ed for the clas­sic rock sta­tion to get us the con­tent, how­ev­er, we would have missed all three dead­li­nes and ir­repara­bly dam­aged our re­la­tion­ship with the client.

Solving prob­lems is what de­sign is all about. With that ra­dio sta­tion, I was able to solve the prob­lem with di­rect ac­tion. If the prob­lem had been different–if the client’s sales de­part­ment had been re­luc­tant to provide crit­i­cal in­for­ma­tion about the need­ed struc­ture of the ad sales and track­ing data­base, for example–my team and I might not have been able to solve the prob­lem our­selves. In that case, the whole project would have ground to a halt wait­ing on the ac­tion of just one of six­ty client reps with whom we had to in­ter­act. If the pri­ma­ry client contact(s) doesn’t un­der­stand the rea­son for de­lay or why you just can’t work around the miss­ing in­for­ma­tion, you’re in trou­ble. With the ra­dio sta­tions I dealt with just that:  My client li­aison didn’t rec­og­nize why we were stalled with­out the clas­sic rock station’s con­tent. Since we built the site as a range of tem­plates, the client saw the tem­plates but thought we had more to do since each and every page of the site hadn’t yet been cre­at­ed. Through no fault of the li­aison, she sim­ply didn’t un­der­stand why we couldn’t gen­er­ate the pages with­out the con­tent. The client didn’t com­pre­hend the process, so a de­lay on the part of a client rep­re­sen­ta­tive looked like a fail­ing on our part. If we hadn’t found a way around the one pro­gram director’s ret­i­cence, we would have jeop­ar­dized our re­la­tion­ship and the en­tire con­tract.

Don’t get your­self in­to sit­u­a­tions where­in you jeop­ar­dize a job be­cause the client isn’t do­ing what you ex­pect. Tell the client up­front what you ex­pect of her, when and how you ex­pect it. Tell her right in your con­tract which of your tasks are con­tin­gent up­on the com­ple­tion of hers, what she needs to provide and when for you to meet her ex­pec­ta­tions of you.

Don’t get in­to that ar­gu­ment. Build the mile­stones for BOTH PARTIES in­to your con­tract. Here’s an ex­am­ple from the con­tract of an ecom­merce cat­a­log site I re­cent­ly com­plet­ed:

V. Project Milestones & Materials Delivery Responsibilities

  1. Within two weeks af­ter the date first above writ­ten, [client] will de­liv­er to [agen­cy] the fol­low­ing ma­te­ri­als:
    1. Camera-ready dig­i­tal copies (.EPS or .PDF for­mat) of client’s logo(s) in full-color and in black-and-white.
    2. Camera-ready dig­i­tal pho­tographs of all prod­ucts to be made avail­able for sale on the web­site. Note: If hard­copy pho­tos are to be sent, or if pho­tos (ei­ther dig­i­tal or hard­copy) will re­quire cor­rec­tion or re­touch­ing by [agen­cy], [agen­cy] will re­quire ad­di­tion­al time which may push back sub­se­quent mile­stones as spec­i­fied be­low. If such is nec­es­sary, [agen­cy] shall com­mu­ni­cate such in writ­ing to [client] with­in two busi­ness days fol­low­ing re­ceipt of all pho­tos.
    3. [Client]’s then-current catalog(s) and any ad­di­tion­al in­for­ma­tion as need to de­tail (pro­duct de­scrip­tion, SKUs, price(s), size(s), color(s), di­men­sions, etc.) all avail­able prod­ucts to be made avail­able for sale on the web­site
  1. Two weeks af­ter re­ceipt of the above ma­te­ri­als, [agen­cy] shall provide to [client] for [client]’s re­view and ap­proval ini­tial site con­cept sketch­es in dig­i­tal for­mat (.PDF). If ini­tial con­cepts fail to meet with client’s ap­proval, [client] and [agen­cy] shall work in­ter­ac­tive­ly to de­vel­op new con­cepts un­til one is ap­proved by [client].
  1. Four weeks af­ter [client] ap­proves con­cept sketch­es, fi­nal de­liv­er­ables (HTML, CSS, SWF, data­base, and re­lat­ed graph­ics) for the ecom­merce por­tion of the site shall be de­liv­ered to [client]’s IT de­part­ment for in­stal­la­tion on [client]’s web­site.

Never put ac­tu­al dates. Always make mile­stones con­tin­gent up­on pre­ced­ing events in a cas­cad­ing rel­a­tive time­line. That way, if the client is two weeks late pro­vid­ing con­tent at mile­stone three, you can’t be held re­spon­si­ble for de­liv­er­ing mile­stone six two weeks lat­er than orig­i­nal­ly in­tend­ed.

A con­tract that in­cludes a sec­tion like the above sets clear ex­pec­ta­tions for your per­for­mance as well as for the client’s. More im­por­tant­ly it shows the client where the re­spon­si­bil­i­ty for keep­ing the project on time is HERS.

The con­tract that gov­erned the four ra­dio sta­tions web­sites project with the com­mu­ni­ca­tions com­pa­ny in­clud­ed mile­stones, but it wasn’t suf­fi­cient to ful­ly com­mu­ni­cate to both par­ties the re­spon­si­bil­i­ties each bore. Since it was our first time work­ing with mul­ti­ple sta­tions (ak­in to nigh-autonomous sub­sidiaries) un­der one um­brel­la we hadn’t ful­ly un­der­stood what to ex­pect in terms of which client de­part­ment would be re­spon­si­ble for de­liv­ery of what con­tent, how the chain of com­mand worked with­in the client’s or­ga­ni­za­tion, and so on. The client hadn’t made it clear to us that we wouldn’t be deal­ing with cor­po­rate li­aisons for each of the de­part­ments, that we had five dif­fer­ent coun­ter­part de­part­ments (four sta­tions plus cor­po­rate) to deal with for each piece we need­ed. Thus the con­tract wasn’t de­tailed enough. It cov­ered who, what, when, and where suf­fi­cient for most or­ga­ni­za­tions, but for this par­tic­u­lar client’s unique struc­ture the con­tract had holes where the minu­tia of what, when, and by whom con­tent was de­liv­ered to us were fuzzy. Of course we didn’t re­al­ize that un­til we were al­ready deep in­to the project.

So get the client to proof the Project Milestones & Materials Delivery Responsibilities sec­tion of the con­tract. Get her to look close­ly at it. Ask her:  Does this fit in­to your sched­ule? If there will be mul­ti­ple de­part­ments and/or li­aisons in­volved in de­liv­er­ing con­tent to me, is this time­line rea­son­able for them? Will it fit in­to their sched­ules? Would you like to run it by those de­part­ments and in­di­vid­u­als for their in­put be­fore we fi­nal­ize the con­tract?

Even with a good client who val­ues your ser­vice and rates, cre­at­ing a rel­a­tive time mile­stone con­tract is a crit­i­cal part of the relationship’s com­mu­ni­ca­tion process. Clients don’t un­der­stand what we do or how we do it–that’s why they hire us–and, there­fore, they don’t un­der­stand how long de­sign tasks take. It’s the designer’s re­spon­si­bil­i­ty to com­mu­ni­cate that to the client in a lan­guage the client un­der­stands. The client can’t plan and sched­ule her re­spon­si­bil­i­ties if we don’t give her the ad­vance no­tice she needs.

Your client prob­a­bly doesn’t un­der­stand what you do and how long it takes you do it. Her ex­pec­ta­tions for project mile­stones might be com­plete­ly dif­fer­ent from your own, re­gard­less of the agreed up­on dead­line. She may not re­al­ize that. As the cre­ative it is your re­spon­si­bil­i­ty to ini­ti­ate the con­ver­sa­tion about project mile­stones and mu­tu­al re­spon­si­bil­i­ties. Show your client the re­spect she de­serves by help­ing her plan for reach­ing her mile­stones and know­ing when to watch for yours.

Work out in ad­vance (in con­tract form) what you and your client ex­pect of one an­oth­er and of your­selves, and when you ex­pect it, and there will be much less room for con­flict over de­lays and missed dead­li­nes. The end re­sult will be a stronger, more en­joy­able re­la­tion­ship.