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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 qual­i­tyindeed, the very exis­tenceof 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 mile­stonesfor both the client and the cre­ativeprob­lems can (prob­a­bly will) occur.

Some projectsfor exam­ple a movie posterare 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 timewith 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 dif­fer­entif the client’s sales depart­ment had been reluc­tant to pro­vide crit­i­cal infor­ma­tion about the need­ed struc­ture of the ad sales and track­ing data­base, for exam­plemy 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 itthat’s why they hire usand, 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.