5 things to avoid when reviewing design services contracts

As designers we all get excited at the prospect of winning that elusive commission.  We do a few freebies, we knock a little off our fee and we probably show our hand a little too early....But when it comes to actually signing up for the job, I think we're all guilty of not sticking to the basics of a firm, clear and equitable contract.

So, I thought I'd list down what I have seen are the most common mistakes when it comes to being appointed on a design project and what you can do to avoid them:

Mistake No.1: Not sending your standard contract with your bid

All businesses should have standard contracts that have been honed over time.  Terms and Conditions created from lessons learned, the latest regulations and most recent hourly rates should all be sent to any potential client along with your fee proposal.

At the commencement of the design appointment stage, everything is up for negotiations, but if contract terms and conditions are not on the table from the beginning, then it is very difficult to introduce them later.

The other issue with sending out your contract and standard Ts &C's is that IF a client does request you to proceed on the basis of your proposal, then it is a good chance that you will have the upper hand when it comes to negotiating the agreement.  If, heaven forbid, you commence work without a signed contract, at the very least, you will have a copy of your original fee proposal, with your standard contract and Ts & Cs and the client's agreement for you to start work. 

Whilst I'm no lawyer, in some instances in law, being requested to proceed by a client can be taken as tacit acceptance of the contract, provided nothing is stated to the contrary.

Mistake No.2: Starting work without a signed contract

Let me fill you in on a little secret.  Clients want good designer's as badly as we want the job!  It's true.  I've been on the other side of the fence, sitting client side and appointing a design team, and I can tell you one thing for sure: Client's want to appoint good designers.

Rest assured if you've got to the point in negotiations that the client has either verbally or in writing acknowledged your fee proposal and requested you to proceed, it would take an absolute disaster to lose the commission at that stage.  It would certainly take more than requesting a signed contract or at the very least a "letter of acceptance", acknowledging your contract, the sum and your standard Ts & Cs.

Beware of larger clients who suggest that there is an onerous internal process to go through and simply asking you to start.  You'll have spent so much time and money by the time the contract comes back that you'll have no choice but to sign the most onerous of contracts abortive work. 

So hold your line.  At the very least obtain confirmation that your contract will be used and acknowledgement of your Ts & Cs prior to starting.  You'll not regret it later, I assure you.

Mistake No.3: Signing away your intellectual property

We have all undergone study, training and gained valuable experience which moulds us into the designer's we are.  Be sure that in your own contracts that you retain the ownership of your design.  This is very important.

Obviously if a client is paying for our services, then they have the right to use that design.  But we need to be clear in our own contracts or those of others, that the client has the right to use that specific design, on a certainly piece of land.  Client's should not have the right to own our design to replicate it whenever or wherever they deem it appropriate....that is unless they have paid additional funds for such a priviledge.

So try and keep ownership of the intellectual property....you deserve it!

Mistake No.4: Not reading the fine print

Contracts are boring.  My father and brother are both lawyers and they'll tell you the same thing.  They are.  But they are bloody important and woe-be-tide anyone who signs a contract without reading it in full.

The thing about contracts is that they're generally not written by people like you or me.  They're written by people with a mind on what will happen if things go bad and they want to avoid risk.  As such, they are usually heavily weighted towards one party or the other. 

But the trick with all contracts is writing onerous conditions which favour yourself without making appear too one-sided.  And the people writing these types of contracts are master's at them.  That's their job.  So if there's one thing you should do, it's to remember to read all the contract.  Not just the front page and every other page. 

Read each and every single page, and in detail, because you'll find the most onerous conditions buried deep inside the most boring part.

Mistake No.5: Not running it past your insurer

A lot of designer's, architects, engineers and the like are required to have professional indemnity (PI) insurance, as well as public liability insurance and worker's compensation insurance.  If there's one thing you should do if you are using a client's contract is have it run by a representative of the PI insurance company.

I used a few contracts which at first seemed rather innocuous, rather harmless in fact.  So I threw it by our PI insurers just for a quick sanity check.....It came back with more comments than I could have imagined and had I signed it as it was, I would have been signing up for more than I bargained!

So there you have it....five things to avoid when dealing with contracts....it's a boring subject, but one that is so important, it can either make or break a project and even worse a business!  Good luck.....