March 23, 2011 at 19:33How a good contract saves nerves and a coin
Contracts, reports, acts - who wants to deal with this boredom, when the creative life is in full swing and gushing with ideas? Especially if the customer indulgently claps the creative contractor on the shoulder: “Come on, why are there any contracts. My word is the law! ” It remains only to happily agree and get to work.
At the dawn of the existence of our agency, we did not seek to formalize relations with dear customers. The model contract fit on two typewritten sheets. It contained a minimum of information: subject of the contract, terms, price. If there are few customers, and all of them are old acquaintances, then to a certain extent one can rely on their integrity. But when the customer base is actively growing, then the problems multiply: they delay payments, do not fulfill obligations, abuse the loyalty of the contractor. Faced with them in full, we gathered, thought and drafted a new model agreement.
The document was taken as a basis by Lebedev Studio, freely available on the web at the first request in Google. This is a worthy example, suffered by years of practice. Of course, it is not perfect: much of it seems superfluous, there is a cruel bias towards the studio. As someone described him in two the phrase “Hello! First you give us a bag of money and we draw a bit. Then you give us another bag of money, and we will, so be it, give you what we painted! ” In some places it is.
But, having examined it in cooperation with our legal service, we took the best from it and supplemented it with our own “suffering”. Each section of the contract is full of meaning.
It is known that scientists in any dispute first agree on an unambiguous understanding of the terms. If the partner and I do the same, then we can avoid any disputes altogether: in order to prevent a double interpretation of professional terms, it is very important to decipher them in the contract itself. This is a common legal practice. Definitions of words can be taken from any sources, for example, from Wikipedia or dictionaries, the main thing is that they correctly reflect the essence of the work performed.
Differences in the definition of such a common concept as “design concept” are fraught with loss of time and overwork. This was in our practice: a client by a design concept was understood as already working in a browser, made up in HTML layout, where you can already click on links. The customer representative referred to the experience of working with another studio, which showed a layout, and demanded the same from us.
After a diplomatic but persistent clarification of the “concepts,” a separate addendum to the treaty was signed. It, in particular, clarified that the "design concept of the site" is presented in the form of a non-interactive graphic file.
The most substantive part of the contract, describing the essence of cooperation: what the contractor undertakes to do and in what time frame. If you wish, you can break the work into stages and each negotiate separately. Today, the form of a master contract is popular, which is used for long-term cooperation or in the case of a complex project with many works. Then it is more convenient to sign one general contract, and to document the parameters of specific work in the form of annexes to it. So the approval of documents will take less time.
In the case of a framework agreement, the clause “Subject and terms” reads: “The Contractor assumes obligations to provide advertising services, develop creative concepts, design advertising and printing materials. Details of services are carried out in the Appendices to this Agreement, which are an integral part of this Agreement. ”
After the successful completion of one or two projects, the client expresses a desire to work with us constantly. But each time about a week of net time is spent on agreeing a contract in the client’s legal service. To avoid delays, we offer the client, and sometimes he, to us, conclude a framework agreement. The advantage of such an agreement is precisely in the quick coordination of details with a large number of different works. The downside is that if you need to make changes to the main contract, you will have to go through all the approval procedures again.
Here are the obligations and rights of the client and the agency with respect to each other. The contractor is obliged to carry out the work efficiently and on time, and the customer is obliged to timely receive the result and pay for it. In addition, the customer must provide all source materials in a timely manner, and the contractor must disclose information on the progress of work and provide the client with access to the result. Everything is standard and similar to the template norms enshrined in the Civil Code of the Russian Federation, except for one important point - “responsible person”. Here is the name of the person who will be responsible for the project on the part of the customer. The goal is simple: to limit intervention in the workflow of third parties. Of course, no one bothers the customer to convene the entire board of directors every day for a four-hour meeting on your project, but you have every right to resolve all issues with one person, endowed with all powers in accordance with the specified paragraph. This insures against the activity of a dozen managers who are "also tasked with running this project."
It happens this way: one manager began to lead the project, and another continues - for objective reasons, for example, the first resigned. What to do in such cases? Everything is simple: fill out this fact with an additional agreement to the contract.
Once our client ignored this clause of the contract and brought new people to each meeting who expressed their opinion on the project. We did not begin to point out the contract to the client, leaving it as the last argument, but simply gently said something like this: “If you think that the opinions of all these people are very important for the project, let's put them fully up to date and start work again. In the meantime, their intervention only slows down the progress of work, which creates inconvenience for us and for you. " Customer agreed with our position.
A very important point in which the price of work is fixed, if necessary, divided into stages, as well as the calculation procedure: how and in what time period the result is paid. Previously, we adhered to the scheme "100% or 50% prepayment." Now we divide the work into clear steps, each with full prepayment. This is a very convenient scheme: it allows you to more flexibly reserve the time of the studio employees and virtually eliminates the inhibition of work due to the fault of customers. The agency receives an advance payment for the stage and completely fulfills it, and if the customer is not ready to proceed to the next step, then he does not pay for it, and we are switching to other work.
In the general case, for example, when creating an advertising campaign, the steps are as follows:
The most important point, for which, in fact, such a long contract is needed. Here, the processes of statements and alterations are specified in detail. In particular, the deadline for approving the results of work or interim results is determined. We quote this paragraph in full: “At the end of the work, the Contractor forwards the result of the work to the Customer, and within three working days from the date of receipt, the Customer agrees to accept the work (by signing the Work Acceptance Certificate) or send the Contractor a reasoned written refusal of acceptance, indicating on the need to refine the layouts. A reasoned refusal must contain a list of discrepancies of the work performed to the Brief (Appendix to this Agreement) or the terms of this Agreement or Appendices. ”
Please note that when accepting work, a separate document must be signed - an acceptance certificate or a reasoned refusal signed by the customer. If one or the second document is missing, the work is accepted, and then the agency gets the opportunity to file a lawsuit in case the customer does not pay the due part of the payment. One subtlety remains: it is necessary to fix the fact of sending the finished product to the client.
The "basic" way: to transfer the work in person, with a courier or manager, and upon delivery, require a signature that documents or files have been received. Although this method does not guarantee protection against any problems: the files could not be written to the disk or the wrong thumbnails were sent to the customer.
The best way: send the work by e-mail or by courier, just in case, duplicate by regular mail, "paper", on the same day. The first is easy and fast, and the second will help if you need to prove the fact of sending and delivery of the shipment.
Of course, fixing literally every “sneeze” is a dreary task, but when unpleasant situations arise, painful conflicts can be avoided.
We heard a wild story from my colleagues. After long delays with payments, the client suddenly began to assert that, they say, there were no files on the disk, there was nothing to pay for. Since the project was not yet completed, and the second stage was in progress, the agency returned a part of the prepayment and terminated all relations with the customer.
This section, in particular, regulates the actions of the contractor in case the customer delays the provision of raw materials. In response, the contractor may increase the deadlines for the work, change the terms of payment, terminate the contract or resort to other agreed measures of influence on the careless client. Of course, all agreements reached must be drawn up as an additional agreement to the agreement and signed by both parties.
The section also describes the mutual responsibility of the parties in case of copyright infringement of third parties. However, we will talk about intellectual property in more detail below.
In general, the section complies with the general provisions of civil law, so we will not dwell on it in detail.
The contract is valid until the parties fulfill their obligations to the end or are terminated on their initiative. This is accepted by default. But it can be important to clarify that the paragraph on maintaining trade secrets under the project is valid indefinitely — even after the termination of the entire contract. This applies to provisions relating to intellectual property and materials exchanged between the parties.
Special in this section is the following provision: if the contract is suddenly terminated at the initiative of the customer or as a result of non-fulfillment of his duties, then the advance payment is not returned to him in order to compensate for the losses incurred by the agency.
The last point may seem controversial, especially from the point of view of the customer: since it was decided to curtail the work before the appearance of the final product, there is nothing to pay for. Studios, on the contrary, want to get paid for unfinished work as for full.
Truth, as usual, is somewhere in between. There will be a fair scheme in which each stage is divided into working days, and the advance payment is returned for those days that remained until the deadline at the time of termination of the contract. Yes, the studio in this case is experiencing some inconvenience. But according to the law, only actual expenses incurred should be paid, and not the fact of reserving team working time. This is what Article 717 of the Civil Code of the Russian Federation speaks of: in the contract it is possible to provide, in addition to paying the cost of the work itself, the costs of purchased but not used materials, services of models and third-party contractors.
The work on creating advertising was divided into three stages:
1. development of the concept (10 working days),
2. final visualization of the selected concept (15 working days). It implied shooting with a selection of models, with rental items and premises, retouching shots and layout layout,
3. adaptation of the layout for different formats and sizes of modules. According to the contract, the client paid each stage with a prepayment of 100%.
The client decided to curtail work immediately after the shooting, on the fifth day of work in the second stage. We have not yet begun retouching and layout, and the client needed to return the prepayment for the remaining ten days. But we have already incurred expenses for paying for the work of models, renting a studio and objects in the frame. The prepayment was refunded to the client minus the cost of five days of work and the indicated additional costs.
Some of our colleagues stipulate in their contracts that 70% of the prepayment will not be returned to the client in any case, even if he refused to work on the project the next day after payment. This is a kind of compensation for reserving a team for a certain period. Logic, of course, is in this. But such a condition is justified if the agency’s work schedule is very tight, and any inconsistencies with one client may affect others. This is not just a demand for "supreme justice." In the event of a trial, one will have to convincingly justify the “irrevocable” amount - what expenses, losses or lost profits the studio incurred.
You can also note the point on the place of the trial in case of the most unpleasant completion of cooperation. We recommend that you indicate the closest arbitration court to your place of consideration. This will change the general rules of jurisdiction, enshrined in the Arbitration Procedure Code, and will save on travel to a foreign city.
For some time, our standard contract did not regulate copyright issues in any way, but little by little, point by point, we began to include relevant provisions in it. By and large, there are two of them: one concerns the duties of the customer, the other - the contractor.
The customer is obliged to provide source materials that are completely free from claims of third parties. And if the source code still turned out to be "unclean", then the customer is responsible for this. What kind of materials are transferred is recorded in the deed of transfer. Do not forget that any movement of information in both directions should be reflected in the documents.
The Contractor, in turn, guarantees that everything done by him on the project is also not encumbered by any copyright. And with responsibility in this sense it is similar: if the authorship of the final work is in doubt, then the agency bears full responsibility for this.
In addition, the contract determines the scope of rights transferred to the client at the end of the project. Of course, all rights are transferred only upon signing the acceptance certificate. As a rule, all methods of broadcasting advertising are available to the client: by cable, on air, publishing in print media and the Internet. The client is prohibited from changing the design of the site and decompiling the code of the site and any received software products.
The contract specifically specifies that for any use of the finished work, such as a site, the client is required to save the signature of the artist on it: a logo with a hyperlink on the first page. The agency, in turn, gains the right to use the customer’s name in the portfolio.
Some, usually very large, clients insist on signing a special annex to the contract - “non-disclosure agreements”. It came to us from a Western practice called the NDA (Non-Disclosure Agreement). It states that the studio does not have the right to publish the result of the work for a certain period of time or even indefinitely. This is due to the client’s unwillingness to share the popularity of their brand with someone and to disclose information about their contractors to competitors. It is fair that the cost of the project increases upon signing the NDA.
In our practice, there have been two cases when, without signing any NDA, the client suddenly began to insist on the removal of any press releases about the project. In one case, he managed to convince him not to do this: it is impossible to remove materials already posted in the media, and if it happens, it can damage the reputation of both the studio and the client. In another case, the client took the wrong steps without agreement with us, which, in his opinion, should have resolved the situation. The head of the marketing department went to the news site and left an unpleasant comment under the material about the project. After that, we did not conduct any negotiations with the client, everything was left as it is.
It will be fair to supplement the protection of intellectual property with some nuances of relations between the contractor and the customer. For example, do not allow the client to use the finished materials “for other purposes”. Say, pictures drawn for a site cannot be used in a company booklet or in advertising.
It happens that a client, without the knowledge of the agency, arbitrarily changes something in an already accepted job. This can happen because a new project manager has come to the client, who, in his opinion, knows better how to make sites and design. Or the client himself talked with his wife or friends, and it was decided to repaint the logo to the color of the wallpaper in the bedroom. To deal with this is almost impossible, alas. Perhaps the only thing that can be done is to ask with dignity to remove your signature from work. This can be specified in the contract as a separate clause.
In our agency, this happened several times. In the case of sites, everything was solved as standard: we called and asked the client to remove our logo. Sometimes the client wondered why? A delicate explanation of the situation followed: “the changes made by you or your new contractors, in our opinion, do not correspond to the quality of our work. Our logo can mislead visitors and damage our reputation. ” In all cases, the client agreed to remove the signature.
Once there was an unauthorized change by the client (public authority) of the logo. The calls didn’t give anything (“our boss knows better, it was his son who drew the leaves!”), And we removed the work from our portfolio and deleted references to it on the network as much as possible.
Of course, not every client is used to the fact that the contractor offers him to use his own, not the most standard and concise form of the contract. Claims to the document often arise: customers are surprised at the contractor’s meticulousness and express dissatisfaction with specific clauses of the contract.
The clause stating that the customer is obliged, within three working days, to either accept the work or provide a reasoned refusal, otherwise the work will automatically be considered accepted. Customers do not like that someone has decided to limit their time for reflection. Therefore, they ask to completely remove this item. As a rule, we don’t make a total exception, but we offer a compromise: increase the term to 5 or even 7 working days.
Often the client does not fit into these deadlines. Usually we wait patiently. When it takes too long, two weeks or more, to wait for an answer to each change in the layout, we first gently remind him of the timing, then we ask for a meeting with the management. We explain that the overly leisurely reaction of the client is harmful to our common cause, and we remind that the client always has the right to refuse to work with us if something does not suit him.
The clause is that if the customer himself does not comply with the terms of the response or writes unreasonable refusals, this deprives him of the right to refer to the court in violation of the deadlines by the studio. Often there is a request to remove this item: the customer’s lawyers are scared that they are being deprived of something.
Responsibility of the client regarding copyrights to the materials provided by him. Here we honestly explain that even removing this clause from the contract, we will not help him: the responsibility for violation of the rights of third parties will remain with the supplier of materials. And the clause of the contract is designed to once again remind the customer of caution.
Such a complex contract has as its primary goal not to help in court, but rather to additionally insure against the most unpleasant - litigation. However, there is another stage between the occurrence of disagreements and the trial - the pre-trial (claim) procedure for resolving disputes.
If one of the parties violates the contract, the other must send a written complaint to it with a request to eliminate the violation: provide the necessary materials, respond to the sent request or pay the due. It is usually understood that a response to a claim must follow within one calendar month. If during this time the violation has not been eliminated, then you can go to court.
The claim procedure may not be provided for by the contract, in which case the parties meet immediately in court. However, we recommend that you include it in the contract - no one will be bothered by an additional airbag.
When one of the clients delayed payment for a month without answering calls, and in the end said: “Don’t call me again when there is money, then I’ll pay, okay ?!”, we really didn’t call him again, but sent written claim. The text was something like this: “Then the parties entered into such and such an agreement, which stated that when the contractor finishes work, the client is obliged to pay for it. The work was completed on such and such a date that it was fixed by mail, as well as by the act of acceptance of work. According to the contract, the customer was obliged to pay the remaining part within three business days from the date of completion of work, but did not do so. We demand to pay the remaining part of the fee by such a date (the one-month period from the day the claim was sent to the client is indicated),
The claim took effect: two days later, money arrived in our account.
Everything that the parties agree before the start of work or in its process should be made out as annexes to the contract: briefs, technical specifications for sites, a detailed list of work, changes in prices or terms of the project. The annexes to the framework agreements should generally contain the specifics that are not included in the “parent” agreement: subject, term, price, and other nuances of work.
If living models participate in the project, then a special agreement is signed with them, in which the model agrees to use its image for commercial purposes. So the law requires - Art. 152.1 of the Civil Code of the Russian Federation. The model refuses any claims, as well as the right to distribute the material provided to it, if, for example, the source of the photo shoot is handed over to her as a bonus. This is useful so that the pictures taken for a large project do not begin to leak into various social networks "on avatars".
The agency, in turn, guarantees that the material with the model will not go to other commercial projects. That would be dishonest. Agreements with models are not transferred to the client, but remain with the contractor.
Is it difficult for the agency to adhere to such a complex document? At first, yes. But it’s like organizing some complex, but very powerful system: it’s enough to set it up once to make your life easier for a long time. Stocking up evidence for the court is not the main goal of all legal stringencies in working with the customer. Another function of the contract is much more important - to discipline, not only the customer, but also himself.
A detailed contract with a clearly defined order of work, as a constant silent reminder of composure and discipline, teaches both parties to be polite, to value each other's time. But the most important thing: it helps to create talented, creative and effective projects that will delight both the studio and its happy clients for a long time to come.
UPD: Actually, our contract is -http://cl.ly/5SQL . There is a 50x50 payment.
I remind you that the Lebedev Studio contract template is taken as the basis , and if you want to sort out the rather complicated source yourself, then the welk.
At the dawn of the existence of our agency, we did not seek to formalize relations with dear customers. The model contract fit on two typewritten sheets. It contained a minimum of information: subject of the contract, terms, price. If there are few customers, and all of them are old acquaintances, then to a certain extent one can rely on their integrity. But when the customer base is actively growing, then the problems multiply: they delay payments, do not fulfill obligations, abuse the loyalty of the contractor. Faced with them in full, we gathered, thought and drafted a new model agreement.
The document was taken as a basis by Lebedev Studio, freely available on the web at the first request in Google. This is a worthy example, suffered by years of practice. Of course, it is not perfect: much of it seems superfluous, there is a cruel bias towards the studio. As someone described him in two the phrase “Hello! First you give us a bag of money and we draw a bit. Then you give us another bag of money, and we will, so be it, give you what we painted! ” In some places it is.
But, having examined it in cooperation with our legal service, we took the best from it and supplemented it with our own “suffering”. Each section of the contract is full of meaning.
We play like a scientist
It is known that scientists in any dispute first agree on an unambiguous understanding of the terms. If the partner and I do the same, then we can avoid any disputes altogether: in order to prevent a double interpretation of professional terms, it is very important to decipher them in the contract itself. This is a common legal practice. Definitions of words can be taken from any sources, for example, from Wikipedia or dictionaries, the main thing is that they correctly reflect the essence of the work performed.
Practice:
Differences in the definition of such a common concept as “design concept” are fraught with loss of time and overwork. This was in our practice: a client by a design concept was understood as already working in a browser, made up in HTML layout, where you can already click on links. The customer representative referred to the experience of working with another studio, which showed a layout, and demanded the same from us.
After a diplomatic but persistent clarification of the “concepts,” a separate addendum to the treaty was signed. It, in particular, clarified that the "design concept of the site" is presented in the form of a non-interactive graphic file.
§: Subject and terms
The most substantive part of the contract, describing the essence of cooperation: what the contractor undertakes to do and in what time frame. If you wish, you can break the work into stages and each negotiate separately. Today, the form of a master contract is popular, which is used for long-term cooperation or in the case of a complex project with many works. Then it is more convenient to sign one general contract, and to document the parameters of specific work in the form of annexes to it. So the approval of documents will take less time.
In the case of a framework agreement, the clause “Subject and terms” reads: “The Contractor assumes obligations to provide advertising services, develop creative concepts, design advertising and printing materials. Details of services are carried out in the Appendices to this Agreement, which are an integral part of this Agreement. ”
Practice:
After the successful completion of one or two projects, the client expresses a desire to work with us constantly. But each time about a week of net time is spent on agreeing a contract in the client’s legal service. To avoid delays, we offer the client, and sometimes he, to us, conclude a framework agreement. The advantage of such an agreement is precisely in the quick coordination of details with a large number of different works. The downside is that if you need to make changes to the main contract, you will have to go through all the approval procedures again.
§: Rights and obligations
Here are the obligations and rights of the client and the agency with respect to each other. The contractor is obliged to carry out the work efficiently and on time, and the customer is obliged to timely receive the result and pay for it. In addition, the customer must provide all source materials in a timely manner, and the contractor must disclose information on the progress of work and provide the client with access to the result. Everything is standard and similar to the template norms enshrined in the Civil Code of the Russian Federation, except for one important point - “responsible person”. Here is the name of the person who will be responsible for the project on the part of the customer. The goal is simple: to limit intervention in the workflow of third parties. Of course, no one bothers the customer to convene the entire board of directors every day for a four-hour meeting on your project, but you have every right to resolve all issues with one person, endowed with all powers in accordance with the specified paragraph. This insures against the activity of a dozen managers who are "also tasked with running this project."
It happens this way: one manager began to lead the project, and another continues - for objective reasons, for example, the first resigned. What to do in such cases? Everything is simple: fill out this fact with an additional agreement to the contract.
Practice:
Once our client ignored this clause of the contract and brought new people to each meeting who expressed their opinion on the project. We did not begin to point out the contract to the client, leaving it as the last argument, but simply gently said something like this: “If you think that the opinions of all these people are very important for the project, let's put them fully up to date and start work again. In the meantime, their intervention only slows down the progress of work, which creates inconvenience for us and for you. " Customer agreed with our position.
§: Settlement procedure
A very important point in which the price of work is fixed, if necessary, divided into stages, as well as the calculation procedure: how and in what time period the result is paid. Previously, we adhered to the scheme "100% or 50% prepayment." Now we divide the work into clear steps, each with full prepayment. This is a very convenient scheme: it allows you to more flexibly reserve the time of the studio employees and virtually eliminates the inhibition of work due to the fault of customers. The agency receives an advance payment for the stage and completely fulfills it, and if the customer is not ready to proceed to the next step, then he does not pay for it, and we are switching to other work.
In the general case, for example, when creating an advertising campaign, the steps are as follows:
- concept development and preparation of its presentation in the form of a text description and sketches,
- final visualization of the approved concept,
- layout of advertising modules for various advertising channels.
§: Acceptance of work
The most important point, for which, in fact, such a long contract is needed. Here, the processes of statements and alterations are specified in detail. In particular, the deadline for approving the results of work or interim results is determined. We quote this paragraph in full: “At the end of the work, the Contractor forwards the result of the work to the Customer, and within three working days from the date of receipt, the Customer agrees to accept the work (by signing the Work Acceptance Certificate) or send the Contractor a reasoned written refusal of acceptance, indicating on the need to refine the layouts. A reasoned refusal must contain a list of discrepancies of the work performed to the Brief (Appendix to this Agreement) or the terms of this Agreement or Appendices. ”
Please note that when accepting work, a separate document must be signed - an acceptance certificate or a reasoned refusal signed by the customer. If one or the second document is missing, the work is accepted, and then the agency gets the opportunity to file a lawsuit in case the customer does not pay the due part of the payment. One subtlety remains: it is necessary to fix the fact of sending the finished product to the client.
The "basic" way: to transfer the work in person, with a courier or manager, and upon delivery, require a signature that documents or files have been received. Although this method does not guarantee protection against any problems: the files could not be written to the disk or the wrong thumbnails were sent to the customer.
The best way: send the work by e-mail or by courier, just in case, duplicate by regular mail, "paper", on the same day. The first is easy and fast, and the second will help if you need to prove the fact of sending and delivery of the shipment.
Of course, fixing literally every “sneeze” is a dreary task, but when unpleasant situations arise, painful conflicts can be avoided.
Practice:
We heard a wild story from my colleagues. After long delays with payments, the client suddenly began to assert that, they say, there were no files on the disk, there was nothing to pay for. Since the project was not yet completed, and the second stage was in progress, the agency returned a part of the prepayment and terminated all relations with the customer.
§: Liability and warranties
This section, in particular, regulates the actions of the contractor in case the customer delays the provision of raw materials. In response, the contractor may increase the deadlines for the work, change the terms of payment, terminate the contract or resort to other agreed measures of influence on the careless client. Of course, all agreements reached must be drawn up as an additional agreement to the agreement and signed by both parties.
The section also describes the mutual responsibility of the parties in case of copyright infringement of third parties. However, we will talk about intellectual property in more detail below.
§: Force Majeure
In general, the section complies with the general provisions of civil law, so we will not dwell on it in detail.
§: Duration and termination
The contract is valid until the parties fulfill their obligations to the end or are terminated on their initiative. This is accepted by default. But it can be important to clarify that the paragraph on maintaining trade secrets under the project is valid indefinitely — even after the termination of the entire contract. This applies to provisions relating to intellectual property and materials exchanged between the parties.
Special in this section is the following provision: if the contract is suddenly terminated at the initiative of the customer or as a result of non-fulfillment of his duties, then the advance payment is not returned to him in order to compensate for the losses incurred by the agency.
The last point may seem controversial, especially from the point of view of the customer: since it was decided to curtail the work before the appearance of the final product, there is nothing to pay for. Studios, on the contrary, want to get paid for unfinished work as for full.
Truth, as usual, is somewhere in between. There will be a fair scheme in which each stage is divided into working days, and the advance payment is returned for those days that remained until the deadline at the time of termination of the contract. Yes, the studio in this case is experiencing some inconvenience. But according to the law, only actual expenses incurred should be paid, and not the fact of reserving team working time. This is what Article 717 of the Civil Code of the Russian Federation speaks of: in the contract it is possible to provide, in addition to paying the cost of the work itself, the costs of purchased but not used materials, services of models and third-party contractors.
Practice:
The work on creating advertising was divided into three stages:
1. development of the concept (10 working days),
2. final visualization of the selected concept (15 working days). It implied shooting with a selection of models, with rental items and premises, retouching shots and layout layout,
3. adaptation of the layout for different formats and sizes of modules. According to the contract, the client paid each stage with a prepayment of 100%.
The client decided to curtail work immediately after the shooting, on the fifth day of work in the second stage. We have not yet begun retouching and layout, and the client needed to return the prepayment for the remaining ten days. But we have already incurred expenses for paying for the work of models, renting a studio and objects in the frame. The prepayment was refunded to the client minus the cost of five days of work and the indicated additional costs.
What can complicate settlements with the customer in court
Some of our colleagues stipulate in their contracts that 70% of the prepayment will not be returned to the client in any case, even if he refused to work on the project the next day after payment. This is a kind of compensation for reserving a team for a certain period. Logic, of course, is in this. But such a condition is justified if the agency’s work schedule is very tight, and any inconsistencies with one client may affect others. This is not just a demand for "supreme justice." In the event of a trial, one will have to convincingly justify the “irrevocable” amount - what expenses, losses or lost profits the studio incurred.
You can also note the point on the place of the trial in case of the most unpleasant completion of cooperation. We recommend that you indicate the closest arbitration court to your place of consideration. This will change the general rules of jurisdiction, enshrined in the Arbitration Procedure Code, and will save on travel to a foreign city.
§: Intellectual property
For some time, our standard contract did not regulate copyright issues in any way, but little by little, point by point, we began to include relevant provisions in it. By and large, there are two of them: one concerns the duties of the customer, the other - the contractor.
The customer is obliged to provide source materials that are completely free from claims of third parties. And if the source code still turned out to be "unclean", then the customer is responsible for this. What kind of materials are transferred is recorded in the deed of transfer. Do not forget that any movement of information in both directions should be reflected in the documents.
The Contractor, in turn, guarantees that everything done by him on the project is also not encumbered by any copyright. And with responsibility in this sense it is similar: if the authorship of the final work is in doubt, then the agency bears full responsibility for this.
In addition, the contract determines the scope of rights transferred to the client at the end of the project. Of course, all rights are transferred only upon signing the acceptance certificate. As a rule, all methods of broadcasting advertising are available to the client: by cable, on air, publishing in print media and the Internet. The client is prohibited from changing the design of the site and decompiling the code of the site and any received software products.
The contract specifically specifies that for any use of the finished work, such as a site, the client is required to save the signature of the artist on it: a logo with a hyperlink on the first page. The agency, in turn, gains the right to use the customer’s name in the portfolio.
Practice:
Some, usually very large, clients insist on signing a special annex to the contract - “non-disclosure agreements”. It came to us from a Western practice called the NDA (Non-Disclosure Agreement). It states that the studio does not have the right to publish the result of the work for a certain period of time or even indefinitely. This is due to the client’s unwillingness to share the popularity of their brand with someone and to disclose information about their contractors to competitors. It is fair that the cost of the project increases upon signing the NDA.
In our practice, there have been two cases when, without signing any NDA, the client suddenly began to insist on the removal of any press releases about the project. In one case, he managed to convince him not to do this: it is impossible to remove materials already posted in the media, and if it happens, it can damage the reputation of both the studio and the client. In another case, the client took the wrong steps without agreement with us, which, in his opinion, should have resolved the situation. The head of the marketing department went to the news site and left an unpleasant comment under the material about the project. After that, we did not conduct any negotiations with the client, everything was left as it is.
No need for amateur performances
It will be fair to supplement the protection of intellectual property with some nuances of relations between the contractor and the customer. For example, do not allow the client to use the finished materials “for other purposes”. Say, pictures drawn for a site cannot be used in a company booklet or in advertising.
It happens that a client, without the knowledge of the agency, arbitrarily changes something in an already accepted job. This can happen because a new project manager has come to the client, who, in his opinion, knows better how to make sites and design. Or the client himself talked with his wife or friends, and it was decided to repaint the logo to the color of the wallpaper in the bedroom. To deal with this is almost impossible, alas. Perhaps the only thing that can be done is to ask with dignity to remove your signature from work. This can be specified in the contract as a separate clause.
Practice:
In our agency, this happened several times. In the case of sites, everything was solved as standard: we called and asked the client to remove our logo. Sometimes the client wondered why? A delicate explanation of the situation followed: “the changes made by you or your new contractors, in our opinion, do not correspond to the quality of our work. Our logo can mislead visitors and damage our reputation. ” In all cases, the client agreed to remove the signature.
Once there was an unauthorized change by the client (public authority) of the logo. The calls didn’t give anything (“our boss knows better, it was his son who drew the leaves!”), And we removed the work from our portfolio and deleted references to it on the network as much as possible.
What does the client most often argue with
Of course, not every client is used to the fact that the contractor offers him to use his own, not the most standard and concise form of the contract. Claims to the document often arise: customers are surprised at the contractor’s meticulousness and express dissatisfaction with specific clauses of the contract.
Leaders in the appearance of disagreements in the protocol.
The clause stating that the customer is obliged, within three working days, to either accept the work or provide a reasoned refusal, otherwise the work will automatically be considered accepted. Customers do not like that someone has decided to limit their time for reflection. Therefore, they ask to completely remove this item. As a rule, we don’t make a total exception, but we offer a compromise: increase the term to 5 or even 7 working days.
Often the client does not fit into these deadlines. Usually we wait patiently. When it takes too long, two weeks or more, to wait for an answer to each change in the layout, we first gently remind him of the timing, then we ask for a meeting with the management. We explain that the overly leisurely reaction of the client is harmful to our common cause, and we remind that the client always has the right to refuse to work with us if something does not suit him.
The clause is that if the customer himself does not comply with the terms of the response or writes unreasonable refusals, this deprives him of the right to refer to the court in violation of the deadlines by the studio. Often there is a request to remove this item: the customer’s lawyers are scared that they are being deprived of something.
Responsibility of the client regarding copyrights to the materials provided by him. Here we honestly explain that even removing this clause from the contract, we will not help him: the responsibility for violation of the rights of third parties will remain with the supplier of materials. And the clause of the contract is designed to once again remind the customer of caution.
Pre-trial dispute resolution
Such a complex contract has as its primary goal not to help in court, but rather to additionally insure against the most unpleasant - litigation. However, there is another stage between the occurrence of disagreements and the trial - the pre-trial (claim) procedure for resolving disputes.
If one of the parties violates the contract, the other must send a written complaint to it with a request to eliminate the violation: provide the necessary materials, respond to the sent request or pay the due. It is usually understood that a response to a claim must follow within one calendar month. If during this time the violation has not been eliminated, then you can go to court.
The claim procedure may not be provided for by the contract, in which case the parties meet immediately in court. However, we recommend that you include it in the contract - no one will be bothered by an additional airbag.
Practice:
When one of the clients delayed payment for a month without answering calls, and in the end said: “Don’t call me again when there is money, then I’ll pay, okay ?!”, we really didn’t call him again, but sent written claim. The text was something like this: “Then the parties entered into such and such an agreement, which stated that when the contractor finishes work, the client is obliged to pay for it. The work was completed on such and such a date that it was fixed by mail, as well as by the act of acceptance of work. According to the contract, the customer was obliged to pay the remaining part within three business days from the date of completion of work, but did not do so. We demand to pay the remaining part of the fee by such a date (the one-month period from the day the claim was sent to the client is indicated),
The claim took effect: two days later, money arrived in our account.
What are the applications
Everything that the parties agree before the start of work or in its process should be made out as annexes to the contract: briefs, technical specifications for sites, a detailed list of work, changes in prices or terms of the project. The annexes to the framework agreements should generally contain the specifics that are not included in the “parent” agreement: subject, term, price, and other nuances of work.
If living models participate in the project, then a special agreement is signed with them, in which the model agrees to use its image for commercial purposes. So the law requires - Art. 152.1 of the Civil Code of the Russian Federation. The model refuses any claims, as well as the right to distribute the material provided to it, if, for example, the source of the photo shoot is handed over to her as a bonus. This is useful so that the pictures taken for a large project do not begin to leak into various social networks "on avatars".
The agency, in turn, guarantees that the material with the model will not go to other commercial projects. That would be dishonest. Agreements with models are not transferred to the client, but remain with the contractor.
About the benefits of bureaucracy
Is it difficult for the agency to adhere to such a complex document? At first, yes. But it’s like organizing some complex, but very powerful system: it’s enough to set it up once to make your life easier for a long time. Stocking up evidence for the court is not the main goal of all legal stringencies in working with the customer. Another function of the contract is much more important - to discipline, not only the customer, but also himself.
A detailed contract with a clearly defined order of work, as a constant silent reminder of composure and discipline, teaches both parties to be polite, to value each other's time. But the most important thing: it helps to create talented, creative and effective projects that will delight both the studio and its happy clients for a long time to come.
UPD: Actually, our contract is -http://cl.ly/5SQL . There is a 50x50 payment.
I remind you that the Lebedev Studio contract template is taken as the basis , and if you want to sort out the rather complicated source yourself, then the welk.