Business, Contract, Online business
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Protecting WordPress consultancies with terms of business

Let’s take a look at WordPress consultancies

As readers will know, the WordPress marketplace comprises a wide range of business types, including:

  • development and design agencies;
  • theme and plugin shops;
  • website generation platforms;
  • app platforms; and
  • consultancy businesses.

For this post I want to focus on the last of these: WordPress consultancy businesses. These are the sorts of businesses that provide the likes of:

  • commercial advice and coaching in relation to WordPress-related businesses (think Chris Lema);
  • advice and training materials on how to “become an exceptional WordPress consultant” (WP Elevation) or on how to “kickstart your WordPress business” (Matt Report Pro); and
  • WordPress workshop and on-site training services (like BobWP).

These kinds of businesses do not necessarily provide any development or design services (they may do as separate services but that’s not my focus here). Rather, their services are more commercial, strategic or educational in nature.

If you own or work for such a WordPress consultancy, you may have asked yourself about the kind of contractual terms you should be putting in place with your clients to both set expectations and protect your interests. If you haven’t asked this question and are providing consultancy services without any written contract or terms of business, you may be creating undue risk for your business.

This post explains the kinds of issues that WordPress consultancies may wish to consider and provides access to a template letter of engagement and template terms of business for WordPress consultants who either don’t have any or don’t like the ones they’re currently using. The templates are designed for consultancies as I’ve described them above. They are not intended to be used for development and design jobs. I would suggest an alternative contractual form for those sorts of jobs as they involve additional issues.

(I should note, like I often do, that I’m not providing legal or commercial advice to any particular person here. My usual disclaimer applies, to both the content of this post and the templates to which it provides access.)

Issues to bear in mind

Method of contracting

You may wish to consider how you’d like to put a contract in place with your clients. There are various ways of doing so. For example:

  • you could endeavour to have both yourself and your client sign a standard contract (online or offline), with the description of in-scope services, fees etc being set out in a schedule to the contract; or
  • you could create an engagement letter that sets out the in-scope services, fees etc which, together with a set standard terms which are either attached or which can be found at a designated URL on your site, will form the agreement between you and your client.

These are simply different structural means of achieving the same result.

Scope

When agreeing to provide services to a client, it may be important to ensure there isn’t unanticipated scope creep, particularly where the work is being done for a fixed fee (as that would likely reduce your profitability). For this reason it can be important to clearly specify what is in scope and what is out of scope for a particular piece of work. In some cases this will be obvious but in other cases it might not be. Hence the need for care in the documentation you put in place at the outset.

Reliance on and use of deliverables

Depending on the nature of the services you’re providing, it may be important to state that your advice is being given to your client alone and that it cannot be given to or be relied upon by others or published without your prior consent. This wouldn’t be much of an issue when taking a workshop that explains how WordPress works but it could be if you’re providing strategic, commercial advice on, say, a WordPress app development idea or a novel WordPress-related business. In those sorts of cases you may want to ensure that the only liability you have is towards your client and that your advice, if commercially sensitive, doesn’t end up on the Internet.

Your responsibilities to your client

I wouldn’t advocate an agreement or terms of business that are so one-sided that they might turn potential clients away. Except in rare cases (e.g., where there’s only one ‘go to’ person), that may be counter-productive. At the same time, responsibilities and obligations can be drafted in a way that makes them less than absolute. A common example concerns delivery by reference to project time frames. You may wish to say you’ll use your reasonable efforts to meet project time frames as opposed to being obliged – no matter what – to deliver on or before a certain date. The former kinds of clauses are fairly common in web development agreements that favour the developer and they can likewise be included in contracts or terms of business for WordPress consultancy services. Some clients may not accept them, but many will, particularly if you’re one of a handful of ‘go to’ people and, therefore, have negotiating leverage.

Client responsibilities

It can be important to make sure your clients provide you with the information or other resources you need to provide the services they require. It is common to make this a contractual requirement and to add that you won’t be responsible for delays caused by delays on their part.

Confidentiality

If you’re sharing any confidential information with your clients or they’re sharing confidential information with you, it can be important to include provisions that seek to protect that information and regulate its use.

Intellectual property

For many knowledge-based businesses, their intellectual capital is a key resource or asset. Given that a good deal of that intellectual capital is generated ‘on the job’, it can be important to determine who will own new intellectual property (you or the client) and what kind of licence will be granted to the party that doesn’t own it. Usually the key if not only form of new intellectual property will be copyright.

For many services provided by WordPress consultancy businesses, there is unlikely to be a need for the client to own new intellectual property in the deliverables. At the same time, some clients may insist that they own it or, depending on the country in which they live, they may seek to rely on statutory default positions as to copyright ownership. (By ‘statutory default positions’, I mean a position that the law prescribes where the parties have not made an agreement to the contrary.)

It is important to appreciate, however, that the statutory default positions on copyright ownership can differ across countries. They can also differ, under a single country’s laws, depending on the type of copyright work in question and whether a work has been commissioned or is a ‘work made for hire’.

The safest course is to ensure that questions of copyright ownership and licensing are clearly addressed in your governing contract or terms of business.

The linkage between the grant of a copyright licence or (when required) a transfer of copyright, and a client’s payment obligations, can also be important. You may want to ensure that a client won’t obtain ownership or irrevocable licence rights until such time as you’re paid in full for your work. This can be dealt with fairly easily in your contract or terms of business.

Attribution and promotion

If you allow your clients to publish deliverables under your contracts with them, you might want to make sure that you’re attributed as the author. Similarly, you may wish to ensure you’re able to publish the names and logos of your clients on your website as evidence of your clientele or social capital. Both of these things may be valuable to you. If they are, you’ll want to include relevant rights and obligations in your contract or terms of business.

Payment

Getting your payment terms right can be critical to your revenue. You’ll want to make sure that the basis on which you’ll paid, and the timing of payment, are clearly spelled out. If you want to be able to charge for expenses, that should be covered too.

Before I leave the topic of payment, I thought it might help to include a video of a presentation by Mike Monteiro from a San Francisco Creative Mornings session back in 2011, aptly titled “F*ck You. Pay Me.” I remember listening to a 5by5 podcast about it at the time and, perhaps because of its key message (aptly described in the title), it struck a healthy chord and has always stayed with me. Mike and his lawyer make some great points.



Disputes

Thinking about how to handle disputes at the beginning of a job is never particularly palatable but dealing with it in your contract or terms of business may be desirable, bearing in mind that disputes can and do arise. You may, for example, wish to require you and your client to meet in an attempt to resolve the dispute informally and/or to require an attempt at mediation before a party can rush off to court. You may also wish to ensure that disputes are kept confidential (and not aired for the world to see on Twitter or Facebook).

Liability

Limiting your liability for the likes of breach of contract or negligence is an important means of risk mitigation. I suggest you’ll want to cap the level of your financial liability and to exclude liability for certain types of loss. You’ll also probably want to disclaim certain kinds of warranties where it’s possible to do so.

Depending on the law that applies to your contract, it may also be important to remember that, in some countries or states, disclaimers of warranties or exclusions of liability need to be “conspicuous”. For example, in the United States, section 2-316(2) of the Uniform Commercial Code states that a disclaimer of the implied warranty of merchantability must be “conspicuous”. Some lawyers seek to comply with such requirements by putting certain clauses in ALL CAPS. To my eye, whilst that might make a clause look different, it makes it less readable. In this modern day and age, there are better ways of making a clause conspicuous. I like the way Kenneth Adams puts it (Adams is a leading US authority on contract drafting):

“Most drafters use all capitals to emphasize an entire provision, but that guarantees that it will be a chore to read… . And text in all capitals might not even be conspicuous — as the court in American General Finance, Inc., 285 F.3d at 886, noted, ‘Lawyers who think their caps lock keys are instant ‘make conspicuous’ buttons are deluded.’ So unless a statute requires it…, don’t use all capitals to emphasize a provision” (K A Adams A Manual of Style for Contract Drafting, 2nd ed, 2008, para 15.37).

(Adams goes on to discuss preferable means of making a clause conspicuous, such as the use of bold italics or placing a border around a provision.)

Termination

If a contract with your client is going pear-shaped (for example, your client might be making extreme and unreasonable demands of you or it might not be giving you the information you need or it may not be paying you on time), you might want to make sure you can exit. At the same time, you’ll also want to be sure you’re entitled to payment for the work you’ve done up to the time of termination.

Governing law and jurisdiction

If you’re contracting with a client who lives in a different state or country, you may wish to make sure that the contract is governed by the law of your state or country (rather than the client’s) and that your client submits to the jurisdiction of the courts in your state or country.

Template letter of engagement and terms of business

I mentioned above that this post provides access to a template letter of engagement and template terms of business for WordPress consultancies. If you would like a copy of these templates, please enter your name and email address below. The doors to the templates will then open.

To get the template letter of engagement and terms of business, enter your name and email address. You'll be signed up to my mailing list but you can unsubscribe at any time. I hope you find the templates useful.

Voila! You now have access to the templates.

I have tried to design the templates to be user-friendly and succinct. In essence, you:

  • complete the matters that need to be completed in the template letter of engagement;
  • remove all square brackets and drafting instructions from the template letter of engagement;
  • fill in the two highlighted matters in the template Terms of business that are specific to you (the full legal name of your business and the currency of your fees); and
  • replace the illustrative “ConsultPress” logos in both documents with your own logo or branding.

That’s it. You will, of course, want to check that you’re comfortable with all the suggested terms (and if you want to be 100% certain they’re right for you and your circumstances, you may want to have a lawyer in your country review them).

I hope the templates are helpful to those who’d like to use them. If anyone has feedback they’d like to share (perhaps you’d like to see some additional clauses or options added to the templates), please let me know (in either the comments or through my contact form). Happy contracting.

(Featured image: Bloomua / Bigstock.com)

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