eCommerce Tycoon

**vkw91** · 07-24-2007, 07:04 AM

Recently, i had a small run-in with an outsourcer, who refused to sign an agreement which simply said that he would not run away with my designs. The reason why i wanted him to sign this was because I had no history with working with him in the past. In effect he was a complete stranger.

The agreement is; http://www.vkw91.co.uk/outsourcerscopyright.html

The reason they gave for not signing it was;

"We are firm believers in more simple methods of business.
If you start to add legal documents and transferring of rights
it all becomes different to the way we do business here"

To me, this screams out that i couldn't trust this company, but do you think my agreement is unreasonable? It pretty much states the same as when you enter contest such as on sitepoint.

**ADAM Web Design** · 07-24-2007, 11:09 AM

Hi Vicky,

If I'm reading it the way I think I am (which is that you're the designer being hired, rather than the one doing the hiring), this isn't unreasonable. However, it is unenforceable in certain jurisdictions (e.g. Ontario).

In Ontario, the intellectual property for a project belongs to whomever commissioned it in the first place, and whether or not it is ever paid for means nothing (which puts way too much power in the hands of the buyer IMHO but there's not much that can be done about it, save for going through the court system.)

About the only thing you can do is to ask for an upfront deposit which is big enough for you to feel confident in the customer, but small enough for the customer to feel confident in you (I usually say 10%). Accepting payments in stages also helps both parties to gain trust and a working relationship.

Alternatively, watermarking a design can give you some protection as well.

You're right to want to protect yourself...it's just that the way you're doing it isn't legally binding in all jurisdictions (not your fault, though.)

**hamesy** · 07-24-2007, 11:33 AM

I don't see anything wrong with your agreement Vicky. Maybe you can do what Adam suggested and ask for a small deposit up front?

**vkw91** · 07-24-2007, 12:26 PM

Hi, thanks for the reply.
In terms of the desposit, i asked him this when we had the disagreement and he said no. Also he stated that he would not accept watermarked designs to give to his clients. - this is how i came to giving him the agreement as many other outsourcers also do not want marked versions, but were happy to sign the agreement.

**hamesy** · 07-24-2007, 12:35 PM

Well he's not signing the agreement, paying a small deposit or accepting watermarked designs I would stay clear from him. Have you asked why he doesn't want to do these?

**ADAM Web Design** · 07-24-2007, 02:14 PM

I'm with hamesy here, vicky. Given all of the "no"s you're running into, this sounds scammish. If your outsourcer won't agree to any of those terms, then you're going to run into a lot more difficulty down the road. Stay clear.

**ExpertForumGuy** · 07-25-2007, 08:23 PM

hey this is the internet!
There are so many crooks out there, so it's always best to protect yourself as much as possible.

Everybody wants their "cyber-dollar", so it's wise to protect yourself.

You did the right thing, and you should keep doing it in the future.

**NateL** · 09:33 PM

Perhaps you should cut your losses and move forward. Contracts are not "my way or the highway" deals...they're written to protect both parties. If this gentleman doesn't understand that you're trying to protect both parties, then in my opinion, it would probably be a wise decision to kindly tell him that you will be moving on to your next client.

I also believe that your wording may be a little harsh towards whomever is reading it. It's basically saying, if you screw me, i'm really going to screw you...and then some.

Here's a snippet from a contract I found in a really good book "How to start a home-based web design business":

Copyright to the finished, assembled work of Web pages produced by XYZ web design Shop is owned by XYZ Web Design Shop. Upon final payment of this CONTRACT, the CLIENT is assigned the rights to use as a Web site the design, graphics, and text contained in the finished, assembled Web site. Rights to photos, graphics, source code, workup files, and computer programs are specifically not transferred to the CLIENT, and remain the property of their respective owners. XYZ Web Design Shop and its subcontractors retain the right to display graphics and other Web design elements as examples of their work in their respective portolios.

**VTWebProperties** · 07-26-2007, 12:12 AM

The idea that he has the gall to write:

"If you start to add legal documents and transferring of rights
it all becomes different to the way we do business here"

just blows me away. In no way should you trust this client. Walk away.

**ADAM Web Design** · 07-26-2007, 12:29 AM

NateL: again, that last paragraph you wrote isn't an enforceable clause in at least some places. I learned this from a lawyer: if the work is commissioned in Ontario, the intellectual property belongs to the commissioner of the work, regardless of payment. If the artist doesn't get paid, the civil court system is the only avenue of recourse. It sucks, but it's also reality.

Again, I'm not criticizing the thought you or Vicky had: it's just that that clause is unenforceable.

Vicky's only smart recourse is to just walk away. Ed nailed it...no one should be intimidated by legal documents. They're just legal documents. Unless...someone's got something to hide.

**NateL** · 07-26-2007, 12:45 AM

I guess it depends on the country and its laws...we're all in different countries and things are enforced differently, apparently. Thanks for the insight Adam

**ADAM Web Design** · 07-26-2007, 02:12 AM

No probs, dude...it's how we all learn.

And every time a situation like this comes up, I hear the voice of Judge Judy saying "The Law is an ***".

**ForrestCroce** · 07-26-2007, 03:21 AM

Quote:

Originally Posted by vkw91

The agreement is; http://www.vkw91.co.uk/outsourcerscopyright.html

This is extremely common in photography. Proofs are delivered in any number of forms, but a client ... and I'm talking particularly in advertising here ... only gets the rights to use the work when payment has been made in full. That's not just reasonable, it's how things are done.

In Ontario, I'd structure a deal differently. I don't know enough about the law up there to say how, but it sounds like you would want to be selling a product rather than a service?

Adam has a point that extends far beyond Canada about different jurisdictions having different laws that can supersede your contract. In the US, unless both parties get some tangible benefit, a contract is null and void. A lot of model releases that have been written as contracts have fallen down in court over that ... the model has to be given something in exchange for the right to use her image commercially. In California, you can't shoot a whale from a moving vehicle. It isn't always common sense, and sometimes a lawyer is worth the money to read a contract over if there's any doubt.

If it were me, I'd send them an email explaining why I will never do business with them, and warn my friends away from them. It's possible the people don't realize how unreasonable they're being, so I'd give them the benefit of the doubt and tell them why they can take their money and shove it.

**richrf** · 07-26-2007, 09:45 AM

Hi,

There is really no good way to solve your problem, since you are dealing with a company that you have no history with nor do you have any references for. Even if you signed a contract, there is probably no way for you to enforce it, since there are hundreds of ways to get out of a contract and it would be way to costly for you to try to enforce it. I think the bottom line is that whether it is on the Internet or not, you can only do business with companies/people that you know about and feel comfortable with (trust). Otherwise there is a very good chance that the transaction will end up badly. This has always been the case whether it was pre- or post-Internet.

Good luck!

Rich

**highanddry** · 07-26-2007, 03:59 PM

It looks nice and official, but unless you had a lawyer write it out or you know something about contract law I wouldn't put too much faith in it. Not all contracts whether signed or not are considered legal contracts. Furthermore, I don't think you can enforce to pay someone your lawyer fees. I'll tell you about it in like 7 years when I'm a lawyer.