Contract Comment Page
This page exists in response to several recent projects where we have been asked to read and sign lengthy contracts (sometimes upwards of 40 pages) for the purchase of what are essentially stock TechnoFrolics items. Such projects not uncommonly also request each payment to be preceded by a stamped, notarized Waver of Lien (sometimes where said payments are only a few hundred dollars).
Our goal is to provide you, our customer, with the most cost-effective solutions possible. We also would like to put our time and effort in directions that we feel make the world a better place. We do not believe such legally/paperwork complex paths achieves either of these goals (particularly since 90% of what such contracts address typically does not apply). Rather, we believe a simple PO is a much better option. We are happy to append a 1-3 page deliverables documents (a sample of which can be seen here) for those projects where it is indicated.
That said, if a project requires a weighty contract structure to be in place, we are certainly willing to oblige, but need to cover our costs (our standard pricing does not include such). We have created this page to try and streamline this process for you and us, should the complex the path itself be unavoidable.
Issues to consider:
- Typically, we have found such legal documents require several iterations of editing for both sides to be comfortable. Thus there is a time as well as money commitment required.
- For most projects with which we are involved, we do not go onsite; install is provided by others. If that is the situation in your case, we recommend removing that part of the contract language, and its related Named Insured sections, prior to sending it to us for review.
- Most of our projects are substantially not a Work For Hire, but rather, an application of an existing technology for which we own and retain intellectual property rights. Furthermore, even in those cases where we do do significant custom development work, in the vast predominance of cases, such work springboards directly off of, and is intimately intertwined with, our existing creations. Thus, contract language stating that the client owns all rights to the Work Product typically needs to be heavily edited or removed. (In terms of the look and feel of the exhibit overall, custom-produced video content (if any), etc. - that often is owned by the client, and is separate from what we refer to here.)
- We are unable to sign contracts with language which state that we will unconditionally pay all legal fees and otherwise “indemnify, defend, and hold harmless Party and its affiliates, subsidiaries, shareholders, members, directors, officers, employees, agents, and parents, from and against any Claim, and any associated Losses to the extent caused by violation of any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right due to TechnoFrolics providing The Services”. As the reader may be aware, absolutely everything under the sun (and beyond) is patented, and thus assuring that any Work Product is free of such encumbrances is in practical terms quite impossible.
(Consider, for example, the patented "Method of exercising a cat" which covers a cat chasing the beam from a laser pointer, or "Method of swinging on a swing" granted to a 7 year old boy – see Wikipedia entry. )We are however willing to sign clauses which state that we will not intentionally put the customer at risk by behaving in a manner that knowingly violates specific 3rd party intellectual property rights.
- We are happy to sign Wavers of Lien and include them with invoices. Having an additional in-house witness sign them is also quick, easy, and without cost impact. However, if notarized Wavers of Lien are required for each payment, then costs for additional administrative time will be passed on as an expense.
- Overall and in summary, going from a simple PO/Deliverables/Invoice, to lengthy contract with notarized wavers of lien, will typically add between $300-$3000 to the project cost (depending on the complexity of negotiations), and perhaps ½ day of time on the part of the client/intermediary. For all concerned, we wish to avoid this whenever possible.
* Footnote: Because we were curious, we asked both lawyers in big firms, and smaller design shops, their experience with situations where the contract’s size dwarfed the project at issue. From both parties, what we were told is that industry standard practice, for firms such as us, is to:
- Simply sign such documents (often without even having read them).
- Have no intention of fully absorbing, let alone actually adhering to, the contract terms, with the idea that since the whole structure does not reasonably apply in the context, little harm will come from that approach.
- Be aware that patent rights, as Federal Statutes, supersede Work For Hire contracts, and thus signing a contract with a Work For Hire clause on a patented technology is without impact. (The situation is similar for copyrights, with some caveats.)
While we understand this perspective, we are unwilling to follow this route. If that means certain business opportunities are lost to us, so be it. Clear and honest communication with you our client starting from day 1 has a higher priority for us.