Guest Post: This is a guest post from Patrick Finney at Bent Oak Marketing it explains the use of a contract between yourself and your clients when working on development projects. This is aimed at developers who are looking to set up a business or expand in the USA. Please note that the contract details mentioned by Patrick are predominately for an American legal system and you will need to investigate the legal details and laws within your own country. If you would like to see a sample of a basic agency contract for a British/European agency then feel free to view ours, just click here.


In this post, I’ll share some suggestions you can use to tighten up your dev contracts and get back to doing the technical and creative work you crave.

Two Important Notes

Before getting started, you need to know that I am not a lawyer and am not offering legal advice. In fact, I recommend that you spend the money to get whatever legal documents—your development contract most certainly included—that you use to support your business thoroughly reviewed by a legal professional.

Also, I freely interchange the words ‘agreement’ and ‘contract’ in this post. Actually, the contract I use is called a PSA (for Professional Service Agreement), and I refer to it as that when talking with clients. (I think it seems a bit ‘softer’ than calling it a contract).

Basic Elements That Your Contract Should Always Include

Some things that should be in your contract are obvious; some, that are just as important, are not. Those that most of us think of are things like schedule, statement of work, and payment. To be sure, those have to be included.

But there are other things you need in there too: a clarification of your business relationship with the client, protection against unforeseen circumstances, indemnity, and so on. And some of them aren’t very pleasant either (like default), but they have to be in there.

A Summary of the Agreement

Although not technically a part of the contract, it is very helpful to include a ‘summary’ with the packet you provide your client. It’s a little like the executive summaries you’ve probably seen at the front of large business proposals. And, it’s a bit of an opportunity to ‘sell’ the client—and you never want to pass up those chances.

This link on writing executive summaries can help

Since I almost exclusively do WordPress sites, I use something like this:

Thank you for choosing Bent Oak for your digital marketing needs. We look forward to crafting a digital marketing program for your firm that sets you apart from the competition, wows your customers, and grows your business.

In our website development, Bent Oak uses the WordPress platform because of its popularity across the industry, its great reputation for stability and bug-free operation, and the large number of plug-ins that are available to support the unique needs your business may have.

Then, I have found it’s really critical to “invest” the client in the project’s success by including the following statement:

While we’ll be doing most of the work, we’ll need your help for a few things.

We’ll have design concepts that we need you to review; that way, we know we’re going in the right direction and that you and your customers are going to love the site.

When your project includes client-provided content, it’s good to mention that in there too. I follow this up with basic sections that cover what I will do when I will do it, and how much it will cost.

If, as is almost always the case, the project schedule is predicated on the agreement being signed by a certain date, make sure you clarify that the schedule shown is based on that.

Defining Your Business Relationship with the Client

While this is more important in some localities than others (most often because of tax laws), your contract should clearly state what relationship your firm has with the client firm as a result of this contract.

Some information on US law governing contractors

In most cases, your relationship will be that of a contractor, not an employee. Failure to make this clear in the agreement could have disastrous tax implications, and could subject your business to laws in effect at the client’s location—or vice-versa. I find this simple phrase works well:

Nothing in this Agreement shall be construed as creating an employment relationship. Bent Oak Marketing will perform services under this Agreement solely as a contractor to Client.

Contact, Payment, and Authorization Logistics

No one wants a phone call at 10:00 at night. And you don’t want the client’s shipping clerk authorising changes to the project. So call out your business practices in the agreement:

  • Your hours of operation, and what accommodations you’ll make (if any) for communications outside those hours.
  • Who represents the client for approvals, schedule/scope changes, etc.
  • What acceptable forms of communications are (letter, email, phone).
  • What forms of payment you accept, your terms of payment, and what will occur if a payment is not honoured.

Be very specific. For example, my invoices are “due upon receipt”. Many businesses are used to 30-day terms; once I clarify my expectations, I hardly ever have an issue.

Warranty and Exclusions

Every agency is proud of its work and has a right to be. And we all want our clients to be happy. But what are we really promising them? And a better question is: what should we be promising?

Let’s face it: most clients don’t really understand websites. To them, it’s a product like anything they buy from a vendor. But it’s not really, is it?

We’d love to say our websites will just chuck along doing the client’s bidding forever. But we know better. We know there may come a day where WordPress, the theme, the plug-ins, and any custom code will no longer play well together. Your contract absolutely must address this. And the sad fact is, you’ll need a statement like the one I use (following):

Bent Oak Marketing warrants to Client that work performed under this Agreement will be of the highest quality, fully compliant with industry-standard development practices.

For websites, Bent Oak Marketing warrants to Client that the site will perform correctly on all major browsers, as well as have modern, responsive design that will perform correctly on standard mobile devices as of the date the site goes live.

That’s right: we can’t guarantee a thing after the site goes live! And wait, there’s more. You simply must have warranty exclusions similar to these:

Bent Oak Marketing specifically does not warrant performance or operability of websites, social media posts, or links after the date the work goes live or is posted, due to lack of control over changes made to search engines, browsers, WordPress, social media sites, and plugins.

Bent Oak Marketing does offer site maintenance, site update services, and site troubleshooting; however, such services are specifically excluded from this Agreement.


To the extent permitted by law, Bent Oak Marketing specifically excludes any implied warranties, warranty of merchantability, or of fitness for any particular purpose.

(Please note that you will want a legal professional to review your warranty clauses in detail).

Default and Breach

Of course, you don’t engage with the client expecting the project to fail, but your contact must take into account those awful situations where things just aren’t going to work out. And, however much angst cancelling a project may bring, it’s far worse without a contract that clearly spells out how that will happen.

You will want to structure your default clause with notifications and specific time relationships. For example, you may wish to include both a “default” clause (for when they’ve gone outside the contract’s requirements) and a “breach” clause (for when they have failed to correct the default condition). Also, be sure to state what happens to monies paid and work product in the event of default or breach.

A Force Majeure Clause

Don’t let the name fool you: this is a very common sense clause. It just basically says that neither party will hold the other in default if circumstances beyond their control were at play.

This could be anything from network outages to strikes, riots, and catastrophic weather. Some brief research should lead you to a Force Majeure clause that meets your needs.

Clauses to Protect Your Business

Unfortunately, in the digital world, things like ownership and copyright aren’t given the attention they deserve—but your contract must! In my experience, this is where agencies get in the most trouble.

If your client supplies your firm materials to support the development of the site, who owns the rights to them? We’d all like to believe that the client got them legally. But if they did not, and you put them onto the site, your firm may have some legal liability. (Believe me, you do not want to meet the lawyers for Getty Images). This is why you need an indemnification clause that requires the client to defend you against any claims related to use of the materials. Here’s what I use:

Client warrants to Bent Oak Marketing that any materials supplied by Client to Bent Oak Marketing for use in performing this Agreement, whether writings, designs, logos, pictures, audio or video recordings, they either own rights to, or have been licensed to use for the intended purpose.

Client agrees to indemnify and hold harmless Bent Oak Marketing, its contractors, successors, and assigns, from any adverse action related to Bent Oak Marketing’s use of materials provided by Client.

You also need to know that the materials you’ve been given are accurate unless you’ve included time in the contract for editing. I add this short statement to make clear what my responsibilities are:

Client represents that they have checked client-provided materials for accuracy and completeness, and gives Bent Oak Marketing permission to use them in performance of this Agreement without further review or edit.

So when exactly does the client own the work? Your contract needs to spell that out. Again, this is a place where many development contracts fall short. The wording I use is:

Prior to receipt of final payment for services rendered, Bent Oak Marketing retains full title to and ownership of all materials produced under this Agreement.

It’s important to also note what happens to ownership of the work product in the event of default or breach. (I recommend doing it in the section related to default, not here).

Project-Specific Elements in the Contract

The previous items were pretty much “boilerplate”; that is, you need them in every agreement. However, just as important are the parts of the contract that change for each project. These are things like the scope of work, schedule, and cost.

Defining Clearly What You Will Do…

A very common complaint from website development professionals is “scope creep”, that awful growth in client expectations that can occur during a project. If your contract defines exactly what you will be doing—and how requests outside the scope of work will be handled—you’re on your way to keeping scope creep to a minimum.

The definition of scope must be very specific. Which specific pages will be created? Will development be done on a dev server, and then transferred to the client server upon project completion? Is there specific functionality to be included (opt-in, eCommerce cart, advanced form, integration of a feed, etc.)? What kind of testing/validation will you do?

(By the way, should the client change direction in the midst of the project—even though that never happens—resist the temptation to just ‘get to work’. Insist on a change order from the client’s authorised representative; make sure that costs and schedule impacts are very clearly communicated).

When You’ll Get It Done.

We all know how important schedule is in our business, both to ourselves and our clients. Delayed projects often mean impact to other clients, delayed cash flows for our agencies, and non-billable hours. So this is another place to be very specific. Use milestones regularly in the project for key deliverables/approvals.

And, as the schedule is always predicated on when the agreement is signed, make sure you clearly state that the schedule dates are based on the agreement being signed (and any required payments received) by a certain date.

And What It Will Cost

While this is an obvious element of any contract, often agencies don’t handle it as professionally as they should. If you will require some payment prior to beginning work, note that. If a certain milestone (like initial design concept approval) has a payment due, note that too.

Final Thoughts

No blog post of reasonable length could ever fully cover development contracts, but I’ve taken care of the basics here. And again, you should have a legal professional review any contract you intend to use.

A Little Extra Protection

My agency’s contracts go a step further that’s both for added protection and to make sure the client understands the important parts of the agreement. In these places, we require an additional client initial and use text like this:

_____ As an authorized representative of Client, my initials at the beginning of this line indicate agreement with the Client-Supplied Materials & Indemnification portion of this Agreement.

Tying Things Back to the Contract

When you communicate with your client about the project, it’s important to refer back to the contract whenever possible. For example, are you presenting an invoice? Clearly, identify on the invoice if it’s for a particular project and note the date of the agreement. If it’s tied to a milestone, be sure to note that too.

If you are requesting content, make sure the client knows when it is due, and tie that back to the contract as well. And, if the worst happens, the client defaults, you will want to very carefully inform them of that and of the consequences specified in the contract.

Now Get to Work!

Coming up with a nice, tight development contract isn’t easy, but once the basic “boilerplate” is done, you’re most of the way there. Once in a while, a client will balk at some portion of the agreement. Then it’s up to you (and perhaps your lawyer) to decide whether the business is still worth pursuing.

But when you really need it, you’ll be glad you took a break from crafting the world’s greatest websites to put some effort into a good, solid development agreement.