If you have any questions on this subject, or if you are in Massachusetts and need a contract for design services, please contact the author at Andrew@AndrewLynnLaw.com.
One of the services that I provide to architect and designer clients is contracts customized for the needs of a firm or project. A well written contract is essential because it sets up the scope and timeline of a project, manages the expectations of the designer and the client and gives you the rights of the parties and the procedures they will follow when something goes wrong.
A fellow lawyer recently asked me for an outline of a contract between a home owner and an interior designer. Here is what I wrote.
- General: Describe the project, the participants in the project and the parties to this particular contract. Include normal contract-for-services language, such as choice of law, arbitration, termination, modification, complete integration.
- Scope of Services: Describes generally the services that the designer will perform, and what services would be considered additional services. Additional services are work that is triggered by client requests or unforeseen circumstances and that is billed separately.
- Project Phases: Lists the project phases: Design phases such as pre-design, design development, contract drawings; construction supervision; project close-out; and there may be others depending on the complexity of the work. Includes the services to be performed during each phase - in more detail than the general Scope of Services section - and expected dates of completion. There should also be a discussion of the completion of each stage: presentation of the deliverables to the client, and how much time the client has to approve the work or request changes.
- Owner’s Responsibilities: What does the designer require of the owner? E.g., drawings to be provided, permit applications to be completed, access to the property, timely approval of design options.
- Compensation: What will the designer be paid, and at what times? If additional services are requested, what is the compensation?
- Delays: Describes the effects of delays. Delays caused by the client, by the designer, by the contractor, and by unforeseen circumstances will each be handled differently.
- Estimates: If the designer is providing cost estimates, at what points in the project cycle will they be given, and how reliable will they be? Language should be appropriate to your jurisdiction and give the limits of the designer's liability for missed estimates if needed.
- Intellectual Property License: Make a clear statement of which party will own the intellectual property, including copyright in the drawings. By default, copyright ownership goes to the creator, which is usually the design firm. The non-rights-owning parties (e.g. the building owner) will need a license for use of the drawings to build the project. Include limitations on those licenses, such as limiting their use to this project only. If building information modeling (BIM) technology will be used, include a BIM protocol section that makes it clear whether the BIM model will be available to the client and contractors. If it will be, and this is your first time writing a contract with BIM provisions, be aware that this is potentially a very complex matter and ask somebody with knowledge in the field for help.
- “Boilerplate”: When talking with other lawyers I tend to refer to this section as something like “the usual terms in a contract for services”, which doesn’t sound interesting, but this is not to be overlooked, because the terms that go in this section define the procedures to follow when something goes wrong. Terms here include choice of law, arbitration, termination, modification, integration, nonpayment and others. This is very dependent on the law of the particular state or jurisdiction, and a good lawyer in your area who drafts contracts will know what to include.