Professional Services Agreement

Hey All!

I am working on a professional services agreement and I need help amending the document.

First: I want to add into the section entitled "Ownership" (which talks about how the Client will own all programs, software, documentation, copyrightable work, discoveries, inventions, or improvements developed by me) that the Client will only own the above named things if (and only if) it is pertaining to the services contracted. That may be what it's saying... Here is the paragraph: "Contractor agrees that any computer programs, software, documentation, copyrightable work, discoveries, inventions, or improvements developed by Contractor solely, or with others, resulting from any performance of the Services pursuant to this Agreement are the property of Client and Contractor agrees to assign all rights therein to Client."

Second: In the section called Name Usage, I need to add that I am allowed to add the Client's name (business name) and website address to the Portfolio section of my website... Here is the paragraph: "Both Contractor and Client agree that without prior written approval, neither party shall publish or use any advertising, sales promotion or publicity matter relating to services, materials, information, products and reports furnished by one party wherein the other party's name is mentioned or its identity implied. Both parties acknowledge and agree that neither party acquires rights to use or refer to, or interest in, the other party's name."

Third: Could someone _please_ decode this paragraph for me? "Contractor shall provide statutory worker's compensation insurance and general comprehensive and contractual liability insurance in sufficient amounts to cover liability of Contractor that may arise hereunder. Where permissible, Client shall be named as an additional insured. Certificates of Insurance shall be furnished to Client from time to time upon reasonable request."

Thanks. That's all for now...
//Ryan

(Below, "you" is referring to "the contractor")

On the "First" part, make certain that you include a clause somewhere, either in that clause or another clause, that states that they will own it upon receipt of payment. I can't stress this enough. It may seem unreasonable, but from the perspective of a developer who has been burned by NOT having this, I can't express its importance enough.

Depending on the agreed payment schedule and such, you could spend 100+ hours working on a certain "module", present it to the client, and they'll say "we don't want it like that, but we want to keep that for reference," then they could terminate your contract without payment, and you're screwed out of 100 hours of work with nothing to show for it.

The "Second" point seems a bit iffy to me. You need to have a seperate document and agreement for that. The customer needs to opt not to be listed in your portfolio, especially if they own the content at the end of the job.

On the "Third" point, change "shall" to "will not." You don't want to be insuring your client. If anything, they should be insuring you.

Basically, what that paragraph says is that you are responsible for the worker's compensation and liability insurance of your client. That's totally absurd and wrong. The contractor should be responsible for the contractor only. If the contractor hires anyone to assist, they are responsible for the new hire's worker's comp. and liability insurance, unless otherwise documented.

First: That covers the client perhaps too well but is basically what you'd expect if you were directly employed by any company. As such, be careful not to bring any of your personal tools (e.g. code libraries) that you consider your own to the tasks.

Second: you can't name the client in your portfolio, basically. If you have an approval document, I don't know that you need to state it on your site except according to what's in that document. Per the contract, you can't reference it at all.

Third: I think it means the work site is already insured and you will be covered under that insurance when working on the premises. In that way if you slip on the floor and suffer injury it will be arbitrated by the insurer rather than a civil suit ;-)

A lawyer will give you the right answers, though ;-)

Oh carp. I read that backward. Huh? You need to insure the Client? Get a lawyer today and ask him or her ...

Thanks for the help...

I barrowed this contract from someone, he said that his client's lawyer wrote it for him so that's prolly why it focused mainly on the client and not the contractor.

Medialint, I was (well, still...) extremely confused on that. I may just omit it altogether.

I've added this for Name Usage... "Both Contractor and Client agree that without prior written approval, neither party shall publish or use any advertising, sales promotion or publicity matter relating to services, materials, information, products, and reports furnished by one party wherein the other party’s name is mentioned or its identity implied. However, both parties can publish a hyperlink to one another’s web presences, which is completely voluntary."

I hope that's enough... lol.

//Ryan

No, I said the contractor gave it to me (I was the client). Stated that in all the forum postings, the PM, and the email.

First: Whatever is to be covered is specified in the Statement of Work. Often times your tool kits are expected to be "free" to the client - they have a copy to use without limitations, and you can continue to use them in future projects. They should contain helpful tools, but not feature sets that are a competitive advantage for the client.

Receipt of payment is also covered in a later section of the contract.

Second: I disagree with your revision to the naming. If the client is happy with your work, then they should also be happy to be a reference and allow you to list them in your portfolio. You can ask them later. The point of the naming is to ensure that neither of you can piggy-back on the other or reflect their brand. If I read that, as the client, I would ask for your modification to be removed because I find it invasive.

Third: medialint has the right answer.

As I said before, go talk to a lawyer. Use what I gave you as a reference, but don't go looking for advise from us with NO legal background. I sent out the PSA to help save you hundreds of dollars in lawyer fees, and if people are too cheap to consult a real lawyer then I simply won't send it out again.

Sorry about that, NovaX...

I think I have a good draft finished. I have a lawyer lined up now, I was having you guys help with my draft. He can work on on everything else.

Thanks everyone.