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CONTRACT CLAUSES YOU SHOULD PROBABLY INCLUDE (especially with companies)
(Note: I’m including common contract clauses with some information for you to consider. You do not have to include all of these clauses (also referred to as “provisions” or “terms” or “terms and conditions”), and there are certainly plenty of extra terms that you could add. The clauses below are in the order they tend to appear in the contracts I review.
In most cases, I’m not providing the actual language to drop into your contract. When I do include it, I’ll put **double asterisks** around the specific language. I’m only providing specific language for clauses where the exact wording is important and not necessarily obvious.)
Preamble: Start your contract with this language or something similar: This agreement (the “Contract”) is made on [insert date] (“Effective Date”) by and between the [name of your client] (“Client”) and [insert your name] (“Cartographer”). In consideration of the mutual agreement made herein, both parties agree as follows:
1. Scope of Work: Describe the project. Be as specific as possible, particularly about your deliverables. What size/resolution map will you provide? Color or B&W? Are you providing a print or a digital map? If digital, what is the largest decent print size? Does the map include fancy frames, compasses, or other illustrations? Is it your responsibility to make the map geologically/geographically sound (proper placement of mountains, rivers, etc.)? Anything you expect to be paid for should be detailed in this section.
2. Project Timeline/Milestones: When are you expected to deliver the final product? Are there any milestones along the way? If the client can provide feedback on milestones or the final map, give a time frame, e.g., “if client does not respond within 3 business days, the milestone shall be deemed accepted by the client” or “If the client does not raise an issue within 10 business days of receipt of the final deliverable, the final deliverable shall be deemed accepted by the client.”
3. Delivery: State how you are delivering the final product (via email, Google Drive, mail, UPS, etc.). If delivering via Google Drive or something similar, put a time limit on how long the deliverable will be available. That way you don’t have a client coming back to you 2 years later asking for the file.
4. Compensation: What is the base price? Will additional costs (such as revisions requested by the client) be negotiated at the time or preset? If negotiating at the time the need arises, consider including a minimum additional cost for options – not just revisions, but if the client decides he/she wants color, different size, etc. Are there any fees you need to add, such as Etsy or PayPal fees? Are you charging sales tax?
5. Payment: This is not the same as compensation, but you can combine the two. Payment terms dictate when the client needs to pay you. You can tie payment increments to milestones ($25 upon signing the contract, $50 upon receipt of initial linework, $100 upon receipt of final linework, $100 upon delivery of final map). Another option is progress payments – the client splits up the total cost into, say, four payments. Those payments are tied to the calendar, not to specific milestones.
6. Modifications: You may want to allow for modifications to the contract, such as time extensions. Modifications should be in writing, signed by both parties (or in email with explicit confirmation by both parties of the intent to modify the contract).
7. Revisions to Deliverable: You can include this in the modifications section or break it out separately. Will you allow for any minor revisions to your completed map? Major revisions? If so, be specific about what counts as a revision, whether revisions cost extra (maybe the first one is free but subsequent revisions will cost the client), the time period for the client to request revisions, and the max number of revisions you’ll do. It’s also a good idea to state what counts as a minor revision vs. major revision.
8. Notices & Contacts: List yours and your client’s name, phone number, email, and best times to call.
9. Termination: Can you terminate the contract unilaterally and/or without cause (i.e., for convenience)? Can the client? (You and the client can always agree on mutual termination.) What happens in the event of termination, in terms of both the map and finances? If the client terminates without cause, you should be able to keep whatever down-payment was made, or get paid for the work completed up to the date of termination. You should also specify that termination must be in writing. It’s unusual to see Termination for Convenience provisions in contracts. As the cartographer, I would not permit my clients to terminate for convenience without a financial penalty.
10. Ownership & Licensing: The client is paying you for the work you are doing, and not necessarily for the right to use the work in a certain way. Most people do not understand this, so you have to spell it out very clearly. Will you continue to own the artwork but grant your client certain rights to use it? In that case, you should include licensing language and account for any additional costs related to licensing. You can charge an upfront license fee and/or you can charge royalties (so if your client makes money off your map, the client needs to give you a percentage of the profit).
(Note: Clients will expect, at a minimum, a non-exclusive, fully-paid, royalty-free license to use the map for non-commercial purposes. You can state the following: **Cartographer hereby grants to Client a non-exclusive, paid-up, royalty-free license to use the map for non-commercial purposes.** A non-exclusive license allows you to continue using the map and to license it to others at the same time. A non-exclusive license can also be used for commercial purposes. A license for commercial purposes should cost more than a license for non-commercial purposes. If you don’t want to have a separate licensing fee, you may want to wrap that cost into the overall price of the map.
You can also grant an exclusive license for commercial purposes, which means you can’t license the same map to other people. An exclusive license should cost more than a non-exclusive one.
You can also permit your client to sublicense under a non-exclusive or exclusive license. This means the client can license your map downstream without your permission. An exclusive commercial license with the right to sublicense is the broadest license and the best case scenario for the client, so it should be the most expensive option.
If the contract contains a work-for-hire clause, the client owns the resulting map and you have no rights to it. In the contract, you are agreeing to assign all rights in everything you create for the project to your client.
If you assign or exclusively license the deliverables to your client, you have zero rights to use your work unless you retain for yourself a license to use the work. If you are assigning or exclusively licensing the map, include language such as: **Client hereby grants to Cartographer a non-exclusive, fully-paid, irrevocable, royalty-free license to use the Work for promotional and internal purposes.** This allows you to display a copy of the map in your portfolio.)
11. Limitation of Liability: **IN NO EVENT WILL EITHER PARTY OR THEIR OFFICERS, AGENTS OR EMPLOYEES BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUSINESS EXPENSE, MACHINE DOWN TIME, LOSS OF PROFITS, DAMAGE OR INJURY TO PROPERTY, FOR ANY CLAIMS, DEMANDS, OR DAMAGES ARISING OUT OF THIS CONTRACT OR USE OF THE DELIVERABLES BY ANYONE EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.** (Note: Yes, disclaimers must be in ALL CAPS, otherwise a court might not enforce them.)
12. Liability Cap: ** EACH PARTY’S TOTAL AGGREGATE LIABILITY FOR ANY CLAIMS OR DAMAGES WHATSOEVER RELATING TO OR ARISING OUT OF THIS CONTRACT AND/OR USE OF THE DELIVERABLES, WHETHER IN CONTRACT OR TORT, SHALL BE LIMITED TO THE TOTAL OF ALL AMOUNTS ACTUALLY PAID TO CARTOGRAPHER BY CLIENT UNDER THIS AGREEMENT UNLESS FURTHER LIMITED BY APPLICABLE LAW.**
13. Disclaimer of Warranties: **DELIVERABLES ARE PROVIDED AS IS. CARTOGRAPHER AND HIS/HER RESPECTIVE OFFICERS, AGENTS, AND EMPLOYEES JOINTLY AND SEVERALLY DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, IN FACT OR ARISING BY OPERATION OF LAW, REGARDING THE DELIVERABLES THAT MAY BE CONTEMPLATED, ANTICIPATED, OR DEVELOPED BY EITHER OR BOTH PARTIES; THE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMMERCIAL VALUE, AND/OR FREEDOM OF DELIVERABLES FROM INFRINGEMENT OF ANY PATENT, COPYRIGHT, OTHER INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY.**
14. Force Majeure; Client Delays: Cartographer shall not incur any liability or penalty for delays in the completion of the project due to actions or negligence of Client, unusual transportation delays, unforeseen illness, or other events beyond the control of Cartographer. If such event(s) occur, Cartographer may extend the completion/delivery date by the time equivalent to the period of such delay.
15. Disputes; Attorney’s Fees: In the event of a dispute, the prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys' fees incurred in enforcing this Contract. (Note: Do you have to include this? Absolutely not. But a lot of artists get ripped off because the person paying them doesn’t think it’ll be worth the artist’s time to go to court. This provision will make your client think twice about ripping you off, because if you go to court and win, your client will foot the bill.)
16. Severability: **If any one or more of the provisions contained in this Contract, or any application thereof is held to be invalid, illegal, or unenforceable in any respect for any reason, then such invalidity, illegality, or unenforceability shall not affect any other provision hereof or any other application of the affected provision. It is the intention of the parties that if any provision or application thereof is held to be invalid, illegal, or unenforceable, there shall be substituted in lieu thereof a valid and enforceable provision or application as similar in terms to such provision or application as is possible.** (Note: This is one of the clauses I’d delete if I had to make my contract shorter. So long as you are not contracting for something illegal, you’re probably fine without it.)
17. Governing Law: **This Contract shall be construed and governed by the laws of the State of [insert state where you live] without reference to its conflicts of laws principles.** (Note: This last part, the “without reference to its conflicts of laws principles,” is a way of ensuring that the state law you specify will apply. There are boring legal reasons why a court could apply the laws of another state if you do not include this language.)
18. Relationship of Parties: For the purposes of this Contract and all services to be provided hereunder, the parties shall be, and shall be deemed to be, independent contractors and not agents or employees of the other party. Neither party shall have authority to make any statements, representations, or commitments of any kind, or to take any action which shall be binding on the other party, except as may be expressly provided for herein or authorized in writing.
19. Entire Agreement: This Contract constitutes the entire understandings of the parties with respect to the subject matter of this Contract. All prior agreements, whether oral or written, are superseded by this Contract.
Acceptance: This is the area for both parties to sign and date (and include their printed/typed names). You can call the section “Acceptance” or simply write “Agreed to by:” before the signature block.
CONTRACT TERMS TO AVOID
Arbitration: It will prohibit you from going to small claims court, which is often the best option for artists. In small claims court, you do not need an attorney and usually the other party cannot bring an attorney, either. For arbitration, you may not need an attorney, but you should have one.
Conflicting Work/Exclusivity: You want to be able to work for more than just a single client. You may be okay accepting language stating that you won’t work for your client’s direct competitor at the same time, but otherwise you should be free to take commissions from anyone, regardless of your client.
Indemnification by Cartographer: Making a fantasy map is a very low-risk activity. It’s very unlikely that someone will be harmed because you’ve made a map. Even so, there is no need for you to go out on a limb and offer to be sued in place of your client. If a company insists on including this, at least make it mutual so that the company has to indemnify you, too.
Non-Disparagement: This is a BS clause that basically prohibits you from complaining about your client, even if they breach the contract and stiff you on payment.
Termination for Convenience: You probably don’t want your client to be able to terminate the contract just because they feel like it. If the client insists on including this clause, make it mutual so that both parties can terminate for convenience and make sure the clause sets forth the amount you will be paid in the event the client terminates. You should insist on being paid for the work you’ve already performed.
Work-for-hire/assignment of intellectual property: Unless you are comfortable not having any rights in your work (or unless you’ve been able to retain for yourself a license to continue to use your work), this may not be in your best interest.
NEXT TIME: Cease & desist letters
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