SOWs, Contracts, and the Content Development Lifecycle By Jack Molisani Executive Director The LavaCon Conference on Content Strategy @JackMolisani @LavaCon

President, ProSpring Technical Staffing

Executive Director The LavaCon Conference

Author, Be the Captain of Your Career

About Jack Molisani

Disclaimers • I am not a lawyer and am not

qualified to give legal advice • I am just sharing lessons learned • Check with your own attorney

before acting on any information in this presentation

• Group participation • Artists

Goal of Presentation

To cover the basics of how to write statements of work and contracts for the various stages of the content development lifecycle

Statement of Work

The most successful projects begin with a written statement of what is needed and what will be done:

• Statement of Work (SOW) • Project Plan • Document Plan • Called by many names

Statement of Work • Most projects are either too large or

too nebulous (not well defined) to create one big SOW for the whole project

• Divide and conquer: Create an SOW for each phase of the content development life cycle

Product and Content Development Lifecycles

Needs Analysis

• The first step of any project is determining what the customer needs

• Start with a needs analysis (content inventory + gap analysis)

Requirement Definition

Use the results of the Needs Analysis to define what you or your company will do to fulfil the needs identified

Content Strategy

Only after you discover what the customer has and what the customer wants can you create a strategy on how to get there

When Do You Need an SOW?

For each deliverable • Phase 1 • Phase 2 • Phase 3 • Phase 4–6

The Relationship to Sales

Before each phase is started, someone in your company (you?) gave an estimate to the client, and the client gave their OK to start.

The Relationship to Sales

The SOW is a statement of what will be done. A contract, in turn, defines how much your company will be paid for the work, by when it should be done, etc.

Why SOWs and Contracts are Important • Just saying what you want isn’t

enough because words mean different things to different people.

• Some people have selective (or no) memory, or will just plain lie about what they said.

“Palest ink is better than best memory.”

Chinese Proverb

What to Include in an SOW

Work to Be Done

• Be specific. State exactly what will be done.

• “We will perform a content audit.” vs. • “We will create a content audit for

website www.ACMEwidgets.com as of 23 Feb 2016 in the style and level of detail of the sample pages in Appendix _.”

Include a RACI Matrix

For each task to be done, define who is: Responsible (to do the task) Accountable (ensure that it will be/ was done correctly) Consulted (for input or permission) Informed (regard progress)

Sample RACI Matrix

https://en.wikipedia.org/wiki/Responsibility_assignment_matrix

Define the Deliverables

• Incremental deliveries or just the final product?

• Prototypes, storyboards, wireframes, screen mock-ups? In what development tools?

• How many reviews, how many deliveries (Alpha, Beta, Final)?

• Are source files deliverable?

Include Examples

• Prototype! Prototype! Prototype! • Sample screens • Sample pages • Sample layouts • Sample wireframes • Sample reports

Schedule • Identify key milestones

Appendices

• Sample reports • Sample diagrams • Screen shots (with dates and

version) • Anything that will help define

the project

Contracts

Contracts

• Repeat: I am not a lawyer and not qualified to give legal advice, so consult a good attorney

• Attorneys are expensive but worth the money

• If you avoid just one law suit or non-paying client…

Definition of “Contract” An agreement with specific terms between two or more persons or entities in which there is a promise to do something in return for a valuable benefit known as “consideration.” The existence of a contract requires the following: a) an offer b) an acceptance of that offer c) a promise to perform d) a valuable consideration e) a time or event when performance must be made f) terms and conditions for performance

Law.Com Dictionary

Contracts

• “Contract” vs. “Letter of Agreement” • Call it what you want as long as it is

written and agreed to • Can be emails back and forth

Sample Contract

Parties

Specify who the agreement is between This letter defines the agreement between ProSpring, Inc.(ProSpring) and Acme Consolidated Industries, Inc. (Client) to produce....

What Will Be Done

Reference the Statement of Work ...to create a content strategy as defined in the XYZ Project Plan of 12 March 2016...

Cost

The cost, and whether it is fixed bid, hourly/hourly not to exceed, etc. ...for a total fixed bid of $xx,xxx.

Billing and Payment Terms Billing milestones: 20% on authorization to proceed 55% on alpha delivery 20% on beta delivery 05% on final delivery

Terms: Net 10

Terms and Conditions

The project cost is based on the following terms and conditions:

Out-of-Scope Changes

– A content inventory and audit was performed and the SOW for what is needed is included in the 12 March project plan. Time needed to create any content not included in the SOW will be considered out of scope and is billable.

Out-of-Scope Changes

– ProSpring will send Client a Change Authorization Form (Appendix _)showing the anticipated cost and schedule impact of the requested change(s). Client must approve all Change Authorization Forms before ProSpring begins any out-of-scope changes.

What Is and Is Not Included – The project cost includes two (2) rounds of strategy reviews. Any additional rounds of reviews are considered out of scope and are billable at $xx/hour.

– The project does not include illustrations or photography.

Rush Fees

– Rush charges outside the scope of the agreement will be billed at $(1.5X)/hr.

Response Time

– Client agrees to respond to all requests for information within two business days and to return all review comments within five business days.

– Any delays past the above by Client will cause an equal number of days slip in the delivery schedule.

Other Terms

– Client will consolidate all tech review comments and resolve any conflicting comments before returning them to ProSpring.

– Client is responsible for arranging all travel needed for this project as identified in the project plan.

Other Terms Should Client cause production to stop for more than ten business days, ProSpring reserves the right to reassign the project resources to other projects. Once the project becomes active again, ProSpring will reassign resources as they become available or will assign other resources.

Other Terms Time needed to implement scope changes, new functionality, reversing earlier decisions, etc. are out of scope and will be billed hourly.

“Kill Fees” Should the project be cancelled due to no fault of ProSpring, Client agrees to pay 30% of the fees for the remaining phases of the project specified in paragraph X [billing terms] as compensation for work ProSpring may have turned away during the course of the project.

“Kill Fees” If Client authorizes ProSpring to start a phase of the project, Client agrees to pay the billing milestone for that phase if the project is cancelled due to no fault of ProSpring before that milestone was reached.

Legal Stuff

UCC vs. Common Law Uniform Commercial Code (UCC) is a

cross-state agreement of how work can be treated. UCC can enforce assumptions about how the work will be performed and what’s included in it, and arbitration or court rulings may find that an unstated assumption is part of the contract.

Common Law is a legal concept that restrains expectations to those explicitly stated.

UCC vs. Common Law Signing this agreement, generating a PO for, or otherwise authorizing starting work against this agreement constitutes its acceptance as a contract under common law.

Indemnification ProSpring will do its best to ensure that any content developed for Client is technically accurate to the best of our knowledge; however, responsibility for the any content developed belongs ultimately and solely to Client.

Indemnification Client agrees that it is solely responsible for the accuracy of content and indemnifies and holds harmless ProSpring from any and all actions, claims, damages, expenses, and liabilities resulting from Client’s use, distribution, or modification of the content.

(Disney Story)

Non-Disclosure ProSpring agrees to not disclose any Client proprietary information or intellectual property (that was not already in the public domain at the time of this proposal) to any party not directly involved in the production of the documentation identified in this agreement.

Non-Disclosure ProSpring has spent years developing proprietary processes and procedures for creating content strategies and developing content. This information constitutes the intellectual property of ProSpring. Client will not disclose ProSpring intellectual property not already published in the public domain.

Rights, Use and Ownership ProSpring retains the right to show developed content to prospective clients in sales presentations, to release an announcement of this contract to local press once accepted, to list Client in our published client list, and to submit the product to professional competitions as a sample of ProSpring’s work.

Copyright ProSpring owns the copyright to any content under development, and will transfer the copyrights to Client once the final payment is received.

More Legal Stuff

More Legal Stuff The laws of the State of _____ shall govern this Agreement. This Agreement sets forth the entire Agreement between the parties and supersedes all contracts, proposals, oral or written, and all other communications between the parties with respect to the subject matter hereof. This Agreement may be modified only by a written amendment.

More Legal Stuff If a controversy arises between the parties concerning or relating to this Agreement, the parties hereto agree to submit such controversy to binding, non-appealable arbitration in accordance with the rules of the American Arbitration Association. Each party will be responsible for any associated costs or fees.

More Legal Stuff All of the terms, provisions and agreements herein contained shall also be binding upon the heirs, executors, administrators, successors and assigns of the respective parties hereto.

If any term contained in this Agreement shall be determined to be void or unenforceable, the remaining terms shall remain in full force and effect.

More Legal Stuff Any party’s failure to enforce any provision or provisions of this Agreement shall not in any way be construed as a waiver of any such provision or provisions, nor prevent that party thereafter from enforcing each and every other provision of this Agreement.

External Documents

Include copies of external documents, don’t reference them.

ProSpring agrees to follow Client’s Code of Conduct: www.client.com/code

vs. ProSpring agrees to follow Client’s Code of Conduct listed in Appendix _.

Offer Acceptance Signatories to the agreement have the authority to commit resources for their respective organizations.

Agreed by:

____________________ ________

Name Date

For Acme Consolidated

Industries, Inc.

Definition of “Contract” An agreement with specific terms between two or more persons or entities in which there is a promise to do something in return for a valuable benefit known as “consideration.” The existence of a contract requires the following: a) an offer b) an acceptance of that offer c) a promise to perform d) a valuable consideration e) a time or event when performance must be made f) terms and conditions for performance

Law.Com Dictionary

Note: Nowhere in the above does it say the offer has to be signed to be accepted.

Summary

• Get it in Writing • Define the Project in Explicit Detail • Prototype, Prototype, Prototype! • Have a Good Attorney • Write Good Contracts

Contact the Speaker

Jack Molisani JackMolisani@ProspringStaffing.com @JackMolisani Jack@LavaCon.org LavaCon.org @LavaCon