What is a Client Entitled to when Coure has been Completed?

Hi All,

Can you tell me what is the client entitled to once you have completed developing a course for him or her?  Does he/she get to own all the files you have created in Articulate, and you therefore give those to him/her or do you  only send a link to those files that were published in Articulate?  It would be great to find out what course developers promise their clients.

Thanks!

-Helena

24 Replies
Garry Hargreaves

Hi Helena,

Generally no. It depends on the contractual arrangement and agreement you have made up front.

For example: If I build you a house, you own the house I built - however, you don't own my tools, my hammer, my nail gun etc etc etc

Make sure you have “moral rights” covered off in your contract - the devil is in the detail here – this issue/topic typically comes up at the end of the project.  So have it covered off from the getgo.

If the client insists that they should own the code, and you have agreed (up front), to assign all source code/files/copyright over to the client – you should (must) charge more for the project.   It means you can’t really use that code, that graphics etc etc  - because you would be breaching the clients copyright if you re-used the material I have made.

You may wish to grant permission, for backup purposes only, for them a copy of YOUR code, in case you go out of business – but you own it and they can’t just give YOUR code to another developer.  Again cover it off up front and in a legal document – signed by both parties.  Here in Australia is it a very good idea to understand the legal term “Contract on Foot”.  Unsure if this legal term has the same clout were you live.  Very useful term.  Anyway, hope it helps

Cheers

Garry

Sheila Bulthuis

Hi Helena,

As Garry said, it depends on the terms of the contract.  I’m guessing what’s “normal” differs from one place to another, and maybe from one industry to another, as my answer is very different from Garry’s.

Most people I know here in California (who are freelancers/contractors/consultants) do “work for hire” which means that in exchange for whatever you are being paid, you give the client ownership of the materials you create – and as such, they would probably have the right to the source files if they wanted them.  (This is often spelled out very specifically in the contract, but even if it’s not, “work for hire” kind of implies it.)  There are all sorts of other agreements you can come to – one that I think is interesting is giving your client a perpetual license to use the materials (without or without the right to create derivative works) but maintaining the copyright yourself, which avoids the problems Garry mentions about re-using assets.

I think the key, as Garry says, is to make sure all this is spelled out clearly – and agreed to – before you start the project…

-sheila

Jeff Kortenbosch

As a company man I want to own all the source materials of projects 'externals' have created for me. As a Freelancer I always give all away, like Phil says. I want them to come back to me because of the quality of my work not because I am the only that can do their maintenance...

Just have it clear from the start and if you like... charge extra for it.

Bruce Graham

Pretty much the same as Phil and Jeff - EXCEPT...images.

Images are the one thing that can get tricky. You need to decide if they own them, or you own them.

If you retain the ownership rights, then you need to ensure that you do not hand them over in the sourcefiles.

Sometimes it is easier to agree that the client is the SME, and they source and own all the images.

I will always ask the client what the source of any images they provide is - and get them to confirm on email if necessary. On several occasions I have refused point-blank to use images that "...we just got off Google...", or which have an obvious iStock.com watermark!

Paraphrasing Phil, Jeff, and the the character Izzy from "The Mummy Returns" (2001), if it has been agreed that the client is paying, "...they can shave my head, wax my legs, and use me for a surfboard".

I absolutely insist that the client, or their representative holds all files and is agrees to maintain them and back them up in perpetuity after sign-off. I am not a hosting service. I will take backups, however, this is for my processes, not to save them from having to do it. If we need to amend files, they can always let me have access again. Sometimes clients forget their responsibilities in the deal and need to be reminded.

Bruce

Garry Hargreaves

Some good points above.

I have no problem giving source files away for backup purposes; I have a problem giving away the copyright to those source files (and your imagery, your look and feel, your design elements) if the project has not been costed that way. If it is clearly identified upfront in the contractual arrangements (yes broken record) and costed accordingly (cost it like you’re not getting the next round of development) – then it’s dealt with.

I have had plenty of clients who bring (commented and uncommented) developer source code and action script – and say can you use this, but make it better or make it different. Your contracts should ensure you do not knowingly breach someone else’s (third party) copyright and your insurances should back you up in case you unwittingly do.

As mentioned previously, this could also be a pricing discussion.

Some developers price current work at a rate to encourage future development figuring in the long run, a profitable relationship. This is a good strategy; however you have weakened your bargaining position if the client can take the sources anywhere, to anyone or to an overseas production house.

Salient points from my perspective:

1: Cost each job to be profitable. Ball park: Work out your labour costs, it costs a minium of 15% to keep the lights on, add 20% contingency, and then add profit (you will need this when you buy your corporate yacht).

Remember, this is code discussion is effectively mute if you’re out of business due to incorrect costings. Hoping for more work is very risky – “Remember, in business, hope is not a strategy”

2: In the early stages of the project Analysis phase (see ADDIE, or Dick and Carey ect) yes talk about all things technical, look and feel and functionality and also talk about the boring side, the business side - who owns code, asBruce say's whose job is it to backup (has ongoing annual fee for hosting been factored in), roles and responsibilities, have a project timeline, where to go for escalations. Showcasing your previous work will help you get the job. Having a have a checklist for the boring stuff, covering these standard issues, and have a standard contract will help you sleep at night – covering yourself. No one needs a contract when the relationship is fine – if it goes “pear shaped” for any reason – everyone dives for the contract clauses.

Hope it helps

Garry

Bruce Graham

...I must add that I have never, ever in my freelancing "career" had a formal "contract" with anyone, other than a current one I'm negotiating where the payment mechanism could get a bit convoluted.

I have always relied on the combined powers of trust, business relationship management, discussion and (where necessary) assertiveness, all executed via phonecalls, Skype and email.

I'm not sure if that makes me monumentally dumb, incredibly lucky, or refreshingly honest and nice to do business with

Bruce

Garry Hargreaves

Contracts cut both ways – they protect the client and you.

In a previous role we did the eLearning for the role out of Seibel (CRM) for Vodafone across NZ and Australia and the online learning for Australian Defence Force (ADF) as well as a range of Govt Departments …no one is leaving the room without a contract.    G

Garry Hargreaves

Your clients must be reasonable, well informed, educated in online matters and know exactly want they want you to build.   Gezzzzz, where do you find those? Actually, Bruce raises another very good point.  If your project contact leaves your client’s employment and nothing is written down.....  Well your projected income could be exposed.  Contracts (and previous payments of your invoices) serve as a record of intend of the client.

 

Bruce Graham

Garry Hargreaves said:

Your clients must be reasonable, well informed, educated in online matters and know exactly want they want you to build.   Gezzzzz, where do you find those?  


They do not necessarily start off like that, very often I help them get there as part of the "free service" before starting the project

Many people charge for that, I do not always do so, sometimes, but not often.

In the long-run it often helps to cement the relationship as a "trusted adviser" rather than just being another "supplier".

Bruce

Helena Froyton

Thank you all for your replies.  I am glad I can hear both sides of the coin.  I think I am leaning towards having a contract even though I guess you also need a lawyer for that.  How do you charge for your work?  Per hour?  Per project?  Do you find it hard to estimate how much time a project will take?

Bruce Graham

By the hour mostly.

By the project sometimes.

Very hard   I get it right most of the time. Sometimes you will need to talk "candidly" to clients because of mistakes they have made, and ones that you have also made.

Often best to ask them what they would find easiest, and see if it works for you.

Bruce

Garry Hargreaves

There is a range of associations around that have eLearning contract templates (Web ones are a good start also) in OZ we use http://www.elnet.com.au/.  Try Bersin and Associates or Brandon Hall (a little expensive to join though).  There would a local one near you, join an association, or get access to a free contractual templates, then customised yourself to suit your business ( plain English is ok), then get a legal eagle person to do the final edits - thereby reducing the cost. Use templates then customised what legal people will do anyway.  Remember a binding contract can be written on napkin.

Use check list and get the client to sign off they have understood their responsibilities is a very good start.  Also remember after you wow them with your capability, it the project management, contractual arrangements, customer service and (above all and as Bruce alluded to) communication that gives them piece of mind.

Cheers

Garry

Bruce Graham

Customer service and communication are often the things that people remember. Everyone is expected to "...do the job...", but it is what you do as well as the contracted job (good and bad!), that will get you remembered.

If I look through my client references and feedback, the course itself is seldom ever mentioned, all the other bits are.

Repeat business cuts your cost of sale, and allows you to increase the amount of time you spend billing.

I have one client who sub-contracts me out to their commercial clients. I was contacted last week by someone new, as my usual contact was on vacation. I took a decision last week to work directly with a new (sub) client, but as I got a cost-centre for my client, and have pulled in new extension business for them, they are "delighted", and I get more work. In those type of circumstances, trust and business understanding trump "contracts", (IMHO).

Bruce

Bruce Graham

Garry Hargreaves said:

In Australia......for every 6 mins slot, billed hourly.

Usually something like a 1:10/12 to 1:20+ ratio for a "from scratch" build.

That assumes the assets are ready and/or very quickly available on request, and agreed by all parties.

Can be a much higher ratio for multiple rebuilds and changes of plan if e.g. the client changes their mind - which does happen....

Bruce

Sheila Bulthuis

Helena Froyton said:

How do you charge for your work?  Per hour?  Per project?  Do you find it hard to estimate how much time a project will take?

Yes, yes, and yes.  =)   I prefer hourly billing for anything that’s difficult to scope – e.g., “We know we want some training on X… but that’s all we know.”   I think fixed fee projects can be great when you’re able to really define the scope – but I’ve had a few occasions where I misestimated (and then too bad for me, I just have to live with that) or the client keeps expanding the scope, in which case I have to decide how much of that to just absorb vs. when I need to do a change order – which I hate doing because it can feel to the client like you’re “nickel and diming” them. 

Often I’ll do the up-front analysis and design on an hourly basis and then quote the development and implementation at a fixed fee based on that initial work. 

Sheila Bulthuis

Garry Hargreaves said:

If your project contact leaves your client’s employment and nothing is written down.....  Well your projected income could be exposed.  Contracts (and previous payments of your invoices) serve as a record of intend of the client.

 

Really good point.  Sadly, this just happened to someone I know – it was a really big project, and the client is now refusing to pay her final invoice because of issues that have nothing to do with her.  The person who brought her in – and could arguable “talk sense” into the executive refusing payment – is no longer there.  She does have a contract, but unfortunately because of the way she wrote it doesn’t really protect her to the extent that she needs it to. 

I agree that this is something that happens very rarely, but it can happen…  (And your outlook might vary by geography, too – I live in one of the most litigious states in a very litigious country, so  I try to make sure my contracts and liability insurance protect me not only in terms of getting paid, but also in terms of someone being able to successfully sue me!)

Belen Casado

Hi all,

Interesting discussion!

I think that there're 2 aspects of a contract:

  • to stablish how much you will earn/ they will pay
  • to set a scope

For the 2nd one I prefer a document, called "Project description" where I put what I understood from the client, and they validate it. Both the client and me discuss the document and change it till it's OK for both. This document is like a scripture to me: I do nothing that is not writen there, or if the client wants something that's totally out of the scope, I set a new scope with a new budget.

For this, the budget, I think it's important to have a contract if you see that the client is trying to pay less, etc. In my culture, I think that nobody trusts anybody regarding number of hours. 

Hope it helps,

Belen

Ken Chang

Gail Chambers said:

Can anyone direct me to an eLearning contract. I have been searching online and not found anything. 

Thanks.

Gail


I don't know if there is a specific eLearning contract--rather most freelancers use contracts that current graphic designers and webdesigners use and modify them for eLearning.

Site Point has a good book about Freelancing and Freelancing contracts:

http://www.amazon.com/Principles-Successful-Freelancing-Miles-Burke/dp/0980455243/ref=sr_1_2?ie=UTF8&qid=1365016833&sr=8-2&keywords=freelancing