User Experience (UX) design is a bedrock part of software and website development. It includes the study and optimization of the user’s experience – the totality of the ways in which humans interact with and experience products. (Definitions of UX vary; in the classic definition by designer Don Norman, it includes a person’s interaction with not just a product but the company that provides it as well). Software companies employ UX designers in a range of ways including market research, the development of product business requirements, wireframing, prototype design, and watching behind two-way mirrors as testers struggle to navigate interfaces.
UX designers are often contracted freelancers or agencies rather than company employees. The blueprint for a successful company-designer relationship is the contract between them – the document that establishes a road map for their work and balances their respective needs for compensation, risk mitigation, and quality assurance. Whether you are a UX designer or the company hiring her, you’ll want to ensure your agreement includes four key provisions. This article is your guide. If you’re the party drafting the contract, include these; if you’re presented with a contract that omits them, add them.
1. The agreement should clarify the deliverables and services that the UX designer is providing.
A UX design agreement needs to answer the question: what is the company buying from the UX designer? This varies by project, the client’s needs, and how the designer works. The designer usually delivers a combination of wireframes, technical specs, business requirements, research reports, descriptions of personas, sitemaps, user journeys and flows, style guides, and graphic designs. All of the above are intellectual property (“I.P.”) protectable by copyright law.
The contract should make clear which deliverables are being produced for the client. This protects both the designer and client. As a designer, you want to draw clear lines: if you specialize in persona research but do not produce wireframes, your contract needs to say so. You likely understand the work and the range of deliverables better than your client – that’s part of the reason they’re hiring you – so make clear what your fees do and do not buy them. If you are the client hiring a UX designer, make sure that your internal stakeholders have detailed to you precisely what UX deliverables they need. (At a minimum, this includes consulting your product design team, but it may include interacting with your marketing and sales teams as well).
In addition to the I.P., the client is buying the designer’s professional services – the valuable skill, judgment, and insight that the designer brings to the project. This is not a deliverable that can be seen or downloaded, but it is just as important as the written materials. As we’ll see below, the contract should also address the professional services clearly.
2. Handle intellectual property appropriately.
Both the UX designer and her client will want to protect their rights to I.P. As noted above, all of the written and visual deliverables are I.P. protected by copyright. Legally, except in the case of company employees creating I.P. within the scope of their employment duties, copyright remains with the person or company that created the deliverables until there is a written agreement that assigns (transfers) the copyright to another party. As the client, therefore, you cannot use, store, or modify the UX design deliverables until you have secured the I.P. rights to do so. Typically the client will insist on owning the I.P. outright, and generally designers are willing to assign those rights. This is accomplished by a simple I.P. assignment clause in the design agreement.
Some designers prefer to grant clients a license to the I.P. rather than assigning it wholesale. That approach is usually acceptable to clients as long as the license is irrevocable, worldwide, and royalty-free, and properly defines the scope of the ways the client will need to use it in the future. But that is easier said than written; it is easy for clients to draft the license improperly in their haste to onboard the designer, resulting in some risk of their unauthorized use of deliverables in the future. All else equal, therefore, we recommend that designers assign the deliverables outright.
The designer should consider negotiating a provision in the contract preserving her ability to show her UX design work in her portfolio. A “publicity rights” clause allows the designer to do so. This clause should be carefully defined as an exception to the contract’s confidentiality provision. Some clients with exceptional secrecy concerns will refuse publicity clauses. But even then, once the project is complete the designer can often get that permission by simply asking.
3. Establish the appropriate warranties and indemnifications.
UX design agreements typically contain at least two warranties benefiting clients. With respect to the I.P. – the written and visual deliverables, from wireframes to journey diagrams – the designer provides a warranty of non-infringement. This is the designer’s promise that she either made all of the I.P. herself or secured the necessary third-party licenses for any tools she used to create it. This warranty is a standard clause that reasonable designers will be happy to include.
With respect to the designer’s professional services, the agreement should also clarify the designer’s warranty – that is, how well she must do her work. We recommend the “professional and workmanlike” or “commercially reasonable” standards. These promises commit the designer to reasonable industry skill standards, but avoid holding her liable for minor errors. Pro Tip: we have seen clients ask our UX design clients to commit in writing to “best in class” standards. We recommend designers push back on this type of language. It is nearly impossible to be sure what these standards even require, let alone meet them.
4. The UX design agreement should make clear what third-party tools will be used and who will pay for them.
Most UX design work includes some combination of tools like Balsamic, Pixate, Origami, and Invision. The designer is often more familiar with these services than the client. The contract should specify the tools that will be used or clarify which party will choose them.
The agreement should also clarify whether the client must invest in its own accounts to use any of the tools. Some tools allow designers to extend their licenses to their clients; others do not, and they can be expensive.
Conclusion
The list of clauses above is not exhaustive. Each working relationship between a UX designer and her client is different. By including the key clauses above in the contract, the designer and client can ensure that some of the most important and most often overlooked issues are addressed preemptively.
Adam Nyhan represents UX designers, software developers, and the companies that hire them. He is an attorney in the Software & Startups practice group at Perkins Thompson, a business law firm serving clients throughout the United States and in other countries. Adam can be reached by email or by phone at 207-774-2635.
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