RE: client refuses content responsibility - Follow-up

Subject: RE: client refuses content responsibility - Follow-up
From: "Sharon Burton" <sharon -at- anthrobytes -dot- com>
To: "'McLauchlan, Kevin'" <Kevin -dot- McLauchlan -at- safenet-inc -dot- com>, "'Will Husa'" <will -dot- husa -at- 4techwriter -dot- com>, <techwr-l -at- lists -dot- techwr-l -dot- com>
Date: Wed, 7 Oct 2009 08:45:31 -0700

I agree with Kevin on this. In the last recession, I took projects that I
should never have taken because it was money. This one has flags all over

What they added could also mean that they can review it and not like it. And
not pay you for it.

Get them to add Kevin's wording. If they don't want to do that, then walk
away. Nothing good will happen on this project.


Sharon Burton
MadCap Software Product Consultant
Managing your content, one topic at a time
IM: sharonvburton -at- yahoo -dot- com
Twitter: sharonburton

> -----Original Message-----
> From:
> techwr-l-bounces+kevin -dot- mclauchlan=safenet-inc -dot- com -at- lists -dot- techwr [mailto:techwr-l-bounces+kevin.mclauchlan=safenet->
inc -dot- com -at- lists -dot- techwr-l -dot- com] On Behalf Of Will Husa
> Sent: Tuesday, October 06, 2009 7:12 PM
> To: techwr-l -at- lists -dot- techwr-l -dot- com
> Subject: RE: client refuses content responsibility - Follow-up
> I would like to thank all of you who responded privately and publicly.
> The CEO added this line to the contract:
> "The User Guide is subject to the review and approval by <company>."
> Well, it's an improvement.
> Be seeing you,
> Will

Make that '...shall be subject to review..."

The way it's worded now could be interpreted as "the company is allowed to
review if the company wants to." Doesn't get you off the hook, nor even
suggest that you cared that much.

And later in court, with their asses in the process of being sued off,
they'd say:

"Mr. Husa's company came well recommended and he provided examples and
assurances, so we felt it wasn't a requirement to perform a formal review,
since he's such a responsible technical writer."

In other words, "Mr. Husa is responsible for <name the tort>. We trusted his
professionalism." That wouldn't get them off the hook, but it would very
effectively spread the mess to you, since (with the current wording) you
would have made no attempt to safeguard yourself from it.

If, on the other hand, the paragraph in the contract says "The User Guide
_shall be_ subject to review and approval by the company", then the
'reasonable man' test would have it that the company must approve (and
therefore, must have reviewed to their satisfaction before approval...)
before the document is permitted out the door under their auspices. Or, at
least, that you reasonably could have thought that that was the arrangement.

An even better wording would be something on the order of:

"The company agrees to review the User Guide for any technical errors or
omissions (a function generally called Quality Assurance), and indicate in
writing the company's acceptance of the document's correctness and
suitability, as a condition of the release of the document, failing which,
ownership, control and copyright in the document shall remain with Mr. Husa,
his heirs and assigns."

In other words, they can't make any use of the document until they sign that
they've reviewed it and accepted it as suitable. Also, you can then sue
them if they don't sign, but they go ahead with it or if they get somebody
else to re-work something that is still your property, without major

You or your lawyer might care to reword, but the key phrases are "company
agrees" <what you need them to do> and "failing which" <followed by the
remedy that you require... and you DO require an explicit remedy if they
fail to do what "Company agrees">. You can't leave such things to chance or
assumption, in a contract.

People-who-aren't-lawyers often think that the law is (or should be?) very
black-and-white on most issues. Contract law and torts and their
interactions are very onion-ish. Think layers of protection.
But at the very least, contracts should contain statements as to what is
expected from both sides as fullfillment of their obligations, and remedies
for any failure of those obligations. Else, it's not worth the air it's
printed on.

- Kevin (IANAL*)

* [I] [A]m [N]ot [A] [L]awyer - nor do I play one on TV. The above is
discussion not legal advice.


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client refuses content responsibility: From: Will Husa
RE: client refuses content responsibility - Follow-up: From: Will Husa
RE: client refuses content responsibility - Follow-up: From: McLauchlan, Kevin

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