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> -----Original Message-----
> From:
> techwr-l-bounces+kevin -dot- mclauchlan=safenet-inc -dot- com -at- lists -dot- techwr
-l.com [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 changes.
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.
Speaking of assumptions, everybody (including me) is assuming that the subject of the document is such that there could indeed be nasty liability. Like danger to life and limb, health risks if the product is not used properly, significant chance of property damage if the product is not used properly, possibility of significant loss of revenue or downstream exposure to liability if the product is not used... blah blah.
Lots of people, to this day, manage to do business on a handshake, without all the legalese. They also like to play roulette, but ... that's not your situation, right?
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