Legal question

clause:

Sounds like a screw-job waiting to happen.

I've found that the most common way these things are done are with progress payments based on defined goals. Once you've hit that goal and gotten paid, there ain't no handing it back. So clauses like that do not belong in those sorts of contracts.

e.g. Milestones might be:

- Design evaluation & initial prototype (30% payment)

- Functional production unit demonstration (50% payment)

- Full documentation and hand-over (20% payment)

Dave.

Sometimes this sort of thing appears when contracts that are designed for basic items with low technical risk, like buying nuts and bolts, are applied to more technical situations like yours. If that's the case, then they may not understand your business, another reason to give them a miss.

clause:

Advice: GET A LAWYER! One who knows consulting contracts. You are in over your head on this one, and if you continue you'll probably be screwed in the end.

clause:

It may be time to get a lawyer to look at it.

You should also ask your self "are these honorable people?". You can never trust dishonorable people. You can sometimes trust honorable people. Some people use contracts that are mostly "boiler plate" that they don't really care about.

Normally you want clearly stated milestones that break the task into or sections. If you are doing a hardware design or writing software you want a first step for just writing and agreeing to the specifications if they don't already exist in a formal form.

clause:

Maybe they've been burned before.

Suggest you send it back with milestones and payments based on meeting milestones (or define those in the first phase of the work if the goals are not currently well defined). IMHO, forget the "certain percentage" thing-- that's like planning to fail. Also, they shouldn't own anything until that part of work has been paid for *completely*. Best regards, Spehro Pefhany

--
"it\'s the network..."                          "The Journey is the reward"
speff@interlog.com             Info for manufacturers: http://www.trexon.com
Embedded software/hardware/analog  Info for designers:  http://www.speff.com

clause:

be

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The contract is not the agreement. It is written representation of the Agreement. And as such, it should state the parties respective expectations and obligations clearly.

My advice would be to further negotiate the deal as it sounds like this is not the agreement you want, and thus, it has no business in the contract.

You can always walk away, but no amount of lawyering is going to change expectations if they're truly out to get you. And if you believe that is the case... run.

-mpm

I wouldn't sign such a contract. There's too many things that can go wrong in a project that aren't under your control.

Get a lawyer who knows this stuff, and be prepared to pay for the value that s/he provides. Figure that if there's a clause that'll screw you that you _can_ understand, there may be five more that'll screw you that you haven't caught.

Don't hesitate to just strike that clause and send the contract back with a note that says "This is unacceptable. Let's negotiate." Remember that (in the US at least) there are very few protections for business-to- business contracts. Unlike a "consumer", a businessman is expected to have a functioning brain. If it's not blatantly illegal, and if the other guys have done what the contract says they'll do, then what you agreed to in writing is what the courts will enforce.

As a corollary, don't believe it when some middle manager says "oh, that's just our lawyers -- we'll never stick you with that". They may mean it, and believe that that's what will happen, but you have to ask yourself what will happen when that guy is fired for laxity and they put a lawyer in charge of the group for a bit.

--
Tim Wescott
Control systems and communications consulting
http://www.wescottdesign.com

Need to learn how to apply control theory in your embedded system?
"Applied Control Theory for Embedded Systems" by Tim Wescott
Elsevier/Newnes, http://www.wescottdesign.com/actfes/actfes.html

clause:

The WFH declaration pertains to IP ownership:

Some snipping done above to save space.

Thanks everyone, I did not expect such a huge response. It seems everyone has either been bitten before or has been carefully navigating around such pitfalls in the past.

We do have milestones setup at the moment, but some design parameters are not clearly defined and that worries me. I suppose its best to submit prototype/work for approval at each step and demand payment before issuing source code/schematics etc. while being carefull not to reveal too much. Once payment is made that step is "locked" and no refund is possible.

Mark

Some folks I know will write it into the contract that they own full rights to the work until the contract is fully paid. If you're not dealing with a huge corporation this works because (in theory at least) it is straightforward to get an injunction to get them to stop shipping product with your IP.

As others have stated, though, if they're out to screw you, they'll find a way. So if the bad language is just misplaced boilerplate then have it stricken, but if it's there because they want to play games, then walk.

I don't think I would _ever_ sign a contract that required me to give money _back_ if at some point the customer decided they didn't like it. You'd spend 10 times more money litigating such a clause than the actual contract would be worth, which means that they could just _threaten_ to take it to court and your attorney would advise you to suck it up and pay out.

--

Tim Wescott
Wescott Design Services
http://www.wescottdesign.com

Do you need to implement control loops in software?
"Applied Control Theory for Embedded Systems" gives you just what it says.
See details at http://www.wescottdesign.com/actfes/actfes.html

Bingo. Read any amateur contract and it's a history document of everything that's ever gone wrong for the author. Those are the kind of clauses that (as someone else mentioned) you call them on and they profess to have NO INTENTION of using against you. They put that in there to save them from Evil People who Wronged them in the past. It will still bite you if you sign it. When there's a disagreement, guess who is suddenly Evil?

--
Ben Jackson AD7GD

http://www.ben.com/

You should have a change order process so that when you get that inevitable telephone call to "stop all the work so we can do this (or that) differently" you can still be reimbursed for your time spent, the time required to change the design and the time required to re-mobilize the project.

--
Joe Leikhim K4SAT
"The RFI-EMI-GUY"©

"Treason doth never prosper: what\'s the reason?
For if it prosper, none dare call it treason."

"Follow The Money"  ;-P

When doing milestones I like to lay the "base running rule" on them something like this; Failure to complete this contract by the company will result in payment of the next milestone plus one more" by said company. Funny how the companies easily sign this clause but then want to terminate in the middle of the contract. I have recouped extra milestones on two different contracts and estimate that >10% of all contracts get terminated by the company. It goes without saying that all payments are final, no recourse. Cheers, Harry

Harry,

I'm going to assume that the contract terminations don't have anything to do with your performance :-), so let me ask -- why are so many terminated? Do the companies run out of money? Or they're so fickle they completely change design strategy mid-stream? Or...?

I've only had two in my total lifetime...

(1) An asshole manager I directly clashed with (you know the kind... just like your present boss :-)

He pulled the plug without paying me.

A year later he was gone and the company needed more work.

They coughed up what I was owed before I'd even visit them ;-)

(2) A change in management allowed the new manger to install his own friend as consultant (hourly consulting situation).

I believe adding Harry's terms (with some tweaking) might be beneficial to me in the future.

...Jim Thompson

--
|  James E.Thompson, P.E.                           |    mens     |
|  Analog Innovations, Inc.                         |     et      |
|  Analog/Mixed-Signal ASIC's and Discrete Systems  |    manus    |
|  Phoenix, Arizona            Voice:(480)460-2350  |             |
|  E-mail Address at Website     Fax:(480)460-2142  |  Brass Rat  |
|       http://www.analog-innovations.com           |    1962     |
             
         America: Land of the Free, Because of the Brave

Thanks for the input Jim.

Here's a good question for you: What do you think of Hans Camenzind's "semi-custom" design approach

where he uses the same basic IC over and over with various preset numbers of transistors, resistors, caps, etc. and then just changes the metallization layers (the "wiring") to effect the particular design he's doing? Kinda like the ultimate in electronic breadboarding... except you're doing it in an IC. Do you have many would-be customers with designs where that would be a viable solution?

---Joel

Thirty years ago the array was the equivalent of what is now done as a "shuttle"... many different designs done on one wafer... MOSIS and just about every foundry in the world does this.

"Wiring" an array is rarely a very efficient use of Silicon real estate.... particularly when the resistor values or device types are not what you really wanted, or _where_ you wanted.

...Jim Thompson

--
|  James E.Thompson, P.E.                           |    mens     |
|  Analog Innovations, Inc.                         |     et      |
|  Analog/Mixed-Signal ASIC's and Discrete Systems  |    manus    |
|  Phoenix, Arizona            Voice:(480)460-2350  |             |
|  E-mail Address at Website     Fax:(480)460-2142  |  Brass Rat  |
|       http://www.analog-innovations.com           |    1962     |
             
         America: Land of the Free, Because of the Brave

Hi Jim,

"Jim Thompson" wrote in message news: snipped-for-privacy@4ax.com...

It seems like that's considerably more work, though, since you're doing "placement and routing" rather than just "routing," isn't it? Plus it seems like you have many more opportunities to screw something up if this if your first IC design? ;-)

I suppose it's not necessarily more expensive since you're only paying for a part of the wafer for your ptototypes though, eh?

---Joel

Exar spent a great deal of time and money stealing from Hans Camezind's Interdesign. Exar considered it a profitable business. I recall Exar was doing product for SSM using Exar's ripoff of the Interdesign array.

Incidentally, I think this is really only a good technology for bipolar semicustom. Impedances are lower with BJTs, and can take the stray wiring capacitance.

A few companies have done direct e-beam writing for low volume custom designs (all layers) or just arrays (top metal).

was the only hit I found, but these companies come and go.