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Old 04-12-2005   #1
Phoenix
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Can an SEO/SEM Company Own Your Meta-tags?

Of course not in my opinion! Found the thought of this a bit disturbing. A friend of mine came to me last week with details of getting burned 6 months ago by a well known SEO company, with a story about ridiculously high payments, false promises, and eventually lawyers to straighten out the matter. He wanted to know what to do. Regardless of any of that, there was a line that he sent me straight out of the contract that they requested he sign. It said effectively:
Quote:
"The Meta tags provided by ABC Company are the property of ABC Company and protected by copyright law. As a client, you may continue to use the Meta-tags and work provided solely for the website after the terminations of this agreement as long as payments are made as agreed"
Talk about needing to read the fine print to prevent this type of abuse.

So are you violating copyright law if you continue to use the meta-tags without paying past the termination of the contract? Is this possible legally to include that in a contract? It would seem that the said ABC Company could technically have the ability to report the client site to a search engine for copyright infringement (if they didn't pay) and have it taken down. Scary! Why would a company include this in the contract in the first place? I am guessing to cover their butt later on, or that some savvy lawyer found a loophole that would allow the creation of a bargaining chip to get them to pay. This raises other questions, like if the client site got penalized or banned for tactics relating to the created meta-tags (if at all possible these days) could they sue the SEO company because they are the copyright owner? Don't know, but thought I would mention it.

In my work, the site owners get all rights to the content in the meta-tags as soon as he pays for the service. There has never been a question about it. I don't want to own any rights to the information. From what I have seen most SEO companies establish something to the same effect. It's as if you are hiring a copywrite to create content on your site, you are paying for it, not paying for her to place it on your site and for her to continually charge you monthly for its use. You are wasting money if you do.

I did some research on trademark infringement in meta-tags back in Decemeber. The take homes from a lot of the cases I reviewed was "The court summarized in its decisions "that a trademark is a trademark even if it can only be read by a computer." The site owners who placed whatever infringing information in the meta-tags were responsible for their use, not another company, individual, or company that created them.

Any thoughts on this?
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Old 04-12-2005   #2
rcjordan
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>Any thoughts on this?

I think copyright applies. Crafting a meta tag is no different than crafting content, as I see it. In fact, if an engine shows, say, meta descriptions, then they are valuable in drawing the click and bringing in the traffic.

I host articles and even whole sites for some communities (chambers of commerce, tourism authorities, etc.). They own the keystrokes they provide and if they should decide to leave, that's exactly what they get back.
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Old 04-12-2005   #3
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I just did a quick check on copyright.gov and found something that might shed some light.

Quote:
(b) Works Made for Hire. In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
Assuming this is covering written work such as title/meta tags, and where the contract was signed, it seems to be legal. So, its very important to read the fine print.

Anyone covered this issue with a lawyer in the past?
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Old 04-12-2005   #4
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No expert me, and surely no lwayer, but anything can be put in a contract.


http://www.copyright.gov/ is the US government copyright site, and while it is no substitute for a professional legal opinion, it might help. I would say seek legal opinion.

On the theoretical topic of copyright and meta data, I have no answers, but I do have some questions to ponder on what makes meta data copyrightable by the SEO company. http://www.copyright.gov/help/faq/fa...tml#permission provides some interesting background on the topic, and in the light of that page, I have some questions:

- how tags are written is surely vital. If, for example, Titles used existing content like product names, and descriptions used the first paragraph of existing content, then wouldn't the copyright fall to the site owner, as that was always their content to begin with?

- If meta tags was individually written / crafted for every page, with minimal content taken directly from the site, that would be copyrightable.

- Changing the tags is probably trivial on most sites, and the amount that is required to be changed to be considered "new work" is an interesting question. Theoretically, any SEO that worked on a site would craft similar titles and keywords tags. Descriptions should vary greatly, as they describe a page, and there are so many ways to do that, but keywords and titles have a limitted number of permutations using common keyword research tools. So will redoing metadata, even if it ends up very similiar, break copyright?

- If the new writer never saw the old copies of the metadata, then can it be derivative? Back in the day, the BIOS was recoded by an alternate firm (I think IBM did the original BIOS). The new firm had one group look at the code, line by linre, and described what it did. A second group, that never saw original BIOS code, wrote an alternate BIOS based upon the first's observations. It was original work by the second team, as they nnever saw the original code.

Interesting topic, and I hope your friend gets it all sorted out.

Last edited by projectphp : 04-12-2005 at 10:03 PM.
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Old 04-13-2005   #5
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Descriptions could reasonably be expected to be rewritten with a new SEO and titles would presumably differ but keywords? If the best keywords are in the tag then its reasonable to say that any other good SEO would put the same keywords in the tag. I'd like to see them sue over that whatever contract has been signed

I also suspect that unless the SEO provided a clean, tag free, copy of the site at the end of the contract any court would give 'reasonable time' to make the changes - which could be a long process if you have a lot of pages.
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Old 04-13-2005   #6
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Legal or otherwise, to my way of thinking, it is a genuine scam - and I don't think I need to explain why.

Phoenix, I know that you aren't going to state the name of the seo company here, but I am very curious to know who it is. If you would PM the name to me, I'd appreciate it. If you prefer not to, I understand, so just ignore this request. My interest is purely out of curiosity, but it would also help in the future when advising people about other SEOs, and I do get asked.
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Old 04-13-2005   #7
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Enforceable?

How would this be enforced? Phoenix, should you terminate business with this SEO, would the SEO company have to get a court order to have YOU remove their "property" from your site? I mean, to be enforceable, I would think that's the only way for them to do that - which would mean more $ and time on THEIR end to enforce this clause.

I dont know about the legality of this but as business practicality, is this a good thing? To me, it sounds like this SEO is like the RIAA - too insecure to deal with competition and won't let go. Instead of structuring the opportunity cost of losing the meta-tags, they are saying - "it's mine!" and willing to put extra money in some Pyrrhic legal battle.

As business practicality, I don't think businesses that threaten legal action make customers feel very good - especially if it's a service-based business. And for a SEO company to do something like this, it can backfire; plus I see the only real recourse for them is litigation.

That's what it looks like to me.
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Old 04-13-2005   #8
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The only valid reason I could see for such a clause is in the event that the company does not pay the SEO and wants to make off with the benefit of the optimized pages.

I think it is understandable for the SEO to have such a copyright clause which EXPIRES or transfer of ownership occurs once contract expires and no money is owed to the SEO.

As an SEO, we look to have some protections against working to optimizing a site, only to have a client refuse to pay. You can't take back top rankings, unless you sabotage the site (something certainly don't agree with in any situation.) In our case, our protection is pre-payment for services.
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Old 04-13-2005   #9
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Anything that can be copyrighted can be enforced in a contract.

The question, then, is whether or not the metatags in question are copyrightable.

The reason I'm wondering is because I constantly see SEO companies put in these HUGE multi-section meta-tags, including Dublin Core, and some that were apparently made up on the spot, in order to impress their client into thinking that these are the magical key to rankings. They are not.

Unless you have an internal search engine that uses them, you should not have DC tags on your site. They won't hurt you, but they also won't help. It's a common place for people to attempt keyword stuffing and usually sets off a warning signal for me when I see them. I have only one client with a legitimate use for them (the Canadian Government). Not one other does. They also don't help your SE rankings for major search engines one bit.

Additionally, several tags in the header section are NOT metatags, the <title> tag being the first and most important one coming to mind. It's not a meta tag - never has been.

This only leaves the keyword and description meta-tags as SEO relevant.

Of the keyword list, only the ones that did not exist before and do not include your companies name could possibly be copyrighted. The act of researching and compiling a keyword list is, IMO, copyrightable, as long as the results are non-obvious (ie the ones that would have been put in without research) and substantial. Keep in mind that you can copyright items requiring human ingenuity, but not pure facts.

Arguably, you could take the keywords, change the order, and avoid the copyright on the list in question (if it exists). Why? Because if the order is not important, then it's a list of facts. Facts can't be copyrighted, only their presentation. You can still protect your keyword research through other means, but not usually copyright law. If that's the direction they went, it was a poor legal choice.

Now, using someone elses trademark in your metatags, that's a whole other ball of wax. Danny Sullivan wrote a fairly nice article related to it: http://searchenginewatch.com/resourc...le.php/2156551

But that's not the point here. Though I would point out that if they are attempting to copyright (own) your metatags and your trademark is one of the words, then they may be in violation of your trademark. Only you own that! You may want to sue them for attempted misappropriation of your trademark...

This leaves only the description metatag. This is an area where true human ingenuity can come into play. If the description is purely a description, then it may be factually based enough that it's not copyrightable, but that's not the strongest argument that could be made. Additionally, a very short description that is purely informational may also not be copyrightable.

In general, however, I would tend to lean towards an assumption that a description metatag is copyrightable unless you have proof it's not. I'd like to be more helpful in this case for you, but I know how hard it is to craft a good description and I would personally consider it to be copyrightable.

So you may have to change your descriptions. Now it's a business decision. Will doing so cost you more or less than continuing to pay the SEO company in question?

Cheers,

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Old 04-13-2005   #10
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I think it's a smart cover your @$$ move if at the end of the payment term the site owner owns the content. Obviously in this case they were basically leasing their tags from the ABC seo company.

If you fail to read the contract then you can only blame yourself. If your friend missed that clause he's lucky there wasn't a "miss a payment and you give all rights and ownership of your site up". lol

For companies that spread their costs out like we do over a 6 months period then it's like taking out any loan, you need collateral. And I can see where a lease to own clause would be a smart move. Nothing unethical about that if they've signed the dotted line.

Phoenix, I too would be interested in the name of that company like Philc could you PM me the name too

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Old 04-13-2005   #11
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If the description is copywritable, then how many advertising copywriters missed out on copywrites?

It seems to me that if you are paid to perform a service, that's all that you get - pay for performance. An SEO is paid for a specific purpose, a specific task; hired for specialized knowledge. When it's done, it's done.

I don't know for sure, but it seems to me that no SEO can dictate these kinds of conditions to any big client.

But - is there any precedence set for this in the advertising industry? The closest relation SEOs have, in my opinion, is to ad agencies. Now, do ad agencies control the content that they produce for a client? If so, then what copywrite laws apply and how are they applied? If not, then what basis could an SEO use?
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Old 04-13-2005   #12
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Quote:
But - is there any precedence set for this in the advertising industry? The closest relation SEOs have, in my opinion, is to ad agencies. Now, do ad agencies control the content that they produce for a client? If so, then what copywrite laws apply and how are they applied? If not, then what basis could an SEO use?
Good questions!

Here are the rules. These are not really in question, but how they are applied, and when, is:

1. Unless the clause in question is illegal or the person signing it is legally incompetent for some reason, anything you sign off on in a contract overrides the both the common law and laws that are intended to deal with situations where there is no contract, including the following points.

2. The work that a servant performs is owned by the master (old language, I know - think "employee" and "employer" in this case).

3. The work performed by an independent contractor, is owned by the contractor, not the client, unless a contract states otherwise.

4. In some cases, a contractor can be considered an employee for these purposes if they are given very little opportunity to act independently. If they are told exactly what to do and how to do it, they can be considered an employee for this purpose. If they use independent judgement, then they are considered independant. Most SEO companies would be considered independent contractors. Most "in house" SEO's and webmasters would be considered employees.

5. Certain specially commissioned works for hire by an independant contractor can be owned by the client, but the contract has to say it's a work for hire ahead of time and this area is very tenuous.

6. The smart way to write a contract with an independant contractor would be to put in that all copyrights will be owned by the client once final payment has been rendered, or something to that effect.

In short, I believe that unless this clause:

Quote:
The Meta tags provided by ABC Company are the property of ABC Company and protected by copyright law. As a client, you may continue to use the Meta-tags and work provided solely for the website after the terminations of this agreement as long as payments are made as agreed
...is translated in context to mean that after you terminate the contract all outstanding payments must be caught up, then the SEO company owns your description tags (at least) and has the right to prevent their use.

This clause clearly indicates that the SEO intends this work to be a license to use, rather than a transfer of ownership, and since that is in accordance with current law regarding independant contractors, it's a pretty firm position.

While I'm thinking about it, although the contract does not mention <Titles>, it would normally also be assumed that these are owned by the contractor, assuming there was enough human ingenuity involved for copyright law to apply. In this case it would boil down to the text in question and it's ability to be copyrighted.

This is why it's important for SEO's to try to maintain their status as independant contractors and for clients to try to make sure that they own the work once final payment is made, and that there IS a possibility of a final payment (not ongoing forever!).

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Old 04-13-2005   #13
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no kidding?

So let's say I hire an seo company to optimize my site. They do the research and determine the best keywords to target in my meta keywords, then I fire them for whatever reason. Now I decide I'm going to do the keyword research myself. I read some articles on SEW, do the research and come up with basically the same batch of keywords they did.

Would a clause like this make it illegal for me to use the same keywords in my meta tags? This seems crazy.
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Old 04-13-2005   #14
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Copyright law is clear that two identical (or near identical) works can be independantly owned and copyrighted. Unlike patents, there can be two (or more) owners of the same presentation as long as the human ingenuity used in it's creation was truly independent and the work was non-obvious in nature.

This allows for "clean room" reverse engineering, where programmers who have never seen the competitors code in question can create code that does the same thing, and pehaps even overlaps to a large degree, without running afoul of copyright law. They even own the copyright on their work. This is very common for things like "compatible" drivers and even alternate operating systems like the DR-DOS vs MS-DOS case, where both ran almost all the same programs.

So yes, as long as you could prove that you came up with the list independantly, you would be fine. Just make damn sure you can prove it. Better yet, have a different SEO company do it who has never seen the keywords in question.

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Old 04-13-2005   #15
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Can a contract created by an SEO company or client (for that matter) be created that violates other laws that a written contract cannot supercede? I don't mean the clear example of a contract that states explicitly that you will be paid (or that you must pay) in human ears (...story of David and Saul comes to mind....), but perhaps an overzealous SEO or client violates other laws or other legal precedence? Or do all contracts need to be reviewed by an attorney before made official?

Also, I'd like to hear others comment on whether or not this is good business practice? To me, it seems a little like holding your client hostage. I mean, no guarantee that the tags are the secret formula to their work, but just having something like that leaves people in a tizzy. Get me?
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Old 04-13-2005   #16
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Cryptblade, I'll take that one at a time,

Quote:
Can a contract created by an SEO company or client (for that matter) be created that violates other laws that a written contract cannot supercede? I don't mean the clear example of a contract that states explicitly that you will be paid (or that you must pay) in human ears (...story of David and Saul comes to mind....), but perhaps an overzealous SEO or client violates other laws or other legal precedence?
There are two things that a contract should be - valid and enforcable.

Theoretically, all contracts, even illegal and immoral ones, are valid as long as the agreement is clear and the parties are capable of coming to a "meeting of minds".

However, there are some contracts that, although valid, a court will not use public resources to enforce. This includes illegal contracts (a contract killing, for example, is a valid contract, but don't expect a court to enforce it!), and contracts deemed against the common good. Contracts for human organs, suicide pacts, etc.

Another type of contract often deemed against the public good is one that is manifestly unfair under the circumstances. This one is on a case by case basis, however - normally courts really hate interfering with contracts. An example would be a contract that had a clause saying that you must pay a fine if you are late, but doesn't have an "acts of god" clause and a hurricane hits, preventing the contract from completing on time. I would not rely on this, though - you are usually assumed to know what you are getting into when you sign a contract.

Note that these are still valid contracts - it's just that if you attempt to present one to a court you won't be able to get it enforced, and they may actually throw you in jail for trying, in some cases.

Here is an example closer to the subject at hand - employment law. It's illegal for an employer to make you work for less than minimum wage unless you fall within certain jobs (management, farm help, babysitting, etc - this is on a jurisdiction by jurisdiction case, there is no general rule). You can sign a contract saying that you agree, and you may be willing to follow through just to get the job, and the contract will be considered valid, but the government will not enforce that part of the contract, and will usually fine or punish the employer if they try.

This type of legislation is intended to protect the powerless, and thus the ability for the powerless to get themselves into an even worse situation is taken away from them (now it's not their fault, so there is no reason for the employer to take it out on them).

However, as a general rule, it's assumed that 2 consenting, informed parties are entitled to agree to whatever they want, and that the courts should keep their noses out of it as much as possible.

So usually, you are on your own, especially if it's about money, rather than someones life or personal safety.

Quote:
Or do all contracts need to be reviewed by an attorney before made official?
They are valid and enforcable upon agreement (they don't even need to be in writing). However, trying to get a verbal agreement enforced is so hard it's not worth it, in practice. Courts know that many times a verbal agreement is so vague, and that the parties often have such totally different ideas, that it's often hard to claim that there actually was an informed agreement.

Additionally, since you are deemed to know what you are doing, you are entitled to screw yourself over most of the time if you want. This makes it a really good idea to get a lawyer or use a template that has been approved, in order to avoid the aformentioned self-screwing...

So while it's not *required* to be in writing or reviewed by a lawyer, it's a really good idea. Critical, in my opinion.

Quote:
...whether or not this is good business practice? To me, it seems a little like holding your client hostage
.

I'm not fond of it as a business practice, but it is a legitimate one, as long as the client is informed ahead of time. For example, there are people I've run across personally who have successful websites that they haven't even *seen* for a very long time, much less made a decision on.

They are busy running a brick and mortar business and want to wash their hands of the website. For someone like this, they expect the SEO and web designer to do everything, and thus put the success of the website completely in their hands. In a case like this, an ongoing fee structure is not only appropriate, but may be necessary. It might even be unfair for the owner (who did nothing, and decided nothing) to claim that their work belongs to him, depending on the circumstance.

However, not one of my current clients would agree to such a thing - they are very interested in their website and it's health, and sometimes remind me several times a day! In their case, they would never agree to me owning any part of their website. I'm not only fine with that - it's my preference.

It all comes down to whether or not the client knows what they are getting into, knows their options, and consents and agrees to the contract.

Ian
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Old 04-13-2005   #17
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Ok real life scenario

I'm a record label (seo/marketer)

You come to with with some songs (your webpages) and talent but need my help to make it big (marketing exposure).

I add some more songs (pages) to your songs (pages) but retain the rights since I wrote them and all you're doing is singing them. You break your contract but I'll still retain the rights.

Happens everday and it's completely legal.

or try this

If I sell you a car and you want to spread the payment out over time so it does't empty your wallet up front and then 3 months down the road you stop paying. I come and take your car away.

With that being said I would never lease on page content as an SEO because it's too shady in a touchy industry but I could see why others are doing it.

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Old 04-13-2005   #18
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seomike, I like your attempt at an analogy...I just don't buy it. Ian, great legal responses - makes a few things clear.

I think it seems that legal issues about SEO - contract and other wise - seem to be mentioned increasingly. There was a thread here in SEW a while back about some professional court witness on SEO that claimed he can be an expert court witness in SEO litigation cases (like TrafficPower, presumably). Maybe this is another indicator of the industry's maturity. Concerns over litigation is bound to increase more regulation.

Regardless, I don't think this makes much business sense. Any seasoned SEO knows that the SEO work is not just in content copywriting or metatags and that there is more than that to SEO. That's why it seems silly to me. What could this company possibly accomplish with this contract clause, and what could be the impetus for such a clause? And working in an agency, I know that agencies get clients through relationships not by searching "search engine optimization agency". It is similar to ad agencies - so what are relational ramifications from such a contract? I can't imagine it would be too good....
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Old 04-14-2005   #19
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Quote:
Originally Posted by cryptblade
What could this company possibly accomplish with this contract clause, and what could be the impetus for such a clause?
Fear and money.

Probably most clients know nothing about seo and they would be afraid to end the paying relationship with that seo company in case it damaged their rankings. It has the effect of making the client keep on paying for absolutely nothing, which may be legal but it's an outright scam.

I've come across similar things with website designers where the designer hosts the site. The website is complete and sometime in the future the owner wants an SEO to work on it. But the designers fill them with fear, saying that anyone touching the site might ruin this or that and it might have bad effects, etc. Basically, they scare the owners into paying the designers more money for something that they can't do well. The owners are tied by fear into the designer.

Imo, this meta tags business is the same sort of scam. The clients dare not stop paying money ad infinitum because they would have to remove the tags and, of course, all the rankings would disappear. That's the fear that the clause attempts to engender. Once you're a client, you're paying for good.

The spider and the fly come to mind.
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Old 04-14-2005   #20
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I'm inclined to agree with PhilC (again! must be sunspots or something... )

Although there are legitimate times where you would be paying the equivilent of "lease" instead of "own" payments, they are much less common than the normal kind of transaction.

I do know ethical and reliable designers and SEO's that perform these services to a small group of clients that are happy with the arrangment, but in most cases this is purely a money making scheme based on holding someone's website "hostage".

I see a designers or SEO's point where they set out a "payment plan" system and then the client wants to stop paying but keep the full rewards for the work - it's a valid concern and needs to be addressed. It's not always the service provider that is the scam artist, as any experienced SEO knows.

A business relationship should be based on trust and respect, not fear and misinformation. A good contract should cover both parties.

There are many ways to put together a contract for SEO (I've provided links to a template elsewhere on this site for one) and there should not be only one standard contract - people should be able to have flexibility in their business relations.

But here is a quick (and probably incomplete - I'm tired and this is off the top of my head) checklist of things that both a client and SEO should check regarding a contract:

1. Are the parties properly identified? Can you locate the other party physically (ie to serve legal notice) in case something goes wrong?

2. Is the jurisdiction of the contract identified? Different jurisdictions have different rules.

3. What, exactly, will the SEO be providing? Is there a time limit? I could promise to get you a top ten ranking and then later claim it might take 20 years to accomplish it!

4. What, exactly, is the client paying? When? Have you actually outlined when payment is due? Is there interest or a penalty for late payments?

5. What are the clients options if the SEO is unable to perform the contract? Pay the SEO for the work that has been done? Hourly or is there a flat fee? How is this measured?

6. What are the SEO's options if the client can't or won't pay? Who owns the website if the client goes bankrupt? What if the client is bought by a new company that wont' honor the agreement? Who owns the work? Who pays the SEO? Who instructs the SEO?

7. What happens if there is an issue that is not under the control of the SEO or the client, like a natural disaster. What about a major change in search engine algo's?

8. Who is responsible if the SEO provides instructions and the client doesn't want to take them? For example, the SEO wants to change content, but the client doesn't like the content because it would not convert visitors? What happens then? Is the SEO only responsible for traffic, qualified traffic, or conversions? How is this measured? Who makes the final decision?

9. Who owns the changes? When does this ownership occur? I recommend that the SEO maintain ownership until the final payment is made, and then the ownership transfers completely to the client, but this is not necessary.

10. How is success measured? What is the difference between successful work and unsuccessful work? What is the criteria used? What if I get a client to #5 but he thinks I should get him to number 1? What if I get him to number one but he gets no extra conversions?

11. What happens if there is an arguement? Is arbitration an option or do you go straight to suing each other? What rules are used?

That's all I can think of now, but there are probably more. This would be a pretty good start, however.

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