What’s on the iPod: Something Good This Way Comes by Jakob Dylan
It’s amazing how much you can accomplish when you feel lots of tight deadlines coming down on you. By noon yesterday, I’d completed three projects and started on a fourth. I spent the afternoon going over contracts and yes, marketing. Just because things are in the works doesn’t mean anything’s sure until signed. Keep on looking.
A writer friend and I were commiserating about various aspects of our lives, personal and professional, when she mentioned turning down an assignment because of the contract clauses. When she shared them with me, I agreed. The clients were attempting to enforce ridiculous parameters on her, and in one case, they expected her to assume their business risks.
Thankfully, she’s a veteran writer who doesn’t let anyone walk on her. A few clauses into the contract and she knew it was a raw deal. Here’s one of those clauses:
Contractor may not voluntarily terminate its services under this Agreement before the end of the assignment without the consent of Client.
Are you kidding? So basically, if the job sucks, these people aren’t paying, etc., they’re going to chain you to the project until it’s completed? Not possible, frankly. You as a contractor are free to terminate any services at any time. This clause indicates to me that maybe someone lifted a boilerplate “contractor” contract off the Internet. However, what may be true for a remodeling company is not true for a writer.
Another interesting clause:
INSURANCE
Contractor will at all times while performing work under this Agreement, maintain at its expense Comprehensive General Liability (GL) insurance coverage with limits of not less than $100,000, Errors and Omissions insurance, Workers Compensation coverage, Professional Liability insurance, and Automobile Liability insurance.
If Contractor fails to maintain insurance coverage, Contractor assumes all risk of loss for any accidents, claims, damages and losses and Contractor covenants not to sue the Company or Client as a result of such claims, damages and losses.
Mind you, I’m a proponent of all freelancers carrying some sort of insurance to protect against a-hole behavior of the select few clients who feel the need to act badly. However, this clause is worded in such a way that the Contractor is basically agreeing to, in my opinion, implied responsibility for the business’s screw-ups. It doesn’t say it directly, but if something goes wrong, the client is going to wave this paper in front of the contractor and pass the buck.
And honestly? Workers compensation insurance? For a freelance writer? This is a company that still thinks of its outsourced help as employees. Yes, they could be sued should someone get a serious paper cut that becomes infected and causes an arm to drop off, or get maimed on the way to Staples to get ink to print out the project (maybe that’s why they included the need for auto insurance, too), but for the most part companies are protected by the independent status of said contractors. And frankly, the agreement need only say (in my totally un-legal-like opinion) “Contractor is not an employee of Company and Company assumes no workers compensation liabilities of said Contractor…” blah blah. Again, I’m not an attorney, but it seems easier (and smarter) to say what you ain’t gettin’ versus what you require someone to buy who may not be able to buy it in the first place.
Rather than debate the legalities of such clauses or the sanity of those who state them, I’d much rather point out that stuff like this in a contract is something we writers need to be aware of. More client contracts are adding clauses that either bind us to ridiculous terms or pass all risk exposure to us. Suppose your client wants you to write a textbook from materials he supplies? And suppose the materials are full of erroneous information? And suppose that information causes someone to fail his SATs? And suppose he sues the company? No, he’d be suing you, because by signing that contract, you’ve agreed to take all the blame for anything you produce, even if the fool on the other side of the contract was the cause of the problem.
I’d think this was an isolated incident, but it’s not. HarperCollins has started including into its contracts with authors a “morals clause” that basically controls how its authors act in public.
PUBLISHER’S RIGHTS OF TERMINATION
If (i) Publisher determines that any of the representations of Author set forth in Section 6(a) is false, or (ii) Author breaches the covenants set forth in Sections I(f), I(g), 2(c), or 2(d), or (iii) Author commits a breach of any covenant contained in the Special Provisions section of Part I above for which Publisher is given a right of termination, or (iv) Author’s conduct evidences a lack of due regard for public conventions and morals, or Author commits a crime or any other act that will tend to bring Author into serious contempt, and such behavior would materially damage the Work’s reputation or sales, Publisher may terminate this Agreement and, in addition to Publisher’s other legal remedies. Author will promptly repay the portion of the Advance previously paid to Author, or, if such breach occurred following publication of the Work, Author will promptly repay the portion of the Advance which has not yet been recouped by Publisher.
So, if I curse out a guy who cuts in front of me and he happens to put the video on YouTube, I’ve broken the contract?
A few decades ago I had a contract where the publication bought my article, but I missed the wording and it cost me dearly. They had agreed to buy a sidebar, not my full article. The contract I signed said “Company agrees to purchase a minimum of 500 words…” I had no recourse. I’d signed it. Despite their agreement in email to buy only a small portion, they paid me for an article they’d printed verbatim – all 2,000 words. My bad indeed. Sure they were scum not to respond to any of my letters asking, then demanding restitution, but I was foolish for not reading more closely. One word cost me about $800.
How closely do you read your contracts? What have you seen lately that’s questionable? Ever been burned by a contract clause?
18 responses to “Stupid Clauses and Clients Who Push Them”
Yes, been burned badly. I signed one that said if I stopped before the project was finished I would be responsible for their costs of finding another freelancer.
The project was horrible and the revisions were bringing my rate down to nothing. I explained my frustrations, offering to give some notice so they could find another freelancer. When they wouldn't tell me how much they planned to hold back I refused to do any more.
Can you guess where this is going? When I emailed about the money for the work I did, the response I got was: "well, to find another freelancer we had to up the pay from $5 an item to $7. Therefore, you owe us $250." After a couple of months of trying to contact other people I gave up.
I'm not joking, and this is a reputable SAT-prep company in the U.S. Until that point when I came across weird things in contracts I told myself "yeah, it's there, they they would never actually enforce it." Not any more! If anything is unclear or seems off I won't sign.
Luckily that lesson only cost me a couple hundred bucks.(P.S. Sorry for the long-winded comment!)
Krista, that's gawd awful! I hope you didn't have to actually pay them!
I wonder if it's the same company? Pop me an email – I'd love to hear more!
A out-of-state web company one time wanted to be able to offer my writing services to their clients. But their contract stated that I couldn't write web copy for anybody else in the entire country for the duration of the contract plus two years. Really? Yeah, right.
My nickname is the Contract Demon Bitch from Hell. I analyze every punctuation mark. I used to work on the committee negotiating Broadway contracts, where, if the producers had their way, people would pay them for the "privilege" of putting on a show that rakes in a million dollars a week profit.
I send back contracts all the time stating," X, Y, and Z clauses are unacceptable and need to be struck. J clause needs to be rewritten as such. I've enclosed a rider with A, B, and C clauses that must be in there for me to sign it."
If the changes aren't made, I walk. Or rip the contract into pieces, throw it at the SOB, and walk.
Needless to say, I do not to business with Harper Collins. I don't submit to them, and when people submit on my behalf, I tell them not to submit there. The publisher does not have the right to decide what of my behavior is "moral" and what is not.
The fact that their authors are agreeing to this instead of all walking out says a lot about how desperate even so-called "best selling authors" are.
Nope, never had to pay. My "choices" were to pay $250 or not get paid and retain the rights to my work. Honestly, the guy seemed a little unhinged. But in the end it was my stupidity for signing after I knew it didn't seem right. What is your email? I'd like see if it's the same company but don't want to post their name here.
Fortunately, I have not been involved with any horror contract stories. 95 percent of the contracts are mine with a few company NDAs thrown in.
What I find interesting is how the freelancer is held to the contract, but when the shoe is on the other foot, clients have no problem ignoring terms of a contract that they signed-like payment terms.
Krista, click on my profile link – the email link is in there.
Amen to not paying! But to not get paid? What a jerk he was! Too bad that contract was signed – you might have gotten some restitution in court.
Funny how that is, isn't it, Cathy? But hey, a good solid contract saves many a lost dollar, I say. 🙂
Eileen, that's ridiculous! So basically they're saying that you, a freelance web copy writer, have no right to conduct business if you work for them?
Let me guess how THAT turned out. 🙂
Devon, does that replace your Customer Service Demon Bitch From Hell moniker, or is it an enhancement? LOL But you're right – if it's not kosher, stick up for yourself and take no prisoners. I'm constantly amazed at the number of people – and the caliber of some of them – who will give away the farm, so to speak, just to get the job.
I had a big corporate client insist that I buy $2M worth of workers' comp insurance and other stuff. Seriously?! When I explained that it wasn't relevant to the work I'd be doing, they told me "none of our other writers had a problem with that clause." I wrote back saying, "then none of your other writers read the contract very closely. Based on the pay rate for this project, I'd be curious where these writers were getting that much insurance coverage?" They dropped that clause.
I'm also wary of indemnification clauses and non-compete clauses that are too broadly worded. After all, I'm a freelancer, so limiting my ability to do business with other clients is a real problem for me.
I absolutely will NOT sign non-competes. I've had them reworded to my liking a few times. Other times, I've had to walk. I'm like Devon. I scrutinize every word in a contract before I sign, and if I don't like it, I ask for it to be removed or reworded. If it's not, I bow out, even if I've already invested a lot of my and the client's time in securing the assignment. But here's an important point to consider: If you have to jump through hoops with a client over a contract, chances are they're going to be extremely difficult to work with throughout the duration of the project. Contract wording is a big red flag for me and one I take very seriously.
As for HarperCollins' moral clause, I give it my infamous "Screw You!" That being said, I've heard a lot of authors are fighting it and getting it removed.
Final point: Don't be so desperate to secure a job or to get a book published that you sign your life away. Remember you're a freelancer. That means no one else gets to tell you how you work or how to live your life. Period.
Susan, $2M? Are they serious? That's nuts! Either the writers who complied were crazy or lying. I'm not so sure they can purchase that easily. BTW, I tried visiting your site today, but couldn't access it. I'm not ignoring you!
Excellent point, Kathy. Desperation and fear of saying no is a big motivator, and it has no place in business.
Why don't they just add this clause- “You will, henceforth, relinquish your soul per all terms of this covenant, as we/she/he/it see fit, whether terms are agreed upon by signer or not. We reserve all rights to dictate how, where, when, why and what duties you perform daily, whether personal or work related, from this moment on.”
It's one thing to protect your business interests, including those regarding reputation, but you can definitely take it too far. I would suspect a lot of writers would skim it through, find out they don't understand a word of it and just sign it anyway. Then wonder why their soul now belongs to someone else. I admit, I don't always understand every little detail, but I have learned to ask others before assuming it's okay.
Most of those clauses aren't, probably, even enforceable… the couple of times it looked like I might be sued for some sort of breach I've just shut up… ultimately nothing happened. I've also been known to refuse certified mail. Twice in my life I think.
Wendy may be joking, but whenever I'm registering online and have to click to box to agree to terms, I read the terms just to make sure something as ridiculous as "sell your soul" isn't one of them. (Some bored contract writer will one day put something ridiculous in just to see if anyone actually reads the fine print.)
In 2008, I received an offer to give a writing presentation at a local public library. They sent me a contract and an insurance waiver. I had confirm that I had workers comp insurance and liability insurance in excess of $2 million OR sign a waiver accepting full liability for anything occurring on library grounds on the date in question (nothing in the wording suggested a time limit, or any particular spaces), and even included the phrase, "..including normal wear and tear."
Excuse me? A library that doubles as an informal day camp for th homeless and is full of books being used and abused on a daily basis wanted me to assume blanket liability for everything? For a $150 stipend? That couldn't be right.
Certain I was mis-interpreting it, I had a friend who's a paralegal read it. She said not to sign it.
From speaking with some of the library's past presenters, I learned only one had ever been asked to sign the waiver – she refused and they still let her present, just as I had done one time previously. This time I refused and heard, "Buh-bye."
Perhaps their reaction had to do with the way I refused…I complained to the Mayor's office (which oversees the local libraries) saying I assumed my hard-earned tax dollars were already paying for the facility to be properly insured.
Give 'em hell, Paula!
Wendy, I bet money someone would sign it anyway!
Anne, great advice. The squeaky wheel not only gets the grease – it gets sued!
Lori, it's in addition to being the Fair Consumer Treatment Bitch from Hell.
Regarding insurance — when I produce shows, it is MY job to have a very large policy to cover any type of accident, act of God, actor screw-up, tech mess, etc., etc. It is MY job because I am creating the work environment. I am creating the "house."
When I come into someone else's "house", it is their job. I am not going to sign something that tells me I have to carry the financial, emotional, and social burden of the work environment created by someone else.
Harper Collins can take their "public conventions" and stick 'em. Things like these are really making the case for indie publishing stronger every day. As for the freelance side, I hope most freelancers are smart enough to know better (they're business owners after all, and that's their responsibility). If we don't respect our own rights as freelance professionals, no one else will. That's much of the problem with anything from content mills to book publishing nowadays.
I absolutely will NOT sign non-competes. it is MY job to have a very large policy to cover any type of accident, act of God, actor screw-up, tech mess, etc.
Contractors General Liability Insurance