The estimated reading time for this post is 17 minutes.
I’m taking a course called Consulting in the Master’s program in Public Relations and Corporate Communications at Georgetown University.
As a strategic content writer, I consider myself a consultant: I’m advising clients on the best way to create written and visual content that fits seamlessly into their content marketing strategy. I’m also bringing unique skills in certain business domains to my writing to create that content.
I’m in this program because it’s an investment in my communications consulting practice. The standards for being an outstanding communications consultant are high and mistakes in this business can be costly. This master’s program forces me to up my game.
Two of the benefits of being in this program—besides that it’s Georgetown—are that I bring my personal and professional experience to the program and I learn to work smarter in my business. My classes at Georgetown either confirm what I already know from experience and to apply new skills, strategies or techniques I learn in class in my business the next day. This blog post is an example of that.
In this class, I’m reading a book called, Flawless Consulting: A Guide to Getting Your Expertise Used by Peter Block.
Establishing these professional standards has made it possible for me to grow my communications practice beyond “just a writer” to a sought after and respected professional consultant.
In the first chapter of the book, Block says, “When consultants talk about their disasters, their conclusion is usually that the project was faulty in the contracting stage.” He views “entry and contracting” as one of the skills a consultant must have.
As a strategic content writer, I consider myself a consultant: I’m advising clients on the best way to create written and visual content that fits seamlessly into their content marketing strategy. I’m also bringing unique skills in particular business domains to writing to create that content. Those technical skills are among the skills every content marketing consultant must have regardless of where they focus their services. But, consulting requires more than technical expertise.
Professional Consultants Demand Solid Contracts
One way you show you’re a professional consultant is the way you enter contracts, which get identified under many names including a “Master Service Agreement” or “Statement of Work” or a combination of the two. They can be as short as one page or an email that serves as a contract. Not getting this right can be costly financially, professionally, and legally as well a lose you respect as a consultant. It’s the primary reason I spend so much time on my website telling prospective clients how I work and read every contract carefully before signing.
I’m not a lawyer and don’t recommend you take the content in this blog post as ironclad legal advice.
I want prospective clients to understand how I will and will not work before they reach out to me about a writing assignment or engagement. Establishing these professional standards has made it possible for me to grow my communications practice beyond “just a freelancer” to a respected and sought after professional consultant.
Better Contracts Mean More Profitability—and Self-Respect
While I have more milestones I want to reach in my communications consulting business, I’ve paid my dues so am not willing to settle for contracts that potentially hurt my business. Because I’ve been at this for 20 years (and have good home training when it comes to contracts), most of the time I can get clients to revise contracts. Most will once they understand the mutual benefits of doing and want to be fair to their consultants.
If this is among the five percent of prospective clients I can’t persuade to revise their standard contract, which contains or is missing one or more of these problems or provisions to one that protects me, too, I reject the engagement. That’s true no matter who the prospective client is or how much the contract is worth.
While I’m not a lawyer and don’t recommend you take the content in this blog post as ironclad legal advice, I am willing to share these 12 consulting contract red flags that give me pause about proposed projects and sometimes the client company. But, you should talk to your legal counsel before taking this post as advice.
This blog post isn’t an exhaustive overview of all the issues you might find in business contracts and it would be irresponsible to suggest that. This list is great conversation starter for you and your attorney but don’t use it alone to decide how to construct or revise your consulting agreements.
Unclear project term or scope of work
The “Scope of Project/Services to Be Performed” and “Term of Service” sections of your contract should be tight. If the engagement doesn’t have solid beginning or end dates, get them added so you can plan work accordingly, meet client expectations and don’t spend more time on the engagement than you should.
Make your contract stipulates how specific dates for certain milestones get established, what deliverables you’re responsible for and what your client is required to do by which dates to make it possible for you to complete clearly identified tasks. Request a contract addendum that shows those dates.
Ensure all the tasks and activities that are part of the project show in the project’s scope and detail. If you’re only going to do “four blog posts per month that are 700 words or less on best law firm business operations practices,” that’s what your contract scope should say. This level of specificity is necessary to avoid the profit-draining scope creep covered next.
Uncompensated time or activities
Identify what other demands on your time clients will make to avoid scope creep. These requests come when your customer adds any other tasks or requires time for related activities that your statement of work (SOW) or contract doesn’t cover. Usually, scope creep starts slowly but, over time, will increase as clients become aware you’ll allow them to foist more work on you without additional pay.
These tasks and activities include:
- multiple short phone calls or several long ones per month;
- client phone conferences;
- in-person or virtual meetings;
- more than a few (two or three) emails a week taking more than 15 minutes to respond to;
- sidebars, infographic text, social media posts;
- or multiple revisions (especially those requiring major rewrites or expanding well beyond the original word count).
All these extras that benefit the client are considered consulting time professionals charge appropriate fees for clients to receive. Make sure your contract establishes that you’ll get paid for all your time and work.
Be certain it’s clear to the client that when they go outside the scope of your contract, you’ll charge a fee equivalent to your standard hourly rate or a prorated project rate for work beyond the amount you already got paid. Clients who do this too often to me lose me as a consultant.
Other activities that can cost you time and money often come in the form of a contract provisions but sometimes, the client asks for them after you’ve signed your contract. One is research and transcripts.
As a contract clause, a client requires you provide all your research notes and transcripts of interviews but may not want to pay for them. Not only can’t you repurpose those notes or interviews for other projects, but it also costs you time to transcribe interviews. That means you can’t take other work while you’re transcribing for your client. You could pay for transcription but, if your contract doesn’t reimburse you for the service, you’re absorbing the expense yourself.
This time cost comes with the production of copies of disks, pictures or images you’ve produced for the client, and they want multiple prints or editable copies in a particular file format. Other expenses can include international calls, special software used to track time or premium services you don’t use for other clients.
Some clients even require you to get special insuance or form an entity like an LLC to work with them. Sometimes, you’ll have to absorb PayPal or bank fees to get paid more quickly than having a check mailed (which takes time and resources to go deposit).
You’ll want to determine if you’ll integrate reimbursement into the contract for many of these expenses that you’ll incur for a single client related only to their work or absorb them as “costs of doing business” and use those you can as tax write-offs. (An expense like LLC formation, because you can use the entity for other clients, isn’t reimbursable. So before you do this, decide if the costs of forming an entity and properly managing and maintaining one compliant with the laws governing your type are worthwhile to you.)
Again, this is a business transaction where you’re exchanging your services for payment. Clients aren’t doing you a favor by hiring you to do your specialized work. Since I know this going into contract negotiations, I ensure my clients understand my payment policies, too. Great clients, like my long-term clients, respect this.
Unrealistic deliverable timelines
If you’ve discussed one timeline with a client and you see another as an addendum to your SOW or contract, either request it is changed back to the one you agreed on when you discussed the project or request rush or other fees for the work. Remember that work will take away from other client work you’re responsible for completing and marketing activities for your business.
But, if you now you can’t meet the aggressive schedule the client is trying to set, be honest about that up front. Taking on more work than you know you can manage may be disastrous to your reputation and credibility.
Non-compete, non-dealing or non-solicitation clauses
These force you to agree that you won’t work for, service prior clients or market to competitors of the prospective client. Often, the company makes it broad enough that they get to determine who their “competitors” are and that covers your entire primary industry. Sometimes they’re geographically limited but often especially if you work in digital marketing they are global. In some cases, brands want to make those effective for a certain number of years after you terminate the contract or it ends.
If you’re an independent contractor, you generate your revenue by providing your services industry-wide, including to clients’ competitors (including your current clients who a new client might consider competitors). So you’re selling control of your business and labor to a single client by signing a contract with one of these provisions. The clauses put you out of business, and large companies with deep pockets can enforce them, causing you to be unable to do the work you’ve developed your most lucrative skills in for extended periods of time.
On the rare occasions I see these clauses in a SOW, agreement or contract, I require their complete removal or reject the project. If I wanted to be an employee, where all my time and labor would be under company control I’d get a job.
Work for hire or all rights provisions
These must be in writing before you do any work so clients often require you to sign contracts before any work gets created that contains this provision and might get disguised under contract sections like “Deliverables” or “Work Product.” Worded correctly, work for hire (or work made for hire) means you’re forever selling “all rights, title, and interest,” or your copyrights, to any work you produce for the client. Here’s an example of what these clauses look like in a standard contract:
All ideas, inventions, discoveries, creations, improvements, concepts, developments, methods, tools, know-how, trade secrets, works of authorship, documentation, templates, processes, techniques, data, content, programs, reports, information, materials, designs, drawings, specifications, plans, documents and revisions made to any initial work, content or materials of the Client of any kind whatsoever prepared or created by Contractor in connection with, pursuant to or resulting from the Services shall be the sole property of and belong to the Client or an affiliate specified by the Client. All right, title and interest in and to the Work Product, including all intellectual property rights therein, shall be deemed a “work made for hire” (as that term is defined in § 101 of the 1976 Copyright Act) and shall reside with the Client or an affiliate specified by the Client without further employment of, or payment of additional compensation to Service Provider.
For a single fee, they (and their affiliates) own everything you use to improve their marketing materials, designs, content, methods, inventions or discoveries, including your ideas, concepts, techniques, and know-how. Your work product becomes theirs, and if you use any of it—including ideas or concepts—for any other client work or marketing your own business without their permission, you’re breaching their copyrights and risking a lawsuit.
If the work is writing or design, they reuse, revise, and publish your work repeatedly anywhere and anytime they want without paying you anything further than the original fee.
Many agreements allow the client to publish and republish the work in print, digital and any other form of publishing that exists now or will exist in the future anywhere in the natural universe. (Have you ever seen your articles in databases or for sale on Amazon? That’s why.)
Companies or publications can syndicate, license, and sell the work; add it to books and other compilations; reproduce it in its entirety or in parts and create derivative works from your piece of content, graphic or infographic.
They usually word it so they can your name and likeness (picture) when they republish or syndicate the work, which helps them market the work if and when you are or become a well-known and respected professional. Sometimes clients will require this while not allowing you to use their names in your marketing or identifying them as your client in any way.
Decide if it’s worth it to sign contracts with work for hire provisions and charge higher fees where your certain your work product will have far more value to the client than one use.
Unilateral, all liability indemnity clauses
These can be hard to describe, but you know them when you see them. They make you accept all legal liability for any deliverables you submit and your clients use, even if they’ve edited the deliverable, for any lawsuits related to your work product or even a part of it like those interviews or transcripts.
They usually look something like this:
The Service Provider shall indemnify and hold harmless, including the payment of attorney’s fees and costs through trial and all levels of appeal, Client, its affiliates and its directors, officers, employees, agents, successors, assigns, licensees and distributors against any and all claims from any source at any time made or judgments paid or incurred in connection with claims by any party which arise from use of materials originating with the Service Provider.
The way this seems to read if someone sues your client in 35 years for a work that you created when he current head of legal was in preschool, the client company or their successor or anyone they assigned your copyright to can come for you legally. That’s unlikely but lawsuits against contractors who sign these are legion.
There are ways to amend these clauses to make them more mutual. You might be able to limit them to certain aspects of the contract that you breached or to lawsuits where you’re at fault. In some cases, you can insist the client limit your liability only to what they paid you for the work.
I would ask clients to remove the clause entirely or revise it substantially. There are ways to amend these provisions to make them more mutual. You might be able to limit them to certain aspects of the contract that you breached (but make sure the rest of the contract protects you or his won’t work) or to lawsuits where you’re at fault. In some cases, you can insist the client limit your liability only to what they paid you for the work.
Talk to a media attorney or other experienced legal counsel about limiting your liability to your actions or negligence under these contracts. Then, don’t do anything to get yourself sued or allow the client to talk you into doing anything unethical.
Unilateral non-disclosure, trade secrets or confidentiality clauses
Sometimes these are entire agreements, but many time, you’ll find them in contracts. They require you to keep all client information secret forever and never use their “confidential information” or trade secrets to serve other clients. This usually is shown in the agreement as a lengthy list of items and adds a “or anything else we may have missed” clause.
But, the client can pick your brain for your confidential information or trade secrets. They’ll expect you to use yours in your work “to make it unique” and will apply freely whatever you’ve revealed or provided to any other aspects of their marketing activities to generate higher profits in which you’ll get no share. That includes your trademarks, servicemarks, logo, name or likeness when you haven’t explicitly granted those rights to the client.
I only sign contracts where these provisions are mutual, say “Mutual Nondisclosure Agreement” or “Mutual Confidentiality Agreement.” But, I read the entire contract to make sure nothing else there overrides the mutuality of these clauses and allow the client to use my confidential information. I make certain to read sections like “Miscellaneous” or “Work for Hire” to see what might be hidden there that include similar language.
It’s a good idea to have errors and omissions and a business owners policy that covers general and personal liability or media perils if you’re a journalist does hard news, exposes and investigative pieces. However, when you see these provisions, before you agree to them make sure you have insurance in place. Read them carefully to determine if the client wants you to add the as an additional insured or loss payee on your policy.
Also be careful about other provisions in the contract that may cause you to violate the terms of your insurance policy, may void your coverage or may expose you to higher liability that would trigger use of your policy benefits. Any one of those can leave you without insurance.
Check with your insurance agent or the policy issuer before you sign a contract including this clause to make sure you’ll be covered if you sign it, they don’t want you to have the client revise it or some other aspect of the agreement or will require the provision be removed altogether.
Payment terms beyond 30 days
When you sign an agreement with a client for your time and deliverables in exchange for payments that come after you do the work, you’re extending credit to those clients. I don’t know about you but I don’t have any special deals with my personal or business creditors which include my landlord, Georgetown University (which isn’t cheap), and utility companies to pay them beyond 30 days.
They expect to be paid for their services on time. I’m providing my clients a specialized service for which I need to be paid in 30 or fewer days and in advance in some cases. When I do what’s necessary to get paid on time, I expect to be paid on time so I can pay my bills on time.
Not only should your contracts have clearly defined payment terms, they should state that you will get paid in no more than 30 days. You also should request clients accept additional payment terms like you’ll stop work if they don’t pay you and will add late fees or interest to unpaid invoices. You’d better believe they have these policies in place for any vendor they extend credit. Your business should, too.
Undefined number of or extensive revisions
Unless you’re entirely new to consulting, you know all about this. You’ve written a white paper, report, e-book or blog post based on clear parameters you made sure you got from your client. They’re not happy with what you wrote and want extensive revisions and, sometimes, a complete rewrite.
For clients who I’m doing large projects for, I establish a set number of revisions and include the extent to which I’ll make those revisions. I preclude unpaid major rewrites or expansions on blog posts that aren’t necessary because I misunderstood the scope of the project or client instructions by making clear I won’t do them unless I’m paid more.
I build the fees I charge for additional revisions beyond those we agreed on into my contracts. Making these policies clear in client agreements prevents loss of revenue for you caused by uncompensated extra work and time you can’t commit to other full-paying projects.
Unclear acceptance time frames and policies
It’s great you client pays on acceptance of your deliverables, but you can’t submit your invoice before acceptance happens so you’ll want to know when and how acceptance happens. Is it a quick process taking several days or are there six sets of eyeballs that need to see the work before legal approves it, all taking weeks?
I get that outlined in the contract, setting the maximum time frame that I wait until I assume “acceptance.” Then, I submit my invoice and expect the client pay within 30 days. I don’t allow verbal assurances of acceptance policies. They must be in writing in the contract because that written agreement supersedes any promises clients make by email to entice you to accept a project.
Fear Lawsuits or Loss of Reputation Rather Than Loss of Business
One reason consultants, especially those of you providing writing services, don’t challenge contacts is you fear losing business. You need the money you’ll make from prospective clients and fear the client might rescind a project offer to you if you request revisions or changes to contracts or fees. Telling you to “take this contract or leave the project” is the same as withdrawing the opportunity.
Even if they say it nicely: “This is our standard contract and, since most vendors sign it the way it’s written, I’m sure legal won’t make the revisions you’e requesting,” doesn’t change that fact. Thank the client for informing you of that and insist they send the contract for revisions, even major ones. You’d be surprised how often this works and you get respect for doing that.
Of course, some of the clients’ editorial or project management staff (with whom you’ll deal mostly) may resent you for acting like you have a real business to run and will (mis)behave accordingly to rremnd you they think you’re not a real professional. And accounts payable staff, unused to (or resentful of) those they consider mere freelancers establishing payment policies may try delaying your payment. Do great work and raise those issues your primary client contact to have them addressed. (Make sure your agreement has “Termination Clause” that gives you the right to end the contract if things get ridiculous.)
You can attract better clients if you only accept those who’ll treat you well and with the professional respect you deserve. There’s rarely been a time when that hasn’t been true for me pretty shortly after I’ve decided to walk away from even “dream” clients. I can’t tell you how often I’ve been happy I made that decision or how falling back on solid contract provisions I’d required saved me grief with projects I accepted.
But, allowing worries about losing work to keep you from operating like the legitimate business owner you are and cause you to accept contracts that don’t protect your interests will keep you attracting the wrong clients for your consulting practice. You might also experience a loss of reputation, revenue or a lawsuit when you fail to meet a client’s expectations and your agreement didn’t contain terms or provisions protected you from the fallout.
Develop your entry and contracting skills and exercise them routinely, so they’ll grow. Don’t neglect this important aspect of business operations.
(c) 2017. Dahna M. Chandler for Thrive Writing, Inc., a division of Thrive Media, Inc. All rights reserved. This article may not be reproduced in whole or in part without express written permission of the author.
* Disclaimer: This blog post uses sample legal clauses and personal experience solely to illustrate the points made here. This post is for informational purposes only. It is no substitute for your contacting a lawyer, insurance agent, tax advisor or accountant or any other qualified or licensed professional for advice on your specific business situation. Please contact those professionals and carefully review this site’s Content Disclaimer on the use of illustrative information and the application of this information to your business before using any information in this blog post to make any crucial business or personal decisions.
Image Source: Pexels.com