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I’m taking a course called Consulting in the Master’s program in Public Relations and Corporate Communications at Georgetown University. I’m in this program because, not only do I already provide strategic content writing consulting service, I’m relaunching my corporate communications consulting practice in early 2018. So it’s an investment in my business and gives me the ability to take it to the next level—to become one of the best in my industry.
“When consultants talk about their disasters, their conclusion is usually that the project was faulty in the contracting stage.” —Peter Block
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 or teach me new skills, strategies or techniques I can apply my business activities the next day. This blog post is an example of that.
In this class, we’re using 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. Negotiating the right contract isn’t about being hard to work with, and the right clients won’t think that. It’s about making the engagements or projects you take on more comfortable for everyone involved and positioned to achieve the desired outcomes.
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 those every content communications consultant must have regardless of where they focus their services. But, consulting requires more than technical expertise for flawless execution.
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 “Independent Contractor Agreement” or something else. They can be as short as one page or an email that serves as a contract, or quite lengthy, making you feel like you’d better get an attorney to review it for you.
But not getting this right can be costly financially, professionally, and legally as well as lose you the respect you deserve as a highly-skilled consultant. It’s the primary reason I spend so much time on my website telling prospective clients how I work as well as reading every contract carefully before signing on behalf of my corporation.
I’m not a lawyer and don’t recommend you take the content in this blog post as ironclad legal advice—or as legal advice at all.
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” or “just a writer” to a respected and sought-after professional consultant.
Better Contracts Mean More Profitability—and More Self-Respect
While I have more milestones I want to reach in my communications consulting business, I’ve paid my dues as a professional communicator. So, am not willing to settle for contracts that potentially hurt my company or me, personally. Because I’ve been at this for 20 years (and have proper home training when it comes to contracts), most of the time I can get clients to revise contracts. Most will make revisions once they understand the mutual benefits of doing that and if they value and want to be fair to their consultants.
If I find myself dealing with one 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 money the contract is worth.
Pay Good Lawyers for Solid Legal Advice About Contracts
I’m not a lawyer and don’t recommend you take the content in this blog post as ironclad legal advice—or legal or financial advice at all. But, 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 using this post as legal or financial advice about your business because it’s probably as different from mine as you are from me.
This blog post isn’t an exhaustive overview of all the issues you might find in business contracts, either and it would be irresponsible to suggest that. This list is a great conversation starter for you and your attorney but don’t use it alone to decide how to construct or revise your consulting agreements.
12 Contract Clauses That Give Me Pause—and Sometimes, Gas
Unclear project term or scope of work
I make sure the “Scope of Project/Services to Be Performed” and “Term of Service” sections of my contract are tight. If the engagement doesn’t have a solid beginning or end date, I get them added so I can plan work accordingly, meet client expectations and don’t spend more time on the engagement than I should.
I make sure my contract stipulates how specific dates for specific milestones get established, what deliverables I’m responsible for and what my client is required to do by which dates to make it possible for me to complete clearly identified tasks. I request a contract addendum that shows those dates.
I also ensure all the tasks and activities that are part of the project show in the project’s scope and detail. If I’m only going to do “four blog posts per month that are 700 words or less on best financial advisor firm operations practices,” that’s what my contract scope should say. This level of specificity is necessary to avoid the profit-draining scope creep covered next.
Uncompensated time or activities
I identify what other demands on my time clients will make to avoid scope creep. These requests come when a customer adds any other tasks or requires time for related activities that my 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. I no longer go for that, but that’s because I let it to hurt me so much in the past.
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 requiring more than 10 minutes to respond to;
- sidebars, infographic text, social media posts;
- or multiple revisions (especially those requiring substantial rewrites or expanding well beyond the original word count stated in writing).
I consider all these extras that benefit the client consulting time that real professionals charge appropriate fees for clients to receive. I make sure your contract establishes that I’ll get paid for all my time and work.
I make sure it’s clear to the client that when they go outside the scope of our contract, I’ll charge fees equivalent to my standard hourly rate or a prorated project rate for work beyond the amount I already got paid. But, clients who do this too often to me lose me as a consultant.
Other activities that can cost me time and money often come in the form of contract provisions but sometimes, the client asks for them after I’ve signed our contract (or agreed to the work on a content platform). One expense is research and transcripts.
I’ve seen this as a contract clause under which a client requires me to provide all my research notes and transcripts of interviews but may not want to pay for them. Not only can’t I repurpose those notes or interviews for other projects, but it also costs me time to transcribe interviews. That means I can’t take other work while I’m transcribing for my client. I could pay for transcription but, if my contract doesn’t reimburse me for the service, I’m absorbing the expense yourself.
This cost for my time comes with the production of copies of disks, pictures or images I’ve produced for the client. Some want multiple prints or editable copies in a particular file format. Other expenses can include international calls, specialized software used to track time or premium services I don’t use for other clients.
Some clients even require special insurance or formation an entity like an LLC to work with them. Sometimes, I’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).
I determine if I’ll integrate reimbursement into the contract expenses that I’ll incur for a single client related only to their project or absorb them as “costs of doing business.” I know I can take some expenses as tax write-offs but not always and prefer my money in my bank account, not the IRS’s until tax time. (But I know a cost like LLC formation, because I can use the entity for other clients, isn’t reimbursable. So before I’d do this, I decide if the costs of forming a entity and properly managing and maintaining one compliant with the laws governing your type are worthwhile to me.)
Again, this is a business transaction where I’m exchanging my services for payment. Just like I’m not doing them a favor by offering my services to them, they’re not doing me one by hiring me to do my specialized work for them. 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., and don’t have issues with any of this.
Unrealistic deliverable timelines
If I’ve discussed one timeline with a client and I see another as an addendum to my SOW or contract, I either request it gets changed back to the one we agreed on when we discussed the project or request rush or other fees for the work. I remember that work will take away from other client work I’m responsible for completing and marketing activities for my business. (It also can cut into my study and project completion time for work or other crucial personal activities, and I’m not for that.)
But, if I know I can’t meet the aggressive schedule the client is trying to set, I’m honest about that up front. As recently happened to me, life happens, and other things and people get in the way of my work sometimes (deliberately) derailing my project timelines. But taking on more work than I know you can manage may be disastrous to my reputation and credibility, so I avoid that in writing.
Non-compete, non-dealing or non-solicitation clauses
These force you to agree that you won’t work for, service former 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 they’re global, primarily if you work in digital marketing. In some cases, brands want to make those effective for a certain number of years after you terminate the contract or it ends.
As an independent contractor, I generate my revenue by providing my services industry-wide, including to a prospective client’s competitors. In fact, that has included current clients who a potential client considered competitors and wanted me to terminate my work with them while I took projects with this new platform.I’ve gotten this request from major brands and have been eliminated for consideration from teams because I work regularly for competitors in the same industry.
Agreeing to one of these clauses means I’m selling control of your business and labor to a single client by signing a contract with them. The provisions could put me out of business in that industry, and large companies with deep pockets can take me to court to try enforcing them. Both scenarios means I’d 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. I’m wary of these because they usually 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 may 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.
The way this one works is, for a single fee, they (and their affiliates) own everything I use to improve their marketing materials, designs, content, methods, inventions or discoveries, including my ideas, concepts, techniques, and know-how. My work product becomes theirs, and if I use any of it—including ideas or concepts—for any other client work or marketing my 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 my work repeatedly anywhere and anytime they want and generate as much revenue as they can 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? These clauses are why.)
Companies or publications can syndicate, license, and sell the work; add it to books and other compilations; reproduce it in its entirety as well as in parts and create derivative works from my piece of content, graphic or infographic.
They usually word it so they can my name and likeness (picture) when they republish or syndicate the work, which helps them market my work if and when I am or become a well-known and respected professional. Sometimes clients will require this while not allowing me to use their names in my marketing or identifying them as my client in any way.
I have to decide if it’s worth it to sign contracts with work for hire provisions and charge higher fees where I’m confident my work product will have far more value to the client than one use. Typically, I request such broad clauses to be limited in specific ways that protect my ideas and image.
Unilateral, all liability indemnity clauses
These can be hard to describe, but I know them when I see them. They make me accept all legal liability for any deliverables I submit and my 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 I created when the current head of legal was in preschool, the client company or their successor or anyone they assigned my copyright to can come for me 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. I try to limit them to certain aspects of the contract that I breach or to lawsuits where I’m deemed at fault. In some cases, I insist the client limit my liability only to what they paid you for the work.
In some cases, I’ve asked clients to remove the clause entirely or revise it substantially like I suggest above. There are ways to amend these provisions to make them more mutual. I know I might be able to get these clauses revised and still have other clauses in the contract that say the same thing in a different way so I check.
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 entirely separate agreements clients require I sign, but many times, I’ll find them embedded in contracts. They require me 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 “or anything else we may have missed” clause.
But, the client can pick your brain for my confidential information or trade secrets. They’ll expect me to use yours in my work “to make it unique” and will apply freely whatever I’ve revealed or provided to any other aspects of their marketing activities to generate higher revenue in which I’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 allows 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 if you’re any kind of consultant or media perils if you’re a journalist who does hard news, exposes and investigative pieces. However, when I see these provisions, I don’t before before I check to see if I have insurance in place. I also read these carefully to determine if the client wants me to add the as an additional insured or loss payee on my coverage.
Also, I’m careful about other provisions in the contract that may cause me to violate the terms of my insurance policy, voiding my coverage or may expose me to higher liability that would trigger use of my policy benefits. Any one of those can leave you without insurance.
I’d check with my insurance agent or the policy issuer before I sign a contract including this clause to make sure I’ll be covered if I sign it, that 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
I know when I sign an agreement with a client for my time and deliverables in exchange for payments that come after I do the work, I’m 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 my bills 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 do my contracts have clearly defined payment terms, they state that I will get paid in no more than 30 days from invoicing. I also require clients to accept additional payment terms like I’ll stop work if they don’t me you and will add late fees or interest to unpaid invoices. I know 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 timeframes and policies
I always think it’s great when a client pays on acceptance of my deliverables, but in most cases, I can’t submit my invoice before acceptance happens. So I’ll make sure I know when and how acceptance happens for any prospective client. 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 me to accept a project.
Fear Lawsuits or Loss of Reputation Rather Than Loss of Business
One reason consultants, especially those of us providing writing services, don’t challenge contacts is we fear losing business. In an emergency or downtime especially, we need the money we’ll make from prospective clients and we fear the client might rescind a project offer to us if you request revisions or changes to contracts or fees. But, to me, telling me to “take this contract or leave the project” is the same as withdrawing the opportunity because if the contract was acceptable “as is,” I wouldn’t have requested changes.
That fact doesn’t change even if they say it nicely like, “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.” I thank the client for informing me of that and insist they send the contract for revisions, even major ones, anyway. You’d be surprised how often this works. I usually get respect for my polite insistence.
Of course, some of the clients’ editorial or project management staff (with whom you’ll deal mostly) may resent us for acting like we have a real business to run and will (mis)behave accordingly to remind us they think we’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 our payments. My response to that is to do great work and raise those issues with my primary client contact to have them addressed. (I make sure my agreement has a “Termination Clause” that gives me the right to end the contract if things get ridiculous.)
I’ve learned that despite the risk to revenue, my reputation for being a serious business owner who wants both respect and pay is more important. I know people buy what I sell and that I can attract better clients if I only accept those who’ll treat me well and with the professional respect I 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 me from operating like the legitimate business owner I am and cause me to accept contracts that don’t protect my interests will keep me attracting the wrong clients for my communications consulting practice. I risk loss of reputation, revenue or a lawsuit when I fail to manage and meet a client’s expectations and my agreement didn’t contain terms or provisions protected me from the fallout.
That’s why I’m using my Consulting course at Georgetown to further hone my engagement entry and contracting skills and routinely exercise them like an improved consulting practice skill muscle, so they’ll grow.
(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.
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