Freelancing your way to protection with terms and conditions
Grab popcorn. This is a long one!
Terms and conditions are something freelancers struggle with. Commonly, we’ll borrow (or pinch) them off someone else’s boilerplate. And that’s OK to a point, but what works for your business and the common problems you find are different to other freelancers.
The trick with terms and conditions is to ensure they cover the basics while also being customised to how you work. And then making them a part of the client engagement.
Why should you question the terms and conditions set down by clients?
Working with agencies, government bodies and super organised businesses can see you working with a multitude of terms and conditions set down by clients.
A common assumption by freelancers is if you don’t agree to these terms, you won’t get the work.
First of all, this is incorrect. Many places welcome negotiation with talent to ensure they get the right person.
Second, it’s also illegal to offer non-negotiable contracts in Australia. Law was passed in 2011 that protects your right to question and negotiate conditions.
So why would you want to challenge the conditions of a client?
There are 3 TnCs that really come back to bite you if you are not careful!
Non-compete clauses- these are often used by big companies to stop you from sharing information to competitors. Many non-competes go as far as preventing you from working in a particular field for up to 3 years. If you are a specialist, this can legally prohibit you from working in your field of expertise for that period. So always make sure that while the client specific information is protected, so too is your ability to work in that field and apply skills gained through the work you do.
Payment terms- large blue chip companies and government departments can have payment cycles of 90 to 120 days. Agencies usually have 45 to 60 day terms- sometimes after client payment has been received! That is a very long time for a freelancer to work a contract without being paid. Your client’s cash-flow is not your responsibility, and you should always try to get paid within a reasonable payment cycle (such as 30 days) or ask to be added as a contractor to Payroll so you are paid in-line with non-freelancing staff. You may not always get a shift in payment terms, but you should try.
Intellectual property – some businesses will restrict your IP to the point where you can’t use a project as part of your portfolio. You should always fight for your right to get credit for the work you do, unless you are in a ghost-writing style of relationship. After all, each project is more proof you can do the work to other potential clients. You also need to ensure you own the IP until the invoice is paid. More about that below.
Why should you have your own terms and conditions?
A lot of small businesses, startups and solo operators have not drafted their own terms of engagement, so relying on the client means you may not be covered at all! Besides, it makes you look professional and it means you can dictate your working terms.
You MUST have terms and conditions- they are not optional.
They protect you from being screwed over. If you don’t have these protections and something goes wrong, it can be far more difficult to get paid, obtain a legal judgement in your favour or generally untangle a hostile client situation.
Don’t kid yourself- people are not always wonderful, fair-minded or sane. You will (unfortunately) face issues where fighting for your rights is important. Having a baseline of accepted engagement is an excellent way to ensure you face fewer issues than most.
What your terms and conditions should cover as a bare minimum:
Quoting
How long the quote is valid for
How many rounds of revisions are included
That your quote covers what is stipulated and that any changes to scope are charged at an additional rate
That approval for a quote must be given in writing
Whether a deposit needs to be paid before work commences – and what % that deposit is of the entire job
Minimum job size- for example, many freelancers won’t take on work where a job is less than $500 in value without upfront payment. Some may not take on jobs of this size at all
Any specific briefing components you may have. For example, I expect my clients to write out what they need and sign off on a written brief. This minimises scope creep and is essential to providing an accurate quote.
Payment terms
You’ll need to outline-
The payment methods available
If certain chosen payment methods have additional fees (e.g. PayPal or American Express)
Your payment terms (e.g. 7 day terms)
Whether you charge interest on late invoices
On receipt of payment, when the work starts. For example, I won’t start work until the funds clear and the next available day in my schedule. This stops clients from assuming they can jump straight in without proof of payment, or demanding I drop work I am currently doing when they finally pay the deposit
Job cancellations
Some clients will get cold feet during the project work. They can realise they don’t have budget, may change their mind or something outside of both of your control can change that clients circumstances. Some jerks will even get a certain amount of work from you before pulling out because that’s what they intended all along. This happens a lot less when you have clauses that cover cancellation.
Always make sure you:
Include the right to charge for work completed (including project management and communication)
Make your deposit non-fundable
Outline any contract exit payment fees
And the number one clause with job cancellations-
Make sure you hold onto the project IP until the bill is paid in full.
The reason why you do this is it stops a client from complaining about your work, not paying for it, and then using a draft as the finished product. For the IP rights to transfer from you to the client, you want that bill paid in full.
Scope creep
Freelance jobs can commonly change shape during production. This can happen because you’ve got a great relationship with your client and the idea sharing is flowing.
Or it can be because your client doesn’t really know what they want and keeps changing their mind.
In order to avoid scope creep, you need to include:
A briefing process to lock down the project specifications
Ensure you have charges listed for additional work
Email the client as soon as additional work enters the equation to remind them of your additional charges
Further IP obligations
In order to ensure a project isn’t a copy of someone else’s that you don’t know about, or so that someone else doesn’t copy the work of your client, you need to list how IP for a project is treated.
This includes but is not limited to:
The client being responsible for registering trademarks, URLS and any branding associated with their project
You taking responsibility for keeping your trap shut about their work while you complete it. Meaning you won’t share key parts of the project with other people that may lead to their idea being stolen, copied or otherwise put in jeopardy
In the event your client has stolen someone else’s idea, you are indemnified from legal claims of all kinds (so you can’t be sued along with or instead of the client)
Acts of God/Dog etc
As terrible as it sounds, some clients won’t take floods, fires, your electricity going down and other major natural and man-made disasters as an answer as to why work was not completed on time. That’s why you should always include a force majeure clause in your terms and conditions.
Sassy optional extras that truly help
Rates
Some freelancers will set down their hourly and daily rates for standard work and/or any additional fees that may be charged such as rush charges, after hours work and regular maintenance.
If you have retainers for regular work (such as social media management, supplying hosting or web support or contract hours for agency roles) you may also wish to include how these fees are charged. For example, if you have a minimum term of the length of retainer or when regular charges are billed.
You will also need to include a clause that any additional costs are covered by the client. This covers you against ending up paying for essential research items, plugins, hosting, printing, room hire, their staff coffees, and essential software and so on.
Project limitations
If you write SEO copy and the Google algorithm changes or their competitors are better at giving Google what it wants in terms of blogging and AdWords, you need to be able to protect yourself from a client saying a project hasn’t worked.
Or if you shoot a TVC and the ad doesn’t build the sales they want, you produce a press release no one wants to pick up, design something that no one wants to take a copy of and so on- you need to outline you are accountable for the work quality, but not the sales success of what you create.
There are two instances where project limitations are very important in terms and conditions:
Making sure that if your client changes your work or has it redone, it’s not your fault the changes have rendered the project unable to perform
When your work is influenced by outside forces (such as Google)
Don’t put yourself in a position where you are promising outside of what you can reasonably deliver. This is especially important with clients that are chasing Google rankings or who want to interfere with the work only to come back and blame you if it fails.
You can’t promise silver bullets that will fix all their marketing woes.
The best way to work this into your terms is to outline your roles and responsibilities and outline the reliance your work has on other aspects- such as Google, the law, editing processes, expertise, audience adoption, and so on.
Inspiration with writing your own terms and conditions
We all have processes and needs that have to be covered. Here are some of the ways you can determine what terms and conditions will work for you:
FAQs – if you are tired of answering the some old questions, you can write an FAQ. If you are tired of people trying to monkey with your setup, turn it into a TnC
Travel time- Consider travel time to and from meetings, fees for additional meetings etc
Outline your briefing and revisions process
Superannuation and taxation- this may need to be spelled out if you have specific needs, especially with contracts
Factual information- you may wish to indemnify yourself from legal action should any information a client wants you to incorporate is not factual now or in the future
Privacy policy- how do you deal with a client’s privacy? If you are ghosting, what does this entail? If you are building software or a website that contains member information, what do you do to secure this information?
Software and programs you may use- if you are a web developer, you may wish to outline your preferred platforms, whether you will or won’t accept plugins, how your work is completed and how payment gateways work
Support and maintenance- if you offer support, outline what your support does and doesn’t cover and how it is managed
Think about things that may impact your work- for example, what happens if your work is online and it gets hacked? Or if you shoot film and your shoot is rained out? What happens if you need specific information from the client and they don’t supply it by the due date? What if something your client does means you’ll miss an important deadline? What happens in moments where equipment fails?
What can your reasonably take responsibility for- think about yours and your clients roles and responsibilities in creating a project together
Dispute management- if they become upset over the work you are doing, how are disputes handled
Outline how you prefer to work- for me, I hate phone calls and won’t travel for a meeting, so I do what I can to discourage clients in this regard. What sorts of things make your life harder then they need to be?
Backups, storage and technical trouble shooting- if you host a client’s website or have their footage on a drive, how does this work and what happens if it fails
Expert knowledge- as a freelance lawyer, accountant, SEO writer, AdWords manager, health writer, niche consultant, psychologist, mediator etc, you’ll need to outline your process in terms of staying up to date with industry practises, continuous education requirements, and specific limitations to the work you provide
Award rates and penalties- some freelancers (journalists as an example) need to be paid according to awards and rates as set down by the government. If this is true of you, it’s a good idea to list them
Acceptance and refusal of jobs- reserving the right to not work with certain companies that cross your ethical boundaries (or if a client looks like an annoying PITA) is perfectly acceptable
Copyright- this pertains to using images and visual elements, who owns the copyright on the work and so on
Refunds policy- if you have one, what does it entail
There are a whole host of different terms and conditions you can add. The trick is finding the balance between what you expect and need to legally include versus what your client will be willing to wade through (or put up with).
If you can afford it, having a lawyer draft your terms and conditions, it’s a good idea that you do. You can also gain advice from places such as MEAA (for photographers, performers and journalists etc), The Institute for Professional Editors (for editors, naturally), Screen Australia via handbooks and publications (film makers) or you can share knowledge with other freelancers and ask advice.
Oh, and always make sure your terms and conditions are accessible to your clients. You can do this by including them on your website as a page and referencing that page as part of the quoting and invoicing process and/or including them in full on quotes and proposals.
ALWAYS make sure you state that payment of a deposit means they agree to the terms and conditions of working with you, so they can’t come back and say “but I didn’t read them!â€
Some sample terms and conditions
There is always a danger in copying other people that you don’t have all the information you need, or that the information may have issues. However, it can be helpful to take a look at some terms and conditions and see what others include for your own piece of mind.
For the straight legal terms http://www.katetooncopywriter.com.au/terms-and-conditions/ and http://sarahmortoncopywriter.com.au/terms-and-conditions/
Short and sweet http://www.phasecreative.com.au/freelance-terms-and-conditions/
My example is a little off the wall, but you get the idea http://unashamedlycreative.com.au/terms-and-conditions/
Your homework assignment:
Write down the standard items you need to include in your terms and conditions
Write down the non-standard items (such as travel time, how you brief and so on)
Write your terms and conditions
Choose where you will be promoting your terms and conditions (in your paperwork, online or both) and make provision for them to be added
Review your terms and conditions against other freelancers or (preferably) with a lawyer or legal service
Add these terms and conditions to your quoting, briefing and invoicing procedures
You should have been finished your popcorn by now, so you better wipe the butter off your fingers and get back to work.
See you Wednesday!