You may have to, if you want the work.
The annoying thing is, you see most of this paperwork silliness with the larger, busier clients: big corporations, universities, big publishers, big agencies, tech firms. They have money, they have work, so they have paperwork.
I am talking about NDAs (Non-Disclosure Agreements, or Confidentiality Agreements) and Vendor Contracts (or Independent Contractor Agreements, Work-for-Hire Agreements.)
I have signed dozens and dozens of these things. I didn’t want to make waves, and I wanted the assignments. So I signed.
After a while, I started reading these things I signed.
That was very instructive.
I figured out what’s behind these species of paperwork. And learned when to just sign them and shut up. And, just as important, when not to be afraid of them and push back.
You can read plenty about these things all over the web. With commentary from people smarter than me.
But here’s my street-level view. (Of course, I am not a lawyer, so pay no attention to what I say at all. This is just for entertainment purposes.)
I once signed an NDA and managed to violate it within eight minutes. I sat down to dinner with my wife and said “It looks like I’ll be working with XYZ Corp after all.”
Bzzzt. Breach of contract.
The NDA forbade me from saying I was working with the company at all. Which I didn’t know till a few days later. I worried that men in dark suits would appear at my door with legal papers and handcuffs. They haven’t shown up, so far.
The idea of an NDA does make perfect sense. The client is telling you “In doing this project, we may give you sensitive or proprietary information that could harm our business if it ever got out. So keep your mouth shut or we will sue you.” I get that.
But here in the real world, I suspect most NDAs are based in paranoia or vanity, or both. In some 126 years of freelancing I have never been privy to any information that would be the least bit interesting to a competitor. Mostly it was not even interesting to me. And I certainly never saw anything like a secret pickle recipe that I could sell for cash in an alley.
Tech firms love NDAs because they believe they have ingenious algorithms and clever monetization plans. Big corporations use NDAs because, well, they have lawyers who draw up NDAs. Smaller firms use NDAs because it makes them look like bigger, more important firms who have NDAs.
I once asked the director of a design agency about the provisions in paragraph 14 in his NDA. He didn’t know there was a paragraph 14 or what it said. They had downloaded a generic NDA from the web. He couldn’t understand the paragraph either, so he scratched it out. I signed and we went out for beers. Nothing bad happened.
My practice now: When a client sends me an NDA, I read the thing. And if I can understand it, and can live with it, I sign. I consider it a low-risk move. I have never heard of a freelancer being sued penniless because of an NDA. Then I keep my mouth shut. Which is good practice anyway. Don’t blab about what your clients are doing.
One thing I never agree to is a Non-Compete Clause, which forbids me from freelancing for a company in a similar business for X years. Unless they’re paying my salary for X years, I ain’t signing that. I’ve only seen such a thing twice. Both times I refused to sign and didn’t get the assignment. But maybe I am too ornery.
The Vendor Agreement, Contractor’s Agreement
Don’t let the label fool you. The Vendor Agreement isn’t about ‘agreeing’. It’s a contract designed to protect the company — to protect the company against you.
I recently received a ‘Contractor’s Agreement’ from one of those giant corporations with three initials. It came by FedEx and was 46 pages long. They must have been plenty scared of me, to need 46 pages to ward off all the havoc I could rain down on them from the spare bedroom where I work.
Here too, the idea of the document is sensible. They’re saying, “We are hiring you to do some independent work for us, not as an employee, but as a contractor/freelancer. You supply the materials and such, we pay you, we own the work, and you move on. Don’t ask us for benefits.”
In practice, however, it becomes a very long list of:
– Things you have to do
– More things you have to do
– Things you have to do, to the letter, if you want to get paid
– Things they will not do, and are not responsible for
– Things they can do to you.
Same idea here. Read the thing. If you can understand it, and live with it, sign it. Pay particular attention to the parts where they explain the hoops you must jump through to get paid. I write those parts on sticky notes above my desk.
But if you can’t understand it, or can’t live with it, try to push back.
Deal killers for me: When they want you to purchase General Liability Insurance, Errors and Omissions Insurance, Workers Compensation Insurance or stuff like that. That’s a lot of money I have to pay for protecting them. I don’t do that. (But don’t go by me. Google it.)
Rule of thumb: The more pages in the Agreement, the lower your chances of getting anything changed.
A four-pager from an agency or design group? You can usually negotiate a thing or two if need be. Or at least try to.
That 46-pager from the three-letter corporation? They said, ’Take it or leave it.’
I left it. And sort of felt okay with that, being an ornery independent and all.
But don’t go by me.
April 6, 2017 @ 6:02 pm
Not having worked for a traditional publisher in years, just self-publishers and the occasional university press, I’ve had a number of NDAs (from the former) to sign. Generally, I’ve found they were designed to assuage the sense of the self-publishing authors against the feeling that anyone would want to somehow purloin the words, pics, and wisdom of an unproven, unheard-of author and would-be expert. But I never found anything more than “don’t show my workto people.”
April 6, 2017 @ 6:25 pm
Hoo boy, this reminds me of one of my first freelance jobs which was basically taking over an RFP process for a medical college. I took it seriously, got general liability, and then spoke through euphemisms with firms submitting bids who wanted (and needed) to know who they’d be working for. Crazy. And I undercharged them.