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Show HN: Crowdsourced freelance contract template, written in plain language

299 pointsby jackmover 6 years ago

17 comments

dangalmost 2 years ago
(4-1&#x2F;2 years later: The submitted URL was <a href="https:&#x2F;&#x2F;plainfreelancecontract.com&#x2F;" rel="nofollow noreferrer">https:&#x2F;&#x2F;plainfreelancecontract.com&#x2F;</a>, but it links to malware now, so I&#x27;ve replaced it with an archive.org link.)
tptacekover 6 years ago
I&#x27;ve seen this idea done a couple of times and it seems like the major problem with it is that while it probably works for small clients and impromptu projects, any client with a legal team is going to either reject it, or redline in so much legalese that the contract doesn&#x27;t win you anything because you&#x27;ll need legal review anyways.<p>I do most of our first-round contract review (we almost always end up getting things reviewed but once in awhile you get lucky and can accept a contract without it) and snags I&#x27;ve hit that this contract seems likely to hit:<p>* Doesn&#x27;t establish independent contractor relationship<p>* Asks for no pre-approval on expenses<p>* Non-mutual indemnification<p>* The contract as written is assignable, so you can sign it and immediately sell the contract to someone else<p>There&#x27;s probably a reason why Confidentiality agreements in normal contracts are a page long rather than just two sentences, too, but I don&#x27;t know what that is.<p>I love that it&#x27;s just a Google Doc though.
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ruairidhwmover 6 years ago
I&#x27;ve seen quite a few of these and whilst I love the idea, they usually have a ton of problems in them.<p>As tptacek pointed out - there is no chance that this document would survive first contact with a sophisticated party and any qualified lawyer would likely rip this to shreds.<p>Firstly there is no regard to the potential jurisdiction that the user chooses. If I were to put in England then that would mean there are different contractual implications to choosing Scotland. Ditto for states in the USA. A layperson won&#x27;t know this, and a lawyer would need to review the provisions.<p>There are also a ton of generalised terms in this document where things like &#x27;intellectual property rights&#x27; aren&#x27;t defined. These aren&#x27;t generic terms and in the event of a dispute, language really matters. There is a reason why contracts are much longer when professionally written.<p>This isn&#x27;t to attack the idea, I&#x27;m hugely in favour of open access to legal documentation, but people need to realise that most legal work is bespoke - even if law firms do it on a &#x27;churn&#x27; basis. This is a great effort to further open law but it&#x27;s dangerous for people to rely on this.<p>Source: I&#x27;m a software engineer and a qualified lawyer
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kemitchellover 6 years ago
Haven&#x27;t had a chance to review yet, but I will, and I strongly support this effort!<p>In fact, I wrote and published a plain-language contractor agreement of my own, Fairshake, some time ago.<p><a href="https:&#x2F;&#x2F;commonform.org&#x2F;kemitchell&#x2F;fairshake&#x2F;current" rel="nofollow">https:&#x2F;&#x2F;commonform.org&#x2F;kemitchell&#x2F;fairshake&#x2F;current</a><p>I&#x27;ve also published Switchmode, an independent contractor agreement for software developers doing mixes of open source and closed source projects for their clients:<p><a href="https:&#x2F;&#x2F;github.com&#x2F;switchmode&#x2F;switchmode" rel="nofollow">https:&#x2F;&#x2F;github.com&#x2F;switchmode&#x2F;switchmode</a><p>I&#x27;d love to collaborate on terms, and potentially on standardization. For my latest and best on how to bootstrap standard commercial terms, have a look at the Canting Tribe NDA, a self-marketing nondisclosure agreement:<p><a href="https:&#x2F;&#x2F;nda.cantingtribe.com" rel="nofollow">https:&#x2F;&#x2F;nda.cantingtribe.com</a>
lgleasonover 6 years ago
This is definitely missing a lot of protections for both sides.<p>An interesting story.<p>I have a standard contract I usually use with startups etc. that is written to be fair to both parties and vetted by multiple attorneys. One that I worked with insisted that I use theirs. When I went through it, it was clear that they took it from a template and there were numerous holes in it that I pushed back on. They stated that all of their other contractors used it successfully and I replied that these people must not have read the contract.<p>It was at that point that I pointed out that the jurisdiction, &quot;Orange County Georgia&quot; does not exist (they had obviously copied it from a California template or contract) among other things. Against my better judgement I re-wrote their contract and used it. They ended up being a major pain in the ass client that was really bad at basic communication. IE: would not answer direct questions in writing with yes or no answers.<p>Contract negotiations are often a sign of things to come with the rest of the engagement.
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aiisahikover 6 years ago
I love the idea behind this - so many contracts are unnecessarily impossible to read.<p>However, I am going to be really honest - as the CTO of a company who regularly hires freelancers and as a former lawyer, I would never sign this contract if the freelancer I was using sent it to me.<p>Section 2.1 is much too weak and will give the hiring company problems if they were undergoing diligence for an equity round. Please consult any IP lawyer if you doubt me.<p>Less of an issue but section 1.4 also does not restrict the nature and amount of expenses.
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SimonPStevensover 6 years ago
Just worth noteing this looks specific to the US freelance&#x2F;contract market.<p>I can only speak for the jurisdiction I know (and I am not a lawyer, just a former freelancer), but in the UK this contract would not be suitable for someone wishing to operate outside of IR35 (disguised employment rules) as it makes no mention of substitution, direction or control, which are the key factors when determining IR35 status.<p>Not necessarily a failing of the project, but perhaps it could mention more explicitly that it&#x27;s for US jurisdiction<p>(For UK freelancers I recommend looking at IPSE membership which includes access to their contract templates which are good and commonly accepted as standard contracts)
rv-deover 6 years ago
What I don&#x27;t get. And I suppose I am speaking here for 99% of all developers without a background in law.<p>How can it be so difficult to create a contract framework? How can there possibly so many variations on that theme that you need a lawyer to do that?<p>I do understand that there are circumstances where legal advice is necessary. But at least 90% of all freelance (and other) contracts should be coverable with a manageable number of if-else-conditions.<p>Also the question whether the framework is applicable should be answerable through a couple of if-elses.<p>I can&#x27;t wrap my head around it.
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lshover 6 years ago
I really hate legalese. It has always struck me as a tool to browbeat one or both parties into a false sense of security by trying to account for every possible scenario (and failing or worse, contradicting itself).<p>I wrote my own contract that is written plainly, I borrowed the bulk of it from a similar effort to this one and heavily modified it. It acknowledges that it is written plainly and that where any ambiguity exists, it&#x27;s presumed both parties are reasonable and responsible, are not malicious and that all effort will be expended to resolve problems as such before resorting to the legal system to settle a dispute.<p>The most important and most complex part is indemnification. You don&#x27;t want to mess that section up. It outlines who is responsible, how responsible, type of responsibility and <i>where</i> they are responsible (if you are in a different part of the country or world). It has to fit with whatever your professional indemnity insurance is.<p>The Client has the opportunity to suggest changes if something is important to them - but only up to a point.<p>It works for me and I don&#x27;t work for huge or faceless organisations, ymmv.
patrickbolleover 6 years ago
I like this. Maybe make the Github repo available for people to make pull requests and issues and such? That would make it much more &#x27;crowdsourced&#x27; imo.<p>The freelance community is really missing some good open source &#x2F; legit free software and resources, I hope more things like this pop up.
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chiefalchemistover 6 years ago
Presuming this isn&#x27;t going to be used for anything five figures and up, then I&#x27;d say the more important document for a freelance gig is the Scope of Work. The crux of the SOW is expectations. The contract - for (smaller) freelance work - imho doesn&#x27;t come into play unless the expectation set (or not) by the SOW goes sideways.<p>While the contract defines the legal CYAs, etc, the SOW help define the relationship without all the heavy-handed language gymnastics.
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manggitover 6 years ago
Sounds like you should join forces with Anvil (Show HN post: <a href="https:&#x2F;&#x2F;news.ycombinator.com&#x2F;item?id=18923229" rel="nofollow">https:&#x2F;&#x2F;news.ycombinator.com&#x2F;item?id=18923229</a>) and make this contract free to fill out online :)<p>Full disclosure, I am a founder of Anvil
kemitchellover 6 years ago
A few comments from my first quick skim, in appearance order.<p><i>If you need a good contract, don&#x27;t be a dufus. Hire a lawyer who will ask questions and stand professionally accountable to you. I am doing neither here.</i><p>GitHub Link: GitHub can be good, but you really, really have to use Markdown, one paragraph per line, or at least another supported prose format, to get much collaborative benefit. You want good prose and word diffs.<p>Instructions: Listing out the blank placeholders first, with instructions to find-and-replace, is a neat approach. It pays to think about how form contracts will get handled.<p>Preamble: There&#x27;s no need to spell out party names there, though it&#x27;s traditional. If their info appears on the signature page, it&#x27;s clear who&#x27;s entering the contract. DRY.<p>Payment: I&#x27;m not quite sure which rate structure you have in mind, but it looks like an &quot;x% up front&quot; kind of thing, where the up-front payment is nonrefundable, and the balance is due on completion.<p>Expenses: I routinely advise clients to strike language authorizing contractors to incur and pass through whatever expenses they like. Reimbursement&#x27;s usually limited to expenses set out in the contract&#x2F;SOW, expenses preapproved by the client in writing, and possibly expenses below a threshold amount each, and an aggregate. On the latter think: &quot;I&#x27;ll reimburse you for expenses below $20 without approving first, but don&#x27;t not more than $100 worth.&quot;<p>Invoices: Lawyers write additional payment obligations for late payment as interest, in order to avoid, first, courts reading the terms as penalties rather than agreed estimates of the damage late payment would cause, and therefore unenforceable, and second, to avoid usury laws that limit rates of interest.<p>I would be very surprised to learn that most contracts on this form actually complete on the scheduled invoice date. When contracts specify payment on completion, it usually goes: 1) contractor sends deliverables, 2) client accepts, or a deadline to accept or reject comes and goes, 3) contractor bills. Acceptance deadlines can be short. Depends on the work and the client.<p>Revisions: A fallback hourly rate can be a very good idea, depending on the work. Those interested should have a look at the form packet AIGA published for design contractors. I could improve on specific language in that packet, but its substantive coverage is good for many solo and small-studio designers I know.<p>Ownership: I would definitely advise being more explicit. In general, copyrights move from authors to clients in two ways: assignment and &quot;work made for hire&quot;. Since not all copyrighted work can be &quot;work made for hire&quot;, it&#x27;s a good idea to spell out the mechanisms by which everything goes over. Also, beware of California work made for hire statutes tying to employee status:<p><a href="https:&#x2F;&#x2F;writing.kemitchell.com&#x2F;2018&#x2F;05&#x2F;31&#x2F;California-Work-Made-for-Hire.html" rel="nofollow">https:&#x2F;&#x2F;writing.kemitchell.com&#x2F;2018&#x2F;05&#x2F;31&#x2F;California-Work-Ma...</a><p>That being said, under our new California ABC test, I&#x27;m not sure who <i>isn&#x27;t</i> arguably an employee. But I digress.<p>And that&#x27;s just copyrights. Clients want patents covered, too.<p>Authorship: I would rename this &quot;Portfolio Use&quot; or similar, and also make it more explicit. Again, I believe AIGA covers this.<p>Confidentiality and Nondisclosure: Either &quot;Confidentiality&quot; or &quot;Nondisclosure&quot; would suffice. I&#x27;m all for short, pithy NDAs. But I don&#x27;t think this is a very good one. A marking requirement gives a lot of clarity, but very few companies actually do that. NDA obligations typically don&#x27;t survive perpetually.<p>I&#x27;d put a term in saying that the client and contractor will sign an NDA on a separate, standard form. Plug: <a href="https:&#x2F;&#x2F;nda.cantingtribe.com" rel="nofollow">https:&#x2F;&#x2F;nda.cantingtribe.com</a>.<p>Non-Solicitation: Stated too broadly. And probably unnecessary, for freelancers working for companies.<p>Representations: The rep included is common, but also kind of pointless. What happens if the side signing <i>doesn&#x27;t</i> have authority to contract?<p>The key reps in freelance design, software, and other creative contracts cover IP. Specifically, that&#x27;s where contractors typically guarantee that they aren&#x27;t plagiarizing others&#x27; work, or including outside material they haven&#x27;t the rights to license.<p>Term and Termination: Seven days is short, but termination at will is common. It&#x27;s not clear how to calculate fees pro rata, given the x% up-front payment. If the client terminates the freelancer because they&#x27;re terrible, does the client have to pay them more money? Only if they&#x27;re &gt;x% into the scheduled length of the contract?<p>Limitation of Liability: As I mentioned about reps above, deliverables usually <i>do</i> come with explicit reps. However, the terms usually <i>disclaim</i> reps not in the contract itself, like reps implied by law, by default. Damages cap at fees paid is typical.<p>Indemnity: The <i>Client</i> indemnifies the <i>Contractor</i> for the <i>Contractor</i>&#x27;s work??? Typically, Contractor would indemnify Client, for damages related to breach of IP reps and employee reclassification, and perhaps others. Client might indemnify Contractor for providing materials for use in deliverables that create IP or other issues.<p>I have <i>not</i> commented on terms that I think this form is missing. Cost-benefit of including more terms to head off more kinds of potential issues differs by contractor and client, and definitely tends shorter for smaller parties and smaller dollar amounts. But this feels a bit lean to me, for just about anybody.
_keatsover 6 years ago
Unrelated to the contract itself but that&#x27;s probably a couple more call to action buttons than needed.
grabehover 6 years ago
Is this being shared with a view to getting more contributors or is it being shared with a view to it actually being used at the moment? If the latter, I would have serious reservations if someone put this in front of me and asked me to sign, whether from a client or contractor perspective. If you&#x27;re going to ask the client to use their time to read this, it&#x27;s good to present something which isn&#x27;t so one-sided in favour of the contractor. They&#x27;ll probably just send over their standard form and get you to sign. Instead you could present something balanced which a client might actually be inclined to enter into.<p>IP rights: All rights are assigned. Most projects will be more nuanced than this in terms of IP split, both in terms of pre-existing IP and third party&#x2F;open source IP. Both these are ignored. I would expect there to be more nuance around this. This may give more comfort both to the client and the contractor in terms of knowing what they are getting, and what they are handing over respectively. Also, no mention of moral rights, which you would usually expect to see waived, or at reference to copyleft restrictions.<p>End dates: This provides an absolute commitment to deliver work by a certain date. I don&#x27;t think this is advisable from a contractor&#x27;s perspective. At the very least it should be made subject to timely receipt of client inputs.<p>Non-solicit: Plain English seems broader than a standard non-solicit. Usually a standard non-solicit would link to employment by the solicited person by the soliciting entity or solicitation being for the benefit of the soliciting party. This just states any action to encourage someone to leave is a breach. Also, it&#x27;s more normal for this to be reversed so that the client is restricted from soliciting employees of the contractor (obviously not as relevant in a single freelancer scenario though).<p>Term and termination: Sure, flexibility over termination is a good thing (because if it&#x27;s not working, it&#x27;s not working), but giving the contractor the right to terminate on 7 days&#x27; notice is likely going to lead to objections from the client, when in most cases the contractor should be willing to commit to a job or at least a longer notice period. On the flip-side, giving a client a termination right on 7 days is more understandable but certainly from a contractor&#x27;s perspective I think more certainty over contract duration is preferable.<p>Indemnity: Client -&gt; Contractor indemnity is obviously preferable from a contractor perspective, but any client is going to want to have a reciprocal indemnity, or at least an indemnity in respect of third party IP. Generally considering the client will have leverage, it&#x27;s important to acknowledge that. Presenting a document with a client only indemnity risks that in my view! In some ways it&#x27;s probably better not to put the word indemnity in a contract sent to a client, because it&#x27;ll just make them start thinking about what indemnities they should take from you, and whether or not they should send this to their lawyer&#x2F;legal department (if they have one).<p>Jurisdiction: In most jurisdictions, you would get away with these kinds of general legal provisions. However I would usually expect some thought to have been given to local law.<p>Payment: Giving the contractor the right to add interest to overdue sums is often a powerful tool to ensure you get paid. In the UK at least we have legislation to that effect so it doesn&#x27;t necessarily need to be stated (but often good to bring to the attention of the client anyway).
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kemitchellover 6 years ago
Obligatory Segura ref: <a href="https:&#x2F;&#x2F;m.signalvnoise.com&#x2F;my-kind-of-contract-e7327e98e3ea" rel="nofollow">https:&#x2F;&#x2F;m.signalvnoise.com&#x2F;my-kind-of-contract-e7327e98e3ea</a>
mychaelover 6 years ago
You get what you pay for :-)