Should Freelancers Present Their Own Contracts, or Agree on a Single Document?

The age-old debate in the world of freelancing and client work revolves around whether it's better to present your own contract for the other party to sign, or to agree on a single, amended contract. This question is particularly relevant in light of Jodie Rosello's observation that while two contracts are not ideal, most clients are reluctant to spend time editing the contract drafted by their lawyer.

The Realities of Two Contracts

While two contracts might seem like a fair compromise, in my experience, the second contract rarely includes important elements such as:

A kill fee for early termination A detailed schedule for deliverables and payment milestones, historically favoring immediate payouts for design work and staggered payments thereafter An outline for handling stock imagery expenses Details regarding final ownership of work, both before and after payment completion

In the rush of time and practicalities, these crucial details often get overlooked, leading to potential disputes down the line.

Opting for a Single Contract

To avoid such conflicts and streamline the process, it's advisable to have a comprehensive contract that serves as the dominant agreement. A well-crafted and lawyer-reviewed primary contract ensures that any annexed agreements or documents are secondary and subject to the terms of the primary contract. In case of contradictions, the primary contract should prevail.

Who Provides the Contract?

In a freelancer-client relationship, the party who drafts the contract usually has more experience, sophistication, and bargaining power. They are more likely to have a standard contract handy and an economic interest in using it. While both parties might have similar experiences, in the absence of equal negotiation power, the freelancer is often better positioned to provide the primary contract.

A freelancer providing a contract signifies a practical approach to business. Independent designers, for instance, often have a tried-and-true agreement that suits their needs and is familiar to them. Once both parties agree on the project scope, the master contract can be easily signed, ensuring that the project is well-defined from the start.

Outlining Project Needs

The specifics of the project also play a crucial role in determining which party should provide the contract. For example, an independent restaurant hiring a designer for a logo and website will be primarily concerned with timely, quality deliverables and ensuring ownership of the final product. In contrast, a technology startup outsourcing a small development project might prefer to use a standardized contract to avoid managing numerous agreements with varying terms. At the extreme end, working for companies like Apple or Microsoft would necessitate the use of their contracts.

Contract Negotiation Tips for Freelancers

To protect yourself and your clients, it's essential for freelancers to have a well-prepared, fair, and reasonable contract. This preparation is part of providing quality services. Understanding and explaining your contract to clients is key. Clients who don't make this effort can be a red flag, and some may not even want to consider the time investment.

When reviewing client contracts, be prepared to identify unreasonable terms. Some client-side agreements might assign all work to them, regardless of payment, or allow for immediate cancellation without compensation. They might also shift all risks of infringement onto the freelancer, even for third-party materials provided by the client. One-sided confidentiality and non-compete / non-solicitation clauses can also be a concern, as can clauses denying portfolio rights.

While it is important to recognize times when clients have legitimate, well-reasoned terms, it's also crucial to be aware of when these terms are unbalanced and could lead to unfair situations. By being knowledgeable and prepared, you can navigate contract negotiations effectively and ensure both parties are protected.

Conclusion: Whether you present your own contract or agree on a single, amended document, the key is to ensure that the contract serves as the primary governing document. A well-prepared, fair contract is essential, and understanding the terms is paramount to a successful and smooth working relationship.