If I had a dollar for every time a freelance terms and conditions could have potentially saved someone from an issue, I could totally afford the cute little VW camper I have my eye on. Terms and conditions are something freelancers struggle with. I don’t know what the disconnect is. OK, yes I do. They come in three forms:
- Failing to have freelance terms and conditions
- Failing to have freelance terms and conditions that are robust enough to cover your self-employed butt
- Having freelance terms and conditions but failing to enforce them <cue protests about basic business civility and not wanting to scare the client here>
I’ve heard pretty much every excuse you could possibly think of for a freelancer to be caught without a deposit, a 47 round scope and/or client refusing to pay for work delivered that you could think of.
All of them can be avoided by having freelance terms and conditions. As well as the confidence to enforce the terms and conditions if things go south.
If you don’t have terms and conditions, make some! They are your protection.
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.
But I work with clients who have their own terms and conditions. Isn’t that good enough?
Goodness no! Agencies, NFPs, startups and government bodies often use a multitude of terms and conditions. They write them to protect their interests. Not yours. 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 freelance talent to ensure they get the right person.
Second, it’s also illegal to offer non-negotiable contracts in Australia. Law passed in 2011 protects your right to question and negotiate conditions that are favourable for both parties.
So why would you want to challenge the conditions of a client?
You should look over all the terms and conditions of your contract with a freelance client. 4 especially tricky spots for freelance terms and conditions to come back to bite the bottom of the freelancer wearing them are:
- Non-compete clauses- this is to stop you from sharing what you learn with one company with their competitor. 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 prohibit you from working in your field of expertise for that period. Always make sure that a non-compete clause restricts the sharing of information, not your right to work.
- Payment terms- large blue chip companies and not-for-profits 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 long time for a freelancer to work a contract without payment. Your client’s cash-flow is not your responsibility. Ask 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 as it protects your work from being used without payment.
- Liabilities – any client that makes you liable for the information they provide should be greeted with a raised eyebrow. You shouldn’t accept the responsibility for fact checking the information they provide. This is especially true when giving out legal advice, medical information and/or in instances of consumer backlash.
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 have any kind of coverage should a dispute arise.
You MUST have freelance terms and conditions- they are not optional.
They protect you from being screwed over. They make you look professional. It’s easier to get paid and to avoid hostile client situations with TnCs.
Don’t kid yourself- people are not always wonderful, fair-minded or sane. Having a baseline of accepted engagement is an excellent way to ensure you face fewer issues than most.
Areas that you should include within your freelance terms and conditions are:
- How much of a deposit is charged (e.g. 50% or milestone versions)
- How many rounds or amends your work includes
- Whether their are rush fees and additional fees such as travel time or meeting time
- How you charge for items such as stock footage, photos and other incidentals that help you do the work
- What your payment types and terms are – and when a payment is regarded as late (check with your state equivalent of Fair Trading as to what late fees you can and can’t legally charge)
- How long your quote is valid for (usually 30 days to avoid people turning up 4 years later)
Your first step to robust terms and conditions:
Download this questionnaire and setup your conditions properly. TEMPLATE – terms and conditions
If you can afford it, having a lawyer draft your terms and conditions, it’s a good idea that you do.
Copying off someone else (or using my template) will only get you so far. To ensure you’re truly operating within the law, you should have a lawyer check them.
You can also get advice from the following places:
MEAA (for photographers, performers and journalists etc)
The Institute for Professional Editors (for editors)
Screen Australia via handbooks and publications (film makers)
National Association of Visual Artists (for artists, photographers and arts administrators)
Australian Copyright Council (copyright info for all kinds of creators)
Creative Commons Australia (for licensing and advice on protecting your work in the public sphere)
You can also ring the Australian Government Small Business Support Line 1800 777 275
Oh, and always make sure your terms and conditions are accessible to your clients. You can do this by including them on your website and referring to them as part of the proposal.
ALWAYS make sure you state that payment of a deposit means they agree to the terms and conditions of working with you. That way, a client can’t come back and say “but I didn’t read them!”
My example is a little off the wall
What it gets me is assurance clients have read my freelance terms and conditions because they remark on them! Way to go, me! Please note: these are not a substitute for you working through your own with proper advice:
Your homework assignment:
- Use the TEMPLATE – terms and conditions to get you thinking about what you need to explain and cover
- Write your terms and conditions based on those results
- Choose where you will be promoting your terms and conditions (in your paperwork, online or both). Add them to your templates and website
- Review your terms and conditions with a lawyer or legal service such Legal Vision or LawPath
- Add these terms and conditions to your quoting, briefing and invoicing procedures