AMA on Becoming Fluent in "Legalese" with Brionna Ned

Jimmy Daly
May 31, 2023

Brionna is a retired corporate lawyer turned entrepreneur and educator. She offers freelancers and small business owners a flat-rate fee contract review service to help them better understand and negotiate their contracts.

This AMA focuses on how freelancers can master "legalese." People asked about:

  • Strategies for getting paid
  • Creating simple agreements with your clients
  • Handling intellectual property issues...and more!

You can connect with Brionna on Twitter and check out her website here

How do you recommend handling NDAs with clients, especially when your workforce is primarily part time freelancers?

Hmm, if you already have a confidentiality agreement in place with your workforce to keep client info confidential, then clients should not also require the individuals to sign their NDAs. You're right to push back on this. I would offer to let them see the confidentiality provision in the agreement that all your part-time contractors sign to work for you and see what happens.

Honestly, if they don't take your word on this that your people are confidentiality bound, it's probably better that they walked. There's a misalignment of values/distrust from the start.

I'm wondering about some of the most common red flags you see in freelancer contracts? Either from the client side or the freelancer site - what are some things to watch out for?

I was JUST working on this slide for my latest course so your timing is perfect. In contracts you get from the client, here are my top things to watch out for:

1. Definition of intellectual property is always too broad and tends to include your proprietary business processes /methods you've developed that you use for every client. You almost always need to exclude this.

2. Payment terms. I always tell my customers to find out how long it will take to get paid as soon as possible so you can budget accordingly and set up a payment schedule to get paid as fast as possible.

3. Insurance/indemnity: Clients often want to have their cake and eat it too. They want to have final approval over deliverables AND require that you indemnify them and have insurance. They get final approval OR they can ask for indemnity. Insurance is absurd unless we're getting towards a 6-figure contract.

The insurance piece is also part of the same contract you just advised me on. So it's reasonable to ask for that clause to be removed too?

Generally yes! But depending on your client, they may not agree. When you do the contract review service, we'll troubleshoot it. Some clients are super unreasonable about these things, but there's ways to work around them/get connected to the right people to get what you need.

Sara: A few of the most common things I ask clients to revise are a) overly broad non-compete language—I usually explain that I need to protect my ability to earn a living as a content writer within niche industries, so that’s an automatic dealbreaker for me, and they remove or revise it; and b) an unexpected limitation on my ability to use their name or my work samples on my website or portfolio—I usually explain that samples of my work are what prove my ability to deliver and generate future work, and if the content I’m producing is not able. to be shared publicly, I charge more to compensate for that lack of portfolio-building, similar to ghostwriters. That usually gets them to just remove it.

Below is a clause in an agreement a client is asking me to sign. My concern is that what we're marketing could have some risk involved b/c it involves corporate training sessions on a sensitive topic (think mental health related). Am I exposing myself to too much risk here? In the past, I've requested a modification to indemnity clauses. I'm not sure if I should push this one b/c it doesn't strike me as egregious, yet the subject matter makes me a bit more concerned. "Indemnification: Contractor agrees to indemnify, defend, and hold harmless [client] and its officers, employees, agents, and licensees from and against any and all claims, actions, damages, liabilities, and expenses arising out of any action of Contractor, including but not limited to the breach of any obligation, warranty, or representation of Client in this Agreement."

Your spidey sense is right! This is way too broad. It's hard for me to give specific advice without looking at the whole contract and the service you're providing (I have a contract review service if you need), but as a wellbeing entrepreneur myself, I would just ask to have the indemnity provision taken out. It's a workshop.

How much detail would you recommend giving in my request to remove that clause? Should I get into the "work for hire" nature of our relationship or simply ask them to remove it?

Sometimes asking them why they need you to have insurance for the service you're providing is helpful to make them play out the potential scenarios in their head and see that it's unnecessary. Same for indemnity.

There’s a clause that’s giving me pause. ‘Writer acknowledges and agrees that Company will only pay writer for articles that are published, and Company has the sole and exclusive authority to determine whether or not to publish any and all Articles submitted by Writer.’ I’ve not come across this before, anyone getting any red-flag vibes off this?

RED FLAG RED FLAG! You get paid for articles your deliver. It's not your fault if they don't end up using it. Your service is to write the article, not ensure it gets published. They are deciding what to do with it and you shouldn't get punished for their publishing decisions.

Any tips for collecting outstanding payments from a client without burning the bridge?

This is tough. After you've sent a couple friendly emails, I always prefer a phone/video call as a reset. We tend to be unhinged via email and live conversations are a good way to get to the bottom of things. If this is a client you're doing recurring work for, you can withhold delivering further work until you're paid for previous work OR you can include unpaid invoices to your next invoice.

For clients that have purchasing/procurement departments, I always suggest a phone call and I also suggest having a point person in purchasing/procurement so you can figure out what the hold up in payment is.

Are there certain types of insurance that freelancers should have?

Hmmm, I'm admittedly not an insurance buff, but I do tend to think it's overrated if it's just you. If you have a team, I think general insurance and professional liability insurance to cover your team is a good idea. But that's about the extent of my knowledge. Sorry!

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