
Show HN: Crowdsourced freelance contract template, written in plain language - jackm
https://plainfreelancecontract.com/
======
tptacek
I'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't win you anything because
you'll need legal review anyways.

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've hit that this contract seems likely to hit:

* Doesn't establish independent contractor relationship

* Asks for no pre-approval on expenses

* Non-mutual indemnification

* The contract as written is assignable, so you can sign it and immediately sell the contract to someone else

There's probably a reason why Confidentiality agreements in normal contracts
are a page long rather than just two sentences, too, but I don't know what
that is.

I love that it's just a Google Doc though.

~~~
kemitchell
Penny for your thoughts?

[http://commonform.org/kemitchell/fairshake/current](http://commonform.org/kemitchell/fairshake/current)

~~~
tptacek
Looks more like a standard contracting contract. I don't see why the "stop
work" thing is required. I also don't know why a contractor would give up no-
competing-clients; in fact, we'd be a hard "no" on that even if the client
proposed it to us. I think clients will generally push back on an unlimited
right to subcontract, too.

Just to be clear: not a lawyer! Just a consultant who deals with a lot of
contracts in his job.

~~~
kemitchell
Thanks for great comments!

The Stopping Work section wasn't meant to give contractors the right to stop.
If the client materially breaches the contract by not paying, they can get out
of their own obligations. I added Stopping Work mostly because it comes up a
lot, so it's nice to have terms in the contract, rather than background law,
to point to. But also so I'd have a place for the deadline-postponement and
fees-keep-adding-up terms. Those don't go without saying.

I hear you on Conflicts. There's no escape valve in the section for
contractors who _do_ often work for competing interests. I might look into
adding a mechanism there, so the contractor can write in the names of
competing clients for preclearance, that gets signed as part of the contract.

Your toint on subcontracting is well taken, but note that Personnel allows
statements of work to override the contractor's ability to use employees and
contractors at will. When folks use the form as individual contractors, or
when clients use it to hire specific people at firms or studios, the SOW can
specify a named individual, and prohibit subcontracting.

~~~
tptacek
Why is the conflict section in there at all, though? To the extent it's there
now, it's conceding something clients hope to get through redlines; game-
theoretically, it's pure negative for the contractor.

~~~
kemitchell
It's obviously for the client's benefit. But additional turns of the agreement
aren't good for anyone. Clients typically have the leverage to get this. I've
included a fairly contractor-leaning formulation, which requires the client to
act.

~~~
lawnchair_larry
Unlike employees, clients generally _want_ their contractors to have
experience working with competitors.

They also don’t want the contractor to disclose anything about their business
or the project to anyone else, which is why they’ll never expect you to
provide a competing clients list. If they ever start to inquire, that line of
questioning is trivially shut down by pointing this out. You take
confidentiality seriously, and that applies to them as well.

That aside, it’s a ridiculous proposition. They are hiring you as an expert in
this domain because of your experience. If you’d signed such an agreement with
the first company to suggest that, you would not be able to offer your
services to the client.

~~~
kemitchell
You're absolutely right to connect terms about work for competing clients with
terms about confidentiality. You're also right that the value of many
independent consultants---including attorneys---derives directly from diverse
experience within a competitive field.

However, the desire for experience with competitors doesn't exclude valid
concerns about ongoing, concurrent relationships serving competitor-clients.
To borrow from legal ethics, it's one problem to have information from one
client that could be useful to another, and a distinguishable but related
problem to face a conflict of interest, with both sides expecting undivided
loyalty. Terms about work for competitors assume, practically, that
confidentiality obligations will break down when the contractor works for both
sides concurrently. We can't build Chinese Walls in our minds, or in small
firms of a handful of people.

Back to the terms, note that "Early Termination" gives each side the power to
terminate early, with a given number of day's notice, for no reason at all.
The main effect of "Conflicts" is to require the contractor to notify the
client of potentially concurrent work for a competitor. If the client has
concerns, they can terminate immediately, instead of with _n_ days' notice.
It's fundamentally about ensuring the client the information they need to make
use of their termination right.

------
ruairidhwm
I've seen quite a few of these and whilst I love the idea, they usually have a
ton of problems in them.

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.

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't know this, and a lawyer would need to review the provisions.

There are also a ton of generalised terms in this document where things like
'intellectual property rights' aren't defined. These aren'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.

This isn't to attack the idea, I'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 'churn' basis. This is a great effort to further
open law but it's dangerous for people to rely on this.

Source: I'm a software engineer and a qualified lawyer

~~~
hiccuphippo
I wonder if there could be a library of legal terms so I can build my contract
with it like I can build an image using a canvas library.

initial_boilerplate() add_jurisdiction("England") add_involved_parties(foo,
bar) etc

~~~
ruairidhwm
I've been wanting to build a legal IDE for ages, it makes no sense that
lawyers are stuck using Microsoft Word with lots of bolt-on plugins rather
than a VSCode / Sublime equivalent.

~~~
avinium
Said tools exist, though they're not particularly successful. Word is just too
easy to use - even if the replacement is 5% better (which is unlikely), that's
not enough to prompt a shift.

~~~
koolba
The issue is that the replacement isn’t 5% better (it is!), it’s the network
effect. The counter pretty likely will ask for a redlined Word doc so you’re
back to exporting it from your fancy scm-diffed Markdown file.

------
kemitchell
Haven't had a chance to review yet, but I will, and I strongly support this
effort!

In fact, I wrote and published a plain-language contractor agreement of my
own, Fairshake, some time ago.

[https://commonform.org/kemitchell/fairshake/current](https://commonform.org/kemitchell/fairshake/current)

I've also published Switchmode, an independent contractor agreement for
software developers doing mixes of open source and closed source projects for
their clients:

[https://github.com/switchmode/switchmode](https://github.com/switchmode/switchmode)

I'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:

[https://nda.cantingtribe.com](https://nda.cantingtribe.com)

------
lgleason
This is definitely missing a lot of protections for both sides.

An interesting story.

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.

It was at that point that I pointed out that the jurisdiction, "Orange County
Georgia" 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.

Contract negotiations are often a sign of things to come with the rest of the
engagement.

~~~
ticmasta
>> Contract negotiations are often a sign of things to come with the rest of
the engagement

I'd qualify this with "if the person(s) you will be work _with_ are the
sticklers for the contract."

Often contracting is just a line item for the manager that wants to get going
and the legal rep is the one causing the delays. When this is the case I don't
find the experience with the legal team has much bearing on the experience
actually doing the work.

~~~
lgleason
That is true. This has been more of my experience when I've been working with
startups and small companies that don't have legal departments.

------
aiisahik
I love the idea behind this - so many contracts are unnecessarily impossible
to read.

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.

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.

Less of an issue but section 1.4 also does not restrict the nature and amount
of expenses.

~~~
folkrav
> 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.

I'm honestly not doubting you, I just don't understand, not being really
versed in legalese. What's that "diligence for an equity round" thing? How is
"you own all the things" too weak legally speaking?

~~~
Aeolun
As I read it, it isn’t explicit enough about what rights you are signing over.

This leaves it open to a court fight over what ‘everything’ means in the
context of the document.

~~~
rv-de
And with a section that defines what "the work" refers to? That has to be
specified anyway. Wouldn't that sufficiently disambiguate the scope?

------
SimonPStevens
Just worth noteing this looks specific to the US freelance/contract market.

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.

Not necessarily a failing of the project, but perhaps it could mention more
explicitly that it's for US jurisdiction

(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-de
What I don't get. And I suppose I am speaking here for 99% of all developers
without a background in law.

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?

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.

Also the question whether the framework is applicable should be answerable
through a couple of if-elses.

I can't wrap my head around it.

~~~
cooperadymas
IANAL either, but if you go to a lawyer (as a freelancer/contractor) for a
contract they're basically going to take one off the shelf and hand it to you.
They might change one or two lines to be specific to the type of work you do,
or run it through a couple if-else conditions that aren't relevant to
everybody. But in the few times I've dealt with contracts the boilerplate
percentage was well above your 90% mark.

~~~
someguy101010
You could theoretically say the same thing about a CRUD app

------
lsh
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).

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'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.

The most important and most complex part is indemnification. You don't want to
mess that section up. It outlines who is responsible, how responsible, type of
responsibility and _where_ 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.

The Client has the opportunity to suggest changes if something is important to
them - but only up to a point.

It works for me and I don't work for huge or faceless organisations, ymmv.

------
patrickbolle
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 'crowdsourced' imo.

The freelance community is really missing some good open source / legit free
software and resources, I hope more things like this pop up.

~~~
jackm
Thanks, Patrick! Here's the Githup repo: [https://github.com/jackmorgan/the-
plain-contract/](https://github.com/jackmorgan/the-plain-contract/)

------
chiefalchemist
Presuming this isn't going to be used for anything five figures and up, then
I'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't come into play unless the expectation set (or not) by the
SOW goes sideways.

While the contract defines the legal CYAs, etc, the SOW help define the
relationship without all the heavy-handed language gymnastics.

~~~
mikeryan
This contract is a combo MSA/SOW. It covers both.

~~~
chiefalchemist
Fair enough. But based on experience, that's a suboptimal approach. To bury
the SOW within a more legal doc is, for me, asking for trouble.

~~~
mikeryan
Agreed ;-)

------
manggit
Sounds like you should join forces with Anvil (Show HN post:
[https://news.ycombinator.com/item?id=18923229](https://news.ycombinator.com/item?id=18923229))
and make this contract free to fill out online :)

Full disclosure, I am a founder of Anvil

------
kemitchell
A few comments from my first quick skim, in appearance order.

 _If you need a good contract, don 't be a dufus. Hire a lawyer who will ask
questions and stand professionally accountable to you. I am doing neither
here._

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.

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.

Preamble: There's no need to spell out party names there, though it's
traditional. If their info appears on the signature page, it's clear who's
entering the contract. DRY.

Payment: I'm not quite sure which rate structure you have in mind, but it
looks like an "x% up front" kind of thing, where the up-front payment is
nonrefundable, and the balance is due on completion.

Expenses: I routinely advise clients to strike language authorizing
contractors to incur and pass through whatever expenses they like.
Reimbursement's usually limited to expenses set out in the contract/SOW,
expenses preapproved by the client in writing, and possibly expenses below a
threshold amount each, and an aggregate. On the latter think: "I'll reimburse
you for expenses below $20 without approving first, but don't not more than
$100 worth."

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.

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.

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.

Ownership: I would definitely advise being more explicit. In general,
copyrights move from authors to clients in two ways: assignment and "work made
for hire". Since not all copyrighted work can be "work made for hire", it'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:

[https://writing.kemitchell.com/2018/05/31/California-Work-
Ma...](https://writing.kemitchell.com/2018/05/31/California-Work-Made-for-
Hire.html)

That being said, under our new California ABC test, I'm not sure who _isn 't_
arguably an employee. But I digress.

And that's just copyrights. Clients want patents covered, too.

Authorship: I would rename this "Portfolio Use" or similar, and also make it
more explicit. Again, I believe AIGA covers this.

Confidentiality and Nondisclosure: Either "Confidentiality" or "Nondisclosure"
would suffice. I'm all for short, pithy NDAs. But I don'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't survive perpetually.

I'd put a term in saying that the client and contractor will sign an NDA on a
separate, standard form. Plug:
[https://nda.cantingtribe.com](https://nda.cantingtribe.com).

Non-Solicitation: Stated too broadly. And probably unnecessary, for
freelancers working for companies.

Representations: The rep included is common, but also kind of pointless. What
happens if the side signing _doesn 't_ have authority to contract?

The key reps in freelance design, software, and other creative contracts cover
IP. Specifically, that's where contractors typically guarantee that they
aren't plagiarizing others' work, or including outside material they haven't
the rights to license.

Term and Termination: Seven days is short, but termination at will is common.
It's not clear how to calculate fees pro rata, given the x% up-front payment.
If the client terminates the freelancer because they're terrible, does the
client have to pay them more money? Only if they're >x% into the scheduled
length of the contract?

Limitation of Liability: As I mentioned about reps above, deliverables usually
_do_ come with explicit reps. However, the terms usually _disclaim_ reps not
in the contract itself, like reps implied by law, by default. Damages cap at
fees paid is typical.

Indemnity: The _Client_ indemnifies the _Contractor_ for the _Contractor_ '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.

I have _not_ 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.

------
_keats
Unrelated to the contract itself but that's probably a couple more call to
action buttons than needed.

------
grabeh
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're going
to ask the client to use their time to read this, it's good to present
something which isn't so one-sided in favour of the contractor. They'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.

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/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.

End dates: This provides an absolute commitment to deliver work by a certain
date. I don't think this is advisable from a contractor's perspective. At the
very least it should be made subject to timely receipt of client inputs.

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'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).

Term and termination: Sure, flexibility over termination is a good thing
(because if it's not working, it's not working), but giving the contractor the
right to terminate on 7 days' 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's perspective I think more certainty over contract duration is
preferable.

Indemnity: Client -> 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's important to acknowledge that.
Presenting a document with a client only indemnity risks that in my view! In
some ways it's probably better not to put the word indemnity in a contract
sent to a client, because it'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/legal department (if they have one).

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.

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't necessarily need to be stated (but
often good to bring to the attention of the client anyway).

~~~
jackm
Thanks grabeh, this is helpful feedback!

------
kemitchell
Obligatory Segura ref: [https://m.signalvnoise.com/my-kind-of-
contract-e7327e98e3ea](https://m.signalvnoise.com/my-kind-of-
contract-e7327e98e3ea)

------
mychael
You get what you pay for :-)

