Contract Review: The Independent Traveler

Got this in - as always, I'm not a lawyer; this isn't legal advice (just my opinion and interpretation); I'm providing comments on contracts, but you still need to read one of the contracts to see how everything applies to your circumstances; and you should always negotiation for the best terms you can get:

• 1. Description of Services You have a contract governing all the writing you do for them, and individual "Schedules" contain the terms and deadlines for any given assignment. And then there is this sentence: "Notwithstanding any other provision of this Agreement, IT shall have no obligation to publish any Work produced or created by Author hereunder. " That means no matter what else is in the contract, they don't have to publish something that you've written, even if you have a Schedule saying that you have an assignment.


• 2. Acceptance This is the first time I've seen a contract that says acceptance happens according to the procedure in the assignment, or Schedule. So you have to read the assignment carefully, because something as fundamental as acceptance can change from one to the next.


• 3. Payment Again, the terms governing payment are on any Schedule. If they aren't there, then you have a fuzzy arrangement, particularly as payment depends upon acceptance. They say they pay 30 days "following receipt of a properly submitted and correct invoice(s)," but they don't indicate what property submitted means. Could that include a given format? Is there specific information you need that you might not ordinarily put on? Expenses are on you, unless the Schedule specifically states otherwise. Again, the assignment becomes at least as important to read as the contract.


• 4. Relationship of Author and IT; Author’s Business This is supposed to be the section where they set out that you are not an employee, but an independent businessperson. However, some of the details get a bit ... detailed. For example, "Author represents to IT that Author is maintaining a separate set of books or records that reflect all items of income and expenses of the business which Author is conducting. " Also, look at this: "Upon request, Author shall provide IT with proof of independent contractor status satisfactory to IT, including but not limited to tax records and the United Business Identifier (“UBI”) in the state where Author does business." You are agreeing that they can ask for your tax records and that you have to show them.


• 5. Insurance You might have to get insurance, depending. "Without limiting the foregoing, to the extent this Agreement creates exposure generally covered by Commercial General Liability and Professional Liability insurance policies, Author will maintain at its sole cost and expense such insurance policies covering its obligations under this Agreement. "


• 6 Ownership; Third-Party Materials Because of the phrasing in this clause, it seems like this is a generally contract for any type of contracted work. They want to own everything - including notes and copyright of what you write. Think of it as WMFH with notes included. You also waive moral rights, which doesn't mean anything if you're a US writer, but does if you're from Canada or Europe.


• 7 Confidential Information Apparently you're supposed to sign a separate non-disclosure, and in the case of conflict between that NDA and this contract, the NDA rules. Among the "confidential information" that you cannot reveal to anyone are the terms and conditions of the agreement. If you have any doubt if something is confidential, you ask them. I'll hazard a guess as to an affirmative answer.


• 8 Term and Termination They can terminate the agreement or any assignment at any time and pay you only for what you had done up to that date. If you hand't handed in a draft, my guess is that they could argue that they didn't owe you anything. If you argue that you had done research, I'm guessing that they could demand the notes and then own them. You can give notice on 30 days, but still have to complete any assignment that would be due before the termination date.


• 9 Author’s Data They can use your name, bio, and likeness, and can also license that to anyone they want regarding an article. Becusae you have no control over where they will sell it, you have no control over where you will appear and in what context. Also, they can allow others to further license the article as well as your info, meaning control is now completely out the window.


• 10. Warranties and Representations There are some broad warranties, like "the Work will not include the unauthorized use of name or likeness of any person, libel, slander, defamation, disparagement, piracy, plagiarism, idea misappropriation, and any invasion of the right of privacy." You cannot infringe anyone's copyright nor any other property right, including trade secret. What if you find out about some information that a company was hiding? Can they declare it a trade secret, putting you in breach of your contract?


• 11. Limitation of Liability They get a limit on the damages you can get from a court from them. If you have to travel (and this is a travel publisher), then you also have to take out a "reasonable" amount of travel insurance.


• 12. Indemnification You have to indemnify for an actual claim that you infringed a third party's "legal right," including copyright. For anything else, it's alleged breach type wording, so if someone even says that you libeled them, you're now indemnifying the publisher.


• 13. General State of New York laws govern the contract. They want you to agree that any legal action has to take place in New York, and in Superior or District court, which I think means you cannot use small claims court lto get money you're owed. The prevailing party automatically gets costs and attorneys' fees, even if the court wouldn't otherwise award them. You cannot elect a trial by jury (which might work in your favor). This is the entire agreement, so what an editor tells you to the contrary is meaningless.