Contract Review: Cyberhomes

Someone sent a copy of a Cyberhomes.com contract to me for review. As always, remember that I'm not a lawyer and that this isn't legal advice. Also, please remember that contracts change, so if you're looking back at this from some future date, it might not completely apply. Also, I'm only mentioning the clauses that I think either raise questions or might need explanation.

• 1. Engagement of Services - This is a contract for ongoing work over a one year period, so if you sign, don't think that you'll be negotiating better terms on a second piece.


• 2. Compensation - It's payment on acceptance, which later in the contract appears to need to come in writing, either email or mail. So you'd need to be sure you get an editor to explicitly say this. Only then can you invoice. Payment is 45 days after invoice.


• Grant of Rights - Clause 3.1 states that they get "the worldwide, non-transferable, perpetual right and license to publish, display and distribute any Works (in full or any portion thereof) submitted by Contractor under this Agreement in all forms of media (including, but not limited to, all electronic media, whether now known or hereafter created and whether owned and operated by Client or not)." But notice that it does not say exclusive rights. I read this as saying that it's implicitly non-exclusive. Also, you see that they include the ability to let others "display on third party websites and third party printed publications." So they can either resell your work or even let others use it without pay, whether on the web or in print. That means you can't offer any sort of exclusive rights licensing to any other client of the same material. They can also use the material as promotion for the site, using your name, bio, and image "provided such promotional materials present Contractor in a fair and professional manner." I'm wondering if they could portray you as a "site writer," creating more of a sense of affiliation than there may be.
  
  They have the right to edit your work - a pretty normal thing, except that it opens a back door to paying even later. "In such cases, payment will not be processed until such revisions have been submitted by Contractor and approved by Client." So, even though it says pay 45 days after you invoice and you can invoice after you have something that's approved, it's essentially not approved if there are edits, and who knows how long those could take to get to you?
  
  Finally, for this clause at least, they acknowledge that you own all other rights - of course, because you didn't sign them away - but they want you to credit Cyberhomes.com any time someone else reuses the work. This has become an often-seen practice that is ridiculous. What if the other publication doesn't want to do it. If you can't get this struck, which is by far the better thing to do, because you shouldn't have such conditions on your own intellectual property, then add that you will use "best efforts" to include it. That way, if another client says no, you haven't lost the sale.


• 4. Representations and Warranties; Indemnification - The warranties section is actually one of the most reasonably constructed that I've seen, and I don't think you'd need to change a word. There is a problem in the indemnification: "arising in whole or in part from any breach of Contractor’s representations or warranties hereunder." If a problem comes only in part from a breach of the warranties, why should the writer take on all of the financial burden? So strike "or in part".


• 5. Independent Contractor Relationship - It's fine to say that you are responsible for your own taxes, but not to make the time table on which you file taxes part of this contractual arrangement. What if there was some form you forgot to file? (It takes federal, state, and local into account.) So scratch that part.


• 6. Confidential Information - I'd want the following language stricken: "Breach of any of such obligations under this section will result in irreparable and continuing damage to Client for which there will be no adequate remedy at law; and, in the event of such breach, Client will be entitled to injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including monetary damages if appropriate)." You don't want someone to have the automatic ability to get an injunction, as this is a pretty extraordinary type of remedy. Let them convince a judge.


• 10. Governing Law - For a long time I've advised against wording that allows automatic recovery of legal fees for the prevailing party of a legal dispute. Some recent experience on my part and discussion with a lawyer now has me thinking quite the opposite. It's far more likely that you'll be the one suing, and so you want to make sure that you get your costs covered. However, there is the danger that if you brought an action and lost, you'd then be liable for their costs.


• Exhibit A - Under the "Deadlines and Submissions" section is a requirement to provide source contact info with an article. That would be fine, except they say they'll keep it in a database of source contact info and make it available to anyone they have writing for them. So, if you value your source relationships and arne't interested in making them available for potentially multiple contacts from the publication that might get annoying, you might think twice about doing anything for this site.