work-for-hire-freelance-writing-agreement-1.doc

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<p>SAMPLE WORK-FOR-HIRE FREEHLANCE WRITING AGREEMENT  
This Work-for-Hire Freelance Writing Agreement (this "Agreement") is hereby entered into as 
of this [DAY] day of [MONTH], 2012 ("Effective Date") between the Writer and Client noted 
below, with respect to the Services and Project defined herein below. 
[WRITER NAME] ("Writer"):  
Business Name: [WRITER BUSINESS NAME]  
Website: [WRITER WEBSITE]  
Contact: [WRITER CONTACT NAME]  
Tel: [WRITER TELEPHONE]  
Email: [WRITER EMAIL] 
[CLIENT NAME] ("Client"):  
Business Name: [CLIENT BUSINESS NAME]  
Website: [CLIENT WEBSITE]  
Contact: [CLIENT CONTACT NAME]  
Tel: [CLIENT CONTACT TELEPHONE]  
Email: [CLIENT CONTACT EMAIL] 
Terms & Conditions  
1. SERVICES; PROJECT. Subject to the terms and conditions set forth herein, Client 
hereby engages Writer to perform, and Writer agrees to perform, professional freelance 
writing services ("Work") to be performed on/for the following project (s): [LIST 
PROJECT(S)] ("Project")  
 
2. DELIVERABLES; DISCRETION. Upon completion, Writer shall submit the 
completed Project in written form in format reasonably acceptable to Client. Subject to 
the terms set forth herein, including Paragraph 3 below, the manner and method of 
producing the Project is solely at the discretion of Writer as long as they comply 
with Client requirements, which Client shall communicate in writing to Writer. Writer is 
obliged to work only on the Project and the Client is not entitled to 
demand Writer's engagement in another project unless or until Client and Writer enter 
into a separate agreement to cover such project on mutually agreed-upon terms.  
 
3. OBLIGATIONS AND WARRANTIES OF WRITER.  
 
(a) Upon submitting the Project to the Client, Writer represents and warrants that the 
Project (or any part of it): 
 
o is plagiarism-free and original (is not owned by any third party fully or partially 
and does not contain any previously produced text, "copy-pasting");  
o contains full and absolutely correct references to third-party authors;  
o contains quotations of texts by third-party authors that are no longer than one (1) 
sentence or fifteen (15) words per each quote, and not exceeding 15% of the 
total Project text, with obligatory indication of page or paragraph of cited source;  
o complies with all requirements provided by the Client (formatting style is 
considered a requirement)  
o has not been obtained by unlawful means;  
o has not been previously published in any manner or medium, specifically 
including but not limited to, print or electronic means. 
 
This is too heavy a burden to put on the writer. You should use a standard of 
reasonableness. Absolute guarantees are very dangerous because they're easily 
invoked. Suppose, for example, that the writer cites a reference that she believes 
is accurate because it appears multiple times on the web, but it's not actually 
accurate.  
 
(b) The Writer acknowledges and agrees that if they fail to adequately complete 
the Project by the due date the Client has the sole right to cancel this Agreement; 
provided that Client must pay Writer a reasonable prorated amount of the Fees 
proportionate to that portion of the Project completed to date. If the Writer fails to meet 
the Project deadline, they must contact the Client to request deadline extension at least 24 
hours prior to the due date. Extension is not guaranteed and can be granted in Client's 
sole discretion.  
 
(c) The Project must conform to general readability standards as determined by 
the Client. Writer acknowledges and represents that if the Project fails to conform to the 
general readability standards, the Client has the sole right to request immediate revision 
of Project, deny payment, and/or cancel this Agreement. If the Project is deemed 
inappropriate by the Client at the time of submission or publication, either for content or 
other reasons, the Client has the sole right to request immediate revision of Project, deny 
payment, and/or refuse to use any portion of the Project in any publication related to the 
business of Client or otherwise.  
 
Some states require payment for work done regardless of acceptability. Regardless of 
state law, though, all contracts should have that provision. Which means the client has to 
monitor the work closely, esp. in early stages of the project and with writers new to her. 
You can help the client do this by writing milestones into the contract and scheduling 
reviews of your progress at every milestone. You should give the client a short period of 
time to do the review and provide that if he skips or ignores it, the milestone is deemed 
completed. 
  
4. COMPENSATION; CHANGES. Client agrees to pay Writer: 
 
$___________ per hour  
 
If the parameters of the Project changes, or if it involves much more time than originally 
estimated, Writer will inform Client and they can renegotiate the rate. Writer will bill for 
half of the total estimated cost when Writer begins the Work and the rest upon 
completion. Writer will submit the final invoice for the Work upon receiving approval 
from Client. If Writer has not received any comments or revisions within a week of 
submitting a completed draft, Writer will send the invoice. Writer requires half of the 
total estimate cost up front before beginning a rush job if for a first-time client. 
 
Writer requires a purchase order number or an initialized agreement before beginning 
Work. Incidental expenses such as long distance phone calls, postage, courier service, are 
absorbed by Writer. Mileage to special events or interviews is billed at the rate currently 
accepted by the IRS. Writer is responsible for the payment of all federal, state and/or 
local taxes with respect to the Work he/she performs for the Client as an independent 
contractor. The Client will not treat Writer as an employee for any purpose.  
 
Any verbal or written changes made by Client to the scope of the Work following its 
initiation by Writer are subject to additional charges. Should such changes negate any 
part of the Work already completed at the time of the changes, Client accepts 
responsibility for payment of the completed work and all services related to it, in addition 
to charges for the change itself.  
  
5. PAYMENT AND COLLECTION; JURISDICTION. Unless otherwise specified in 
writing, invoices not paid within 30 days of the invoice date will accrue interest at 1.5% 
per month. Client agrees to pay for each check returned for insufficient funds or any other 
reason $25 per occurrence or 5% of the value of each returned item, whichever is greater. 
Client agrees to pay all reasonable attorney's fees (at least 15% of all amounts due, 
including interest) if any account is placed with an attorney for collection. Client agrees 
that the purchase of the services described herein constitutes "doing business" in the State 
of [WRITER'S RESIDENCE] and submits itself to the jurisdiction of the State of 
[JURISDICTION] with respect to any suit brought by Writer to collect any sums 
hereunder. The parties agree that the only venue for any suit brought by either of them 
with respect to the services sold hereunder shall be in the State Court of [VENUE] 
County.  
  
6. INDEPENDENT CONTRACTOR STATUS.  
 
(a) The parties expressly agree and acknowledge that the relationship created by this 
Agreement is one of Independent Contractor. Writer is not the employer of the Client. 
The Writer agrees to be treated as an Independent Contractor for all employment 
purposes. Therefore, no payroll deductions for employment taxes or insurance of any 
kind shall be paid by the Client for or on Writer's behalf. Payroll deductions, employment 
taxes and insurance that are subject to this paragraph include but are not limited to FICA, 
federal, state, and local income tax withholding; state disability insurance; state 
unemployment insurance; and workers compensation insurance.  
 
(b) In order to meet State and Federal rules and regulations applicable to Independent 
Contractor status, the Writer must meet the following criteria: (i) be engaged in a distinct 
occupation or business; (ii) perform services without direct supervision; (iii) provide 
tools & equipment for said services; and (iv) provide business license, and/or Federal I.D. 
number, or valid Social Security Number.  
 
(c) The Writer shall not hold [HIMSELF/HERSELF] out to the public as an employee, 
agent, or partner of or with the Client. The Client is engaged in the business of 
[CLIENT'S BUSINESS] and is not an employer, partner or joint venture of or with 
the Writer.  
 
In California, in WFH contracts with writers and other creators of copyrightable 
material, the creators have to be hired as employees, not contractors. Check it out with 
the state's Employment Development Dept. 
  
7. MATERIALS. The Client agrees to furnish the Writer with all necessary materials 
needed to complete the Work described herein. Such materials may include, but are not 
limited to, podcast files, articles, training documents, client's products, passwords/logins, 
marketing collateral, feedback and guidance on what the Client's objectives are, and 
other materials.  
  
8. TERM; TERMINATION. This Agreement will begin on the Effective Date set forth 
above and shall continue until terminated as provided herein by either party. If either 
party violates a term of this Agreement, then the other party (the "Non-breaching Party") 
may terminate this Agreement, effective immediately upon delivery of written notice of 
termination by the Non-breaching Party. Notwithstanding the foregoing, either party may 
terminate this Agreement at any time for any or no reason, effective upon three (3) days 
written notice. Upon written or verbal cancellation, Client is responsible for payment for 
all expenses incurred and any Work performed by Writer toward the completion of the 
project based on the percentage of project completed. Should Client cancel the project 
following its completion, Client is responsible for full payment as per the above estimate 
plus all other expenses incurred.  
  
9. OWNERSHIP/COPYRIGHT. All original Work created for this project shall be 
considered "work-for-hire" performed in the United States of America. The copyright for 
all Work produced under this agreement shall belong to the Writer until 100% of 
payment has been received. Upon receiving full payment, the Writer shall transfer all 
rights to the Client. Client shall exclusively own in perpetuity all now known or hereafter 
existing rights of every nature worldwide pertaining to such Work in or as part of any 
version of the Client's publications that are published in print or displayed through 
computer-assisted and other interactive media such as the Internet and World Wide Web 
(collectively the "Rights"). Writer hereby irrevocably grants and assigns to the Client 
all Rights for the Work free from any restrictions and limitations.  
 
In WFH, the client has the copyright from the start. It never belongs to the writer. That's 
is distinctive about WFH and it's one of the primary reasons that clients use it.  
 
All the language in this section about the writer granting rights should be deleted. The 
language would be appropriate in a standard freelance agreement but not here. And 
since this contract is boilerplate, it would be a good idea to include the following quote 
from the copyright law defining the kinds of works that can be created in a WFH 
contract. This is from Section 101, Copyright Act of 1976 (USC 17 101): 
 
A work made for hire is 
(1) a work prepared by an employee within the scope of his or her employment; or  
(2) a work specially ordered or commissioned for use  
     as a contribution to a collective work,  
     as a part of a motion picture or other audiovisual work,  
     as a translation,  
     as a supplementary work,  
     as a compilation,  
     as an instructional text,  
     as a test,  
     as answer material for a test, or  
     as an atlas,  
if the parties expressly agree in a written instrument signed by them that the work 
shall be considered a work made for hire.  
 
If a WFH contract is used with other kinds of works, the copyright remains with the 
writer. Because of this, WFH contracts often have a provision that if WFH doesn't apply, 
the writer transfers all rights anyway. 
  
10. CONFIDENTIALITY. The Writer agrees to abide by the provisions of the Personal 
Information Protection of Electronic Documents Act and that any and all information 
provided by the Client (the "Information") shall be kept strictly confidential. The 
Consultant agrees not to, at any time, or in any manner, either directly or indirectly, use 
any information for the Consultant's own benefit, or divulge, disclose, or communicate in 
any manner any information to any third party without the prior written consent of the 
Client. The confidentiality provisions of this Agreement shall remain in full force and 
effect after the termination of this Agreement.  
 
This section as written is unenforceable in most, maybe all, states. It is far too restrictive.  
 
The only information that the writer should hold confidential is info whose disclosure 
would actually and directly hurt the client. It's up to the client to identify all such 
information beforehand (clients can use a rubber stamp saying "Confidential" or a note 
on the title page of a document). The writer can be required to exercise reasonable 
judgement when in doubt, but she should verify her judgement as quickly as possible.  
 
Also, the info should be held confidential only as long as necessary, that is, only for as 
long as divulging it would actually and directly hurt the client and rarely more than a 
year. For instance, the designs for this year's fall fashion shows shouldn't be divulged 
before the shows, but once the fashions are in the stores, there's no point in holding the 
designs confidential. 
  
11. INDEMNIFICATION. Client agrees to hold Writer harmless for any such damages that 
may arise from Writer's work product. In no event shall Writer be liable for any direct, 
indirect, punitive, incidental, special consequential damages whatsoever arising out of or 
connected with the use or misuse of her work product. Writer assumes no responsibility 
for any special, incidental, indirect, or consequential damages of any kind, or any 
damages whatsoever (including without limitation, those resulting from her work product 
or from: (1) user or Client reliance on the materials or documents produced (2) costs of 
replacement writings, training, or documents (3) loss of use, data, or profits (4) delays or 
business interruptions, (5) and any theory of liability, arising out of or in connection with 
the use or performance of Writer's work whether or not Writer has been advised of the 
possibility of such damages.  
  
12. FINAL AGREEMENT. This Agreement terminates and supersedes all prior 
understandings or agreements on the subject matter hereof. This Agreement may be 
modified only by a further writing that is duly executed by both parties.  
  
13. SOLE AGREEMENT; AMENDMENTS. The agreement contained in this Contract 
constitutes the sole agreement between the Writer and the Client regarding the project 
outlined above. Any additional work not specified in this contract requires a separate 
agreement. All prices specified in this contract will be honored for two (2) months after 
both parties sign this contract. Continued services after that time will require a new 
agreement.  
  
14. GOVERNING LAW. This contract will be governed by and construed in accordance 
with the laws of the State of [GOVERNING LAW], without giving effect to its choice of 
law rules  
 
For writing contracts, governing law should be New York unless there is a compelling 
reason to do otherwise. The state has a large and widely-used body of publishing law and 
publishing-related employment law, whereas many states don't or those that they do have 
are too client-friendly. New York's laws are helpful to both writer and client. California 
is another publishing-savvy and writer-friendly state but only for non-WFH contracts.  
  
15. ENTIRE AGREEMENT; AMENDMENTS. This Agreement constitutes the entire 
understanding of the parties. Any changes or modifications thereto must be in writing and 
signed by both parties. 
I, [CLIENT REPRESENTATIVE NAME], assert that I am a person employed by [CLIENT 
NAME], and that I have the authority to promise payment for the services rendered by Writer for 
the aforementioned Work. I assert that I have read, understood and agree to the terms of this 
Work-for-Hire Freelance Writing Agreement. 
I, [WRITER NAME] assert that I have read, understood and agree to the terms of this Work-for-
Hire Freelance Writing Agreement. 
</p>