4 ms·

I personally don't think it's great advice - you're effectively working on the promise of a third party you don't know without any structure around deliverables

by freddyc 10y ago

I personally don't think it's great advice - you're effectively working on the promise of a third party you don't know without any structure around deliverables, timing, payments etc. What if they turn around in 6 months time and say "Oh! We don't really need that. But no worries, we don't have a contract so we're all good." Better advice IMO is for service providers to spend a little money up front and develop their own standard form contract that they can serve up at the beginning of any engagement. If the buyer insists on using their form (say, if they're a big company) then at least they have a template to compare it to and make sure they're covered in the areas that matter.

khedoros1 10y ago
This advice seems to cover a corner case: If you might not be paid, don't put yourself under contractual obligation to complete the work. It opens up problems for both sides, though. I thought that proof of a signed contract would've been a given in this situation before any information would be shared and before the work would commence. It seems like a no-brainer. The NDA itself? Well, if they aren't forcing you to sign that, I'm not so sure why you would.
- walshemj 10y ago
  Surly not being paid means the contact is frustrated
  - soreal 10y ago
    IANAL and this is not legal advice But yes, generally the terms of a work-for-hire contract specify an exchange of money in return for the work However, most NDAs are completely independent of getting paid. Thus the author's advice to sign the main contract but leave off the NDA.
    - khedoros1 10y ago
      > Thus the author's advice to sign the main contract but leave off the NDA. That wasn't really clear to me. The wording (in the second situation in the post) made it sound like their partner signed neither the contract nor the NDA. > “No,” my partner replied. “You sent a contract. I never signed it. It isn’t my problem that you never noticed.” They could've been more explicit about which things were or weren't signed in the scenario that they described.
    - geoelectric 10y ago
      AFAIK, work for hire is separate from being contracted as well. Unless things have changed in the last 10-20 years you can have a valid contract to spend time and deliver software without the copyright assignment that comes with WFH. In fact, this was common practice for doing enterprise consulting to small businesses when I was doing it at the start of my career. You could frequently reuse layouts and components between jobs since it was mostly basic 4GL+RDB, and it was typical to have no work-for-hire clause at all or a very limited one excluding reusables; or to charge a higher price if the client insisted on the clause to cover redevelopment. I believe this was also the model that early open source companies such as Cygnus (who I also worked for) was built on. Large companies paid us to port the toolchains to their systems, but I believe the copyright was retained by Cygnus (and presumably reassigned to the FSF). If someone had work for hire in a separate agreement, and I was otherwise inclined to take the "wait until requested" route, I'd probably wait on returning it too. I don't think I'd sit on the contract that said I'd get paid though, and I'm sure they're usually combined. I just wouldn't point out the omission if I got a contract without one.
- jaggederest 10y ago
  Your contract should definitely have provisos laying out what happens if one party doesn't fulfill the contract. In my case, it says "intellectual rights transfer upon full payment", full stop. No pay, no right to use any work product
ohjeez 10y ago
That is, actually, what we wound up doing. Paid big bucks to a top IP lawyer to write us a Mad Libs contract form, and have used it to this day. But it was sure a good thing that we hadn't signed anything in that particular case, since the bozos were very clearly never going to pay us a cent. We wound up with all the leverage.
- karmajunkie 10y ago
  I've got pretty much exactly the same story, although we're still in business together as partners now rather than client/provider. but yeah, without the leverage you get screwed. I've never heard the advice put quite that way but good call. With new clients, if there's paperwork involved then I only work off retainer. Never let them get in over your head.

by freddyc 10y ago

khedoros1 10y ago

This advice seems to cover a corner case: If you might not be paid, don't put yourself under contractual obligation to complete the work. It opens up problems for both sides, though. I thought that proof of a signed contract would've been a given in this situation before any information would be shared and before the work would commence. It seems like a no-brainer. The NDA itself? Well, if they aren't forcing you to sign that, I'm not so sure why you would.

walshemj 10y ago
Surly not being paid means the contact is frustrated
- soreal 10y ago
  IANAL and this is not legal advice But yes, generally the terms of a work-for-hire contract specify an exchange of money in return for the work However, most NDAs are completely independent of getting paid. Thus the author's advice to sign the main contract but leave off the NDA.
  - khedoros1 10y ago
    > Thus the author's advice to sign the main contract but leave off the NDA. That wasn't really clear to me. The wording (in the second situation in the post) made it sound like their partner signed neither the contract nor the NDA. > “No,” my partner replied. “You sent a contract. I never signed it. It isn’t my problem that you never noticed.” They could've been more explicit about which things were or weren't signed in the scenario that they described.
  - geoelectric 10y ago
    AFAIK, work for hire is separate from being contracted as well. Unless things have changed in the last 10-20 years you can have a valid contract to spend time and deliver software without the copyright assignment that comes with WFH. In fact, this was common practice for doing enterprise consulting to small businesses when I was doing it at the start of my career. You could frequently reuse layouts and components between jobs since it was mostly basic 4GL+RDB, and it was typical to have no work-for-hire clause at all or a very limited one excluding reusables; or to charge a higher price if the client insisted on the clause to cover redevelopment. I believe this was also the model that early open source companies such as Cygnus (who I also worked for) was built on. Large companies paid us to port the toolchains to their systems, but I believe the copyright was retained by Cygnus (and presumably reassigned to the FSF). If someone had work for hire in a separate agreement, and I was otherwise inclined to take the "wait until requested" route, I'd probably wait on returning it too. I don't think I'd sit on the contract that said I'd get paid though, and I'm sure they're usually combined. I just wouldn't point out the omission if I got a contract without one.
jaggederest 10y ago
Your contract should definitely have provisos laying out what happens if one party doesn't fulfill the contract. In my case, it says "intellectual rights transfer upon full payment", full stop. No pay, no right to use any work product

ohjeez 10y ago

That is, actually, what we wound up doing. Paid big bucks to a top IP lawyer to write us a Mad Libs contract form, and have used it to this day. But it was sure a good thing that we hadn't signed anything in that particular case, since the bozos were very clearly never going to pay us a cent. We wound up with all the leverage.

karmajunkie 10y ago
I've got pretty much exactly the same story, although we're still in business together as partners now rather than client/provider. but yeah, without the leverage you get screwed. I've never heard the advice put quite that way but good call. With new clients, if there's paperwork involved then I only work off retainer. Never let them get in over your head.