The contract clauses that allocate risk
Indemnity, restrictions on other work, liability transfers and insurance requirements determine the risks a freelance writer agrees to accept in a client relationship.
Reviewing the agreement
Freelancers should read the contract before signing and ask for revisions rather than accepting unsuitable wording because it is described as standard. They should review nondisclosure, confidentiality and conflict-of-interest statements for unnecessary restrictions as well as the main contract. They should review terms incorporated through a purchase order: a link can lead to a lengthy contract whose conditions are easy to overlook.
A practitioner's risk-management checklist covers six clause types.
- Payment terms: specify a retainer, the cost of services, the invoicing schedule, the schedule for paying for completed services, and when and how late fees apply.
- Noncompete clauses: the agreement should not impinge on the freelancer's business.
- Indemnification or hold-harmless clauses: seek reciprocal wording with a best-of-knowledge standard, limited to the contract price and the final product delivered by the freelancer.
- Default, breach and termination: define the applicable state law, the venue for resolution, each party's obligations and the consequences of early termination.
- Dispute resolution: specify the arbitration venue and that the arbitrator's decision will be binding.
- Force majeure: address relief from liability when unforeseen events prevent performance of contractual obligations.
A second practitioner's checklist identifies five red flags to discuss with the client.
- Noncompete agreements that affect work for competing companies or in the same therapeutic area.
- Overarching fee agreements that require hourly rather than project billing.
- Liability transfers that make the writer responsible for content even after substantial changes by others.
- Consent-to-defend provisions requiring the writer to pay the client's legal fees if the content contains a mistake.
- Requirements to carry errors-and-omissions or liability insurance.
Freelancers should ask why a problematic clause is included; clients often use standard templates and may be willing to adjust them. They should discuss concerns clearly and directly, preferably by telephone or in person, and consult an attorney when questions remain. Freelancers should develop their own terms and conditions with a lawyer.
Indemnification and liability limits
An indemnification clause shifts potential lawsuit costs between parties and protects the indemnified party against losses from third-party claims connected with the agreement. Such clauses are used in medical writing and editing agreements to address risks from nonperformance, breach or misconduct.
A clause requiring the freelancer to indemnify, defend and hold the client harmless for claims arising from the freelancer's negligence, wilful misconduct, infringement of third-party intellectual property or breach protects the client without providing corresponding protection to the freelancer. With mutual indemnification, each party pays the other's losses to the extent its own breach caused them. One way to make the provision mutual is to repeat it with the parties' names switched; another is to state in one paragraph that each indemnifies, defends and holds the other harmless for losses arising from its own breach, negligence or wilful misconduct.
Practitioners differ on what they will accept: some require mutual indemnification, while others refuse indemnity clauses or clauses making them entirely responsible for the final work. One freelancer rarely encountered resistance to deleting clauses; in 11 years, only one client objected to removing the indemnity, and they agreed a cap equal to what it had paid her that year.
A writer of medication instructions for a pharmaceutical package insert was sued alongside the company after a patient brought a claim. Practitioners recommend a hold-harmless clause covering third-party claims from use of the material, preferably drafted by a lawyer for the writer's situation. One writer included such a clause in a contract with a major pharmaceutical company, which accepted it without objection. Another experienced writer routinely included a hold-harmless sentence addressing lawsuits over medical products or equipment functions.
Freelancers should revise clauses that impose medical liability inappropriate to the work and expertise being supplied. One editor removes provisions that do not apply to her editing work.
Restrictions on other work
Generic noncompete wording can create difficulties for a freelancer who works for competing companies. Boilerplate restrictive covenants can prevent work for anyone else, sometimes for years. Experienced freelancers have found that clients may not realise how restrictive their templates are and will often revise them when the freelancer explains that they will not take the client's business, help others take it or interfere with it.
Negotiable clauses
The following contract issues have corresponding changes to request.
| Issue | Suggested response |
|---|---|
| Restriction covering all an agency's clients, departments and locations | Restrict it to the client departments and locations where the freelancer actually works or interacts under the agency's supervision, and request client information on a need-to-know basis; most companies agree. |
| Restriction across a modality or broad therapeutic area, such as oncology | Negotiate a narrower field, such as PD-1 inhibitors in non-small-cell lung cancer, or offer to accept the restriction for a retainer. |
| Subjective payment conditions without definite milestones, such as journal submission | Request a 20%–30% deposit before starting and add “after payment of all invoices” to copyright transfer; most companies accept the copyright change. |
| No obligation to protect the freelancer's confidential information, such as an Employer Identification Number or bank details | Request reciprocal protection; most companies agree because they already protect this information. |
| No specified party or procedure for obtaining paywalled articles, implying freelancer responsibility | Ask for clarification in the contract or statement of work; most companies clarify it. |
Security and payment conditions
Some contracts require the freelancer to pay to protect the client's data; one group of experienced freelancers recommended striking such wording.
Payment conditional on work being satisfactory to the company or on undisputed invoices for satisfactorily completed services needs explicit criteria for satisfactory work. The contract should specify what can be disputed, how notice and a defence are handled, and whether mediation is provided; one experienced freelancer recommends requesting these details or striking the subjective wording.
Termination
Contracts should specify payment for work already done if either party terminates the project. A kill fee can be included as an early-termination penalty if the client cancels the project. Cancellation can affect work reserved for the principal freelancer after other parts have been subcontracted: in one case, a client cancelled two of four projects after the writer had subcontracted the other two.