The Way We Work
October 5, 2009 by Alex Hornbake

Contracts are most likely not your favorite part of freelance work. Hammering out a watertight, legally binding agreement can be a bit of a distraction when what you really need to do is get some work done for your clients. So your choices are: operate on a handshake, purchase an off-the-shelf contract, or employ a lawyer to draft a custom one.

Employment ContactWhile we aren’t lawyers, and wouldn’t presume to tell you how to write your own work contracts, there are a few items that may be worth considering. Below are some of the terms that can cause heartburn when drafting a contract, and how we address them in the oDesk Marketplace User Agreement.

Don’t Stiff Me (Services and Fees) – Determining what work is to be done, and how much to be paid is most likely the crux of your contract.
oDesk’s take: oDesk encourages you to be upfront about your rates, and guarantees payment for hourly work. Providers should act in good faith to complete the desired work, and buyers are obligated to pay for hours spent (within the agreed upon weekly hours) or the agreed fixed price.

I won’t be back. (Termination) – An escape clause can be a touchy subject. Addressing the possibility that the project or working relationship won’t work out can cast a dark cloud over an agreement, but it’s necessary that both parties be protected.
oDesk’s take: Hourly assignments may be terminated by buyer or provider at any time, and the Buyer is obligated to pay for hours worked prior to termination. Fixed Price Assignments may only be terminated by mutual agreement.

Who owns what? (Work Product and Buyer Deliverable) – Assigning ownership of Intellectual Property is important. Who own the source code? What happens if your client hires a third party to modify it?
oDesk’s take: Providers do not retain Intellectual Property rights. Any copyrightable works prepared by Provider in connection with an Assignment for Buyer shall be “works for hire.” Any materials that the buyer provides along with an assignment remain property of the buyer. The provider is obligated to destroy any copies of that material after an assignment is completed.

Don’t borrow without asking. (Pre-existing Intellectual Property in Work Product) – Reinventing the wheel isn’t necessary, but being upfront about what work you are building upon, is. Sure, you can build an e-commerce website at breakneck pace if you develop it based upon an off the shelf CMS, but does your client know about the licensing fee? What about the payment module for their merchant account, are you going to purchase it, or roll your own?
oDesk’s take: If providers wish to use 3rd party software (or other IP) to complete an assignment, then they need written consent of the buyer. This includes open source software. It is assumed that providers will delivered unique IP that then becomes property of the buyer.

Shake on itIncluding the Details? (Entire Agreement) - Using your proposal as the basis for, or as an exhibit in your contract can be great for insuring that all the details of project are included, and that your obligations are clearly outlined. Any agreements made through oDesk are considered part of the service contract for that particular assignment, so it’s important to be clear about expectations with buyers/providers, but rest assured that clear effective communication will translate to your assignment’s Service Contract.
oDesk’s take: The Service Contract outlined above, plus any agreements made between buyer/provider inside the oDesk Marketplace are the full terms of the Service Contract for that assignment.

Be sure to also check out the oDesk Policies Page, it provides detail of the information given above, as well as some useful insights in to how to make the most of the oDesk Marketplace.

Alex Hornbake

Freelance Tech Writer

Alex Hornbake is one of several freelance writers on the oDesk Blog team. He joined the oDesk marketplace in 2009, and brings more than a decade of technical expertise to his clients. Alex shares his point of view to help you make informed decisions for your personal and business technology choices.

  • DG

    Do you have tips to share with provider companies, especially when the contact is between the company & providers within the team.

    • Erica

      We really can’t advise in specifics beyond our own marketplace agreement. If you have concerns, I would suggest reviewing the text of the oDesk Marketplace User Agreement (which every oDesk user has agreed to) with legal council.