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Why You Need A Podcast Guest Appearance Contract

photograph of a podcast microphone and books ready to research what's in a good podcast guest appearance contract

Let’s talk about some annoying problems you might deal with without a podcast guest appearance contract. A podcast guest contract is there to put everyone on the same page in terms of how you operate when you bring guests on your podcast. So what’s the worst that could happen without one?

https://youtu.be/f2ZjqKgafB4

Podcast Problem #1 – Release Dates

Thing number one is they might demand a certain release date. A good podcast guest appearance contract will say that you’re not obligated to release an interview on any date. What if something timely happens that you want to address on your podcast? Hello, 2020, right?

Podcast Problem #2 – Episode Approval

Next is that a guest could request the ability to approve the episode before you release it. That just adds an extra step. And maybe you don’t want to have to deal with that. So that’s something that a good contract will address.

Podcast Problem #3 – Forced Release

This is a biggie…what if the interview goes terribly, but the guest demands that you release the episode because she’s given her time to you already in recording it? You’ve heard me talk about what makes a contract binding. There’s a little something called “consideration,” which is the promise that each party makes in order to enter into the contract. “I promise to do this, you promise to do that, voila.”

I’m guessing you’re not paying your guests. So the “consideration” that they’re really receiving is the opportunity to be heard and to be on your platform. If you don’t make it clear that you’re not obligated to publish that interview in your contract, they might insist that you do so because they’ve given that consideration to you already.

Podcast Problem #4 – Pre-Promotion

Another thing that could happen is that your guest promotes her appearance on your podcast before you’re ready to do so. That might not be a big deal, or it might be a big deal. You don’t want to get scooped by your own guest.

Podcast Problem #5 – Co-Ownership

And then finally, and as you can imagine, this is a big one…maybe your guest claims co-ownership of the recording because they’ve helped you to create that recording. A good podcast guest appearance contract will make it absolutely clear that you the podcast owner own that recording.

Need a podcast guest appearance contract of your own? (A non-intimidating one that you can send to your guests, stress-free?) Click here.

Head to spear-ip.com/quiz to take my quiz on finding the legal blind spot that secretly killing your business. Not only will it tell you more about that blind spot, but it’ll help you figure out how to fix it.

What is a Third Party?

If you’ve read a contract, or two, or three, you’ve heard this term a lot. But do you know what it means? By the end of this post, you’re going to understand what “third party” means whenever you see it in a contract, or a Privacy Policy or Terms of Use, or Membership Agreement, or any kind of contract.

https://youtu.be/hjSJ53GlpeE

What does third party mean when you see it in a contract?

An example might be in a privacy policy where there’s a paragraph that says, “We don’t take responsibility for any third party links or privacy practices for websites that are linked through our website.” What does third party mean, in that contract? Well, think of the contract as between two people, you and the other party — whether it’s your course members, or whether it’s a contractor, or whoever the other party is — that’s you, and person two.

Think of it as anyone outside of that contract.

So an outside website would be a “third party” website. Third party materials, like in the context of stock photos, would be materials that belong to someone that’s not a party to this contract. It’s someone that’s not part of our contract between us two people. (Or between two businesses.)

I hope that helps you to better understand this super common contract term. Next time you see it, remember, they’re referring to someone that’s not part of the contract you’re entering into.

So you’ve had your business for a while you feel like you’ve got a pretty good grasp on the business stuff. But you can’t help that little voice in the back of your head that feels like there’s some legal issue that could be out there that can come back to haunt you, right? I want you to go to spear-ip.com/quiz to find out the legal blind spot that secretly killing your business.

3 Times You’ll Need a Standard Non-Disclosure Template

computer ready to be turned on to use a non-disclosure agreement

Let’s talk through three times when you’ll need a standard non-disclosure template on hand. By the end of this post, you’re going to really have a good grasp on the three different times when I think you should have an NDA on hand.

So what’s an NDA?

NDA just means non-disclosure agreement. It’s also called a “confidentiality agreement,” and it protects your confidential information. And there are three scenarios where I really see that people need to have kind of a standard non-disclosure agreement on hand where they can change it as needed and send it off.

Employee or Contractor Onboarding

The first one is when you’re bringing on an employee or a contractor or somebody who’s going to help you, but will have access to confidential information. Whether it’s sign on codes, access to social media platforms, access to client marketing, data, and analytics, all of that confidential stuff. When you’re bringing someone on board that has access to it, you’ll want an agreement in place. Why? Because if you don’t have it in writing, then your confidential information could lose its confidentiality status. Yikes!

Access to Confidential Information

The second time you might need a non-disclosure agreement? When you’re trying to figure out whether you even want to do business with someone. I call this “evaluation purposes.” And basically, you want to feel out whether this is the right person for the job or the right person to partner with. But you know that you have to share at least some confidential information with them in order to even figure out if they’re a good fit.

Mutal NDA

The third scenario is just like the second scenario, except you’re both kind of feeling each other out. And you’re both going to be exchanging confidential information. That is called a “Mutual Non-Disclosure,” where you are mutually agreeing to keep each other’s mutual confidential information, confidential.

And by the way, if you need those non-disclosure agreements on hand, I’ve got a little NDA bundle for sale in my contract kit shop.

The Worst That Can Happen Without an Independent Contractor Agreement

What could possibly go wrong if you don’t have a written document between you and a contractor? In this post I will run through what’s the worst that could happen if you don’t have an independent contractor agreement.

https://youtu.be/IA5gV7gGoLY

So what can go wrong if you don’t have an agreement in place with a contractor?

Without an independent contractor agreement, you won’t own any of the content

The default rule of copyright ownership is that the creator owns what he or she creates, unless there’s an employment relationship going on, then there’s a little bit of a different rule that applies there. So yeah, the default is that the contractor owns it, not you. And that applies, even if they have helped you to create something. So you can go after a copycat if you don’t actually own the thing that they’ve copied. And Yikes, the contractor could come back one day and claim rights in the intellectual property that he or she created. And then what do you do? Yeah, best to get that stuff in writing.

Your confidential information may not remain confidential

There is no default rule to confidentiality, meaning I don’t have an obligation to keep something confidential. (Well, I do because I’m a lawyer.) But contractors don’t have an obligation to keep something confidential just by virtue of working with you. If someone has access to your confidential information without restriction, then yeah, it’s not confidential.

You could be in breach of your own client contract

By that I mean, the contract that you have in place with your clients. Maybe you’re involved in some creative services, whether it’s copywriting or social media marketing, or graphic design, and you promise to give your clients rights to whatever you create. Well, you have to follow that chain of title, that chain of documents.

If you are using a contractor to help you with your workload, you need an independent contractor agreement, for that first reason. That default copyright rule. Because if they haven’t given you rights, you can’t give your client rights.

Imagine this scenario:

  • You surf Upwork and find the perfect contractor for a particular job.
  • Contractor creates something that you deliver to your client.
  • Contractor creates the same exact thing for another company.
  • Your client finds out about this other company thinks that they’re infringing because client thinks they own all of that work.

And your client spends money on attorneys fees, trying to shut it down, only to find out that actually, the contractor owns the rights to that stuff, not your client.

How would your reputation be affected, not to mention your Google rating, if that stuff isn’t in place isn’t in writing with your contractor? Make sure you

  • Own your stuff
  • Your confidential information stays confidential
  • And you don’t tick off your client

That gives you a good idea of what can go wrong if you don’t use a written contract with your independent contractors. And if you need an independent contractor agreement, I’ve got one for sale of my shop. I hope that helps and I’ll see you next time!

Find out the legal blind spot that secretly killing your business. Head to spear-ip.com/quiz and you’ll be taken through a set of fun questions to identify that legal blind spot. You’ll find it out and then you’ll find out how to fix it.

What Representations and Warranties Are in a Contract

business partners researching what are representations and warranties

I’m breaking down common contract terms in “What’s In My Contract.” Today we will look at “representations and warranties.” That sounds really legal, doesn’t it? They’re in a lot of contracts, especially service contracts. And I’m going to tell you what representations and warranties are.

So usually you will see representations and warranties broken down in two. So:

  • Client represents and warrants these things;
  • Company represents and warrants these things.

It’s usually basically this: each person is promising that certain preconditions are already met.

Let me give you an example.

Client represents that it has all necessary rights to grant the rights granted in this agreement.

That’s a super common representation and warranty. That means that Client is promising that they have all the necessary rights to grant any rights that they are granting in the contract. It is a promise that they have already taken care of XYZ that will help them to perform under the contract.

Another representation or warranty might be that you represent and warrant that you’re not under any contractual restrictions that would prevent you from performing under the contract. Again, it’s promising that this is all taken care of, we promise that we are able to enter into this contract and we’re not violating anything else by entering into this contract.

A representation is kind of like a promise that this is true.

And then a warranty is a promise that you will pay up essentially if that representation is false.

They’re assurances. Promises. Assertions of fact.

So I hope that helps you to better understand what the heck representations and warranties means. And I’ll see you next time.

What Does WHEREAS Mean in a Contract?

Let’s talk about another common contracts term, shall we? In what’s in my contract, I break down some of those boilerplate, common contract terms that you might find in a lot of contracts, but maybe don’t quite understand.

This time, we’re talking about “recitals.”

What the heck are “Recitals”? You see them at the beginning of a contract, and they always say something like:

WHEREAS blah, blah, blah;

WHEREAS blah blah blah.

What does WHEREAS mean, anyway?

It’s a word used in the recitals section. And you know what? I kind of hate recitals. You’ll never see them in any of my contracts. But you see them in a lot of contracts. So what are they?

Recitals, aka the WHEREAS section, are like introductory statements. They kind of set the scene as to why maybe these two parties are entering into a contract.

So, in the case of a dispute, the recitals might state that Jane and John disagree on whether Jane has infringed John’s trademark, but they are entering into the following agreement without any admission of liability.

The whereas section lays all of that out. BUT…

They are not legally binding. That’s right! Even though they’re in a contract, unless there’s something in the actual body of the contract that incorporates those recitals into the contract, they’re not a binding part of the agreement. But, they’re really not supposed to include any rights or obligations. They’re more, like I said, scene setting, setting the stage for why this contract is happening. That’s it.

Now you understand what does whereas mean in a contract. And, you understand what “recitals” are. I hope you never have to see them because they’re annoying.

What does the HEADINGS section in a contract mean?

about to take notes on what headings in a contract are for

It’s been a few years since we dove into “what’s in my contract.” (That’s where I decipher common contract terms.) In this post, I take a look at HEADINGS and what the HEADINGS section means in your contract.

By the end of this post, you will understand what the headings section is and what the heck it means.

What are headings?

Alright, so HEADINGS.

Sometimes it’s its own section. It could be in a really long miscellaneous section.

That caption — that underlined part, sometimes it’s capitalized completely, sometimes it’s bolded — that word or that partial sentence that’s before the rest of the paragraph starts… that’s called a heading.

Here’s what a typical heading section will look like.

typical language for a headings section in a contract, reading "The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement."

What does the headings section in a contract actually mean?

The heading section says just because a paragraph might have a particular heading doesn’t mean that that heading should affect how that paragraph is analyzed or interpreted.

Let me put it into context for you.

So maybe there’s a paragraph called “IP Rights.” But that paragraph doesn’t actually grant any IP rights. Well, without the headings section, someone might try and argue this paragraph section is called IP Rights, so that means that I should be entitled to some IP rights.

…No.

The headings section in a contract basically says: no, no, no, you can’t use the heading to affect what that paragraph means. You need to actually read the paragraph.

It’s a little bit common sensical, isn’t it? But there you go. That’s what the headings section a contract means.

How to Change a Contract After It Was Signed

woman researching how to change a contract after it was signed

Have you ever wondered how to change a contract after it was signed? I’m going to tell you two ways to do that in this post.

Contractual Do-Over

So the first way to change a contract after it’s been signed is to update that original agreement with whatever term you want to change, and then have everyone sign it again.

Your contract should have what’s called a merger clause.

That clause basically says “this contract is the full and final version of an agreement between us and supersedes all other prior versions.” In other words, this version takes the place of any other version of this contract.

An Amendment: Not Just for the Constitution.

The second way is to create an amendment.

An amendment amends the original version, only to the extent of whatever is covered in that amendment.

This can be good for things like

  • an amended payment schedule,
  • different deliverable due dates,
  • changing an event date (hello, 2020)

…anything in the original version that you want to amend.

Pretty easy, right?

So I hope that helps you to better understand two different ways to change a contract after it was signed, and I’ll see you next time.

THE Telltale Sign You Have a DIY Contract (and why it’s bad)

woman creating a diy contract

The telltale sign that you have a DIY contract. In this video, I’m going to tell you about the telltale sign that I see that tells me you have a DIY contract, and why it’s really not so good.

Stick around to the end and I will tell you about my brand-spanking-new resource for content creators that will help you deal with copycats. I’m Maria Spear Ollis, lawyer for content creators, and this is the Spear IP show.

Before I get into that telltale sign, I want to explain to you what happens when there’s a dispute over your contract. Basically, if there’s ever a dispute, and something in your contract is ambiguous, that ambiguity is resolved in favor of the person who did NOT draft the contract. In other words, the contract is interpreted against the person who drafted the contract that is you.

So what’s the telltale sign that you have a DIY contract? Your defined terms are all jacked up.

What the heck is a “defined term”?

A defined term is that capitalized word in your contract. You usually have several defined terms, things like “Company,” “Deliverables,” “Services,” that kind of stuff. They have a very specific definition within the context of your contract. So the “Services” specifically means blah, blah, blah, blah, blah, blah, blah, blah, blah services, right?

So here is the problem that I see. Maybe you refer to yourself by your actual name in some paragraphs of your contract.

“Jane Doe will provide the following Services.”

Okay, fine.

Then you refer to yourself by something like “Company” and you say something like “Company has approval over all artwork.” Okay, well, you’ve referred to yourself as Jane Doe, you’ve also referred to yourself as Company… it might be a little ambiguous who “Company” refers to. So if there’s ever a dispute about approvals, now you have a contract term that says Company must approve all artwork. If it’s ambiguous, if it’s hard to determine what that means, it’s not going to be interpreted in your favor.

So that’s why it is super, super, super important to make sure that all of your defined terms in your contract, line up. That means being consistent in what you call yourself and how you label other things.

I hope that helps you understand the number one telltale sign that you have a DIY contract, and I’ll see you next time.

Are All Contracts Legally Binding?

woman taking notes on whether all contracts legally binding

Are all contracts legally binding? That’s a great question. The answer is yes, so long as you tick off all the little boxes in the elements that make up a contract. In other words, there are certain factors that make up a valid contract. If you stick around to the end, you will learn something about contracts — and writing — that might surprise you.

So aside from being of legal age to enter into a contract, there are four things that you have to satisfy in order to make up a valid contract: mutual consent, offer and acceptance, consideration (and no, it’s not like… caring about something), and legal purpose.

Mutual Consent.

That first one, mutual consent. That’s sometimes called a “meeting of the minds.” In other words, you and the other person are all agreeing to the same thing. You’re all on the same page as to what you’re agreeing to.

Offer and Acceptance.

Two, offer and acceptance. Pretty straightforward, there is an offer on one hand and an acceptance of the offer on the other hand. You can see where you might poke holes in a situation where… was that offer really accepted? Was there even an offer?

Consideration.

Consideration is something of value that you are giving in exchange for whatever the other person is giving. So, typical scenario is: I agree to provide services, you agree to provide payment, we are each providing consideration. One is services, the other is payment. We’re each providing something in order to enter into this contract.

Legal Purpose

And then legal purpose: you can’t contract for something illegal. (Sorry.) If you’ve satisfied all of those things, yep, it’s a valid contract.

Why Having it “In Writing” Does and Doesn’t Matter When it Comes to Legally Binding Contracts

Notice! I did not say that it has to be in writing in order for it to be a valid contract. I was one of two A’s in my contract, law class in law school thank you very much, and there was a little something called the “Statute of Frauds.” I know that sounds very legal. But it basically says that certain types of contracts are only valid if they’re in writing. That’s stuff like real property, real estate. You have to have it in writing in order for that type of contract to be valid. But in general, a contract does not have to be in writing in order to be valid.

This is why I say you should always have your agreements in writing. Not in text messages, not in DMs, not in emails back and forth, because those things can make up a valid contract. Or they could provide holes that you can poke into the agreement that say was there really an offer? Let’s scroll back through these emails. Was there really acceptance? Let’s scroll back through these DMs. Avoid all that. Avoid all that just have it all in a document.

So, I hope this helps you better understand that yes, all contracts — so long as you tick off all the elements of a contract — are legally binding.

4 Legal Documents Involved in Pivoting Your Online Business

woman thinking about pivoting her online business

By the end of this post you’ll know more about four legal documents that are involved in pivoting your online business. And it’s not as intimidating as it sounds. We’re going to be talking about trademark applications, non-disclosure agreements, work for hire, and a trademark license. So here we go.

Trademark Application

So first, a trademark application. Contrary to what you might think, you can’t add to an existing registration. Once you register your trademark, it’s registered in connection with whatever product or service that you’ve registered previously. What you can do is register the same mark, but in connection with a different offering altogether. Are you registered in connection with podcast episodes, but you’re pivoting your online business and offering e-courses under the mark? Simple. You’ll basically file another application for the same trademark, but under that new category, that educational services/e-course category.

Non-Disclosure Agreements (aka NDAs)

People often refer to non-disclosure agreements as confidentiality agreements, they’re the same thing. It basically protects confidential information from being disclosed to the public. Who might you disclose confidential information to when pivoting your business? Maybe a manufacturer, maybe a contractor, but again, that non-disclosure will help keep that information confidential.

Work for Hire/IP Rights Agreement

You’ve heard me talk about Work-for-Hire/IP Rights Agreements before. (I have one for sale in my Contract Kit™ shop). If you’re pivoting your business, odds are that you’re needing some new, creative content. Essentially, anyone that’s creating any creative content for you — whether it’s graphic designs, slides for a presentation, a logo, a new website — anyone creating something creative, should sign this type of agreement. Under U.S. Copyright law, just because you’re paying somebody to create something for you doesn’t mean that you own it. So the purpose of the work for hire/IP rights agreement is to make sure and reinforce that you own all of the copyright to that work product.

Trademark License

And finally, a License Agreement. A license agreement is meant to help you where someone is already offering something that you want to sell. And rather than reinvent the wheel, and come up with a formula for perfume, let’s say, you go to someone already in the business of making perfume, and you license your brand name to that existing product. You may be a blogger for entrepreneurs and you want to venture out into creating a physical planner for instance. Or you are a podcaster but you are venturing out into your own sound equipment line. Or maybe you’ve built your fame around a little ol’ cooking show and now you and Macy’s partner up on things like sheets. (Hello, Martha Stewart.) You are venturing into a new area but you may be licensing your brand and your reputation in connection with an existing brand.

So there you go. You’ve got your trademark application, your nondisclosure agreement or confidentiality agreement, you have a work for hire or IP assignment agreement, and trademark license.

I hope that helps you understand some of the different documents that go into pivoting your online business.


How a Force Majeure Clause Can Help an Online Business

woman investigating how force majeure clause can help an online business

In this COVID-19 world, everyone wants to know if force majeure applies. In this post, you’re going to learn what “force majeure” means, what it does, and when it applies. We’ll also look at some force majeure sample clauses and I’ll give you some examples of business transactions and how they’re affected by force majeure. Essentially, you’ll see how a force majeure clause can help in times of emergency.

First, what is “force majeure”?

It’s French for “superior force.”

It’s a clause that appears towards the end of a lot of contracts, especially service-based contracts.

It basically excuses non-performance or not living up to your end of the contract for circumstances out of anybody’s control.

What can a force majeure clause do?

Well, it could suspend everything until the force majeure is removed or eliminated or out of the way,

It can say, “everybody can walk away if a force majeure event happens,”

It can, but it doesn’t always, talk about what happens to any money that’s changed hands as of the force majeure event. So, refunds, deposits, etc.

When does force majeure apply?

Currently because of COVID-19, everybody wants to know if it applies in the case of a pandemic. Of course, the answer is it depends on what the contract says. 

So, let’s look at these two sample force majeure clauses.

Example 1:

Neither party will be liable or responsible to the other party, or be deemed to have breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is cause by any: (I) flood, fire, or explosion; (ii) war, terrorism, invasion, riot, or other civil unrest; (iii) embargoes or blockades in effect on or after the date of this Agreement; (iv) national or regional emergency — including, but not limited to, pandemic, uncontrollable and/or imminent spread of contagious disease; or (v) strikes, labor stoppages or slowdowns, or other industrial disturbances (each of the foregoing, a “Force Majeure“)…

This first version specifically talks about what is considered a force majeure event.

The second version is similar, but different.

If Company’s performance of the Services or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond Company’s reasonable control that could not be avoided by the exercise of due care including, but not limited to, acts of God, illness, injury, emergency, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars (“Force Majeure”)…

Notice it says “force majeure includes, but is not limited to…” certain things. That leaves room to say hey, maybe a pandemic is included in this definition, even though it’s not specifically listed.

How a force majeure clause can affect online businesses: two scenarios

As I said, it can affect different businesses in different ways.

One example would be in a brand or partnership/collaboration agreement. As an influencer you may have agreed to do a certain number of posts on a specific topic.

Well, does force majeure somehow prevent you from doing that? Are you supposed to be posting from a live event of some kind or in a specific location that you can’t access because of a force majeure event? These questions show how a force majeure clause would be important in this scenario.

It also applies to in-person events. Even though the final event is conducted in person and not really on the Internet, certainly tickets are sold on the Internet. And, promotion of the event goes on on the Internet, sponsors are announced and splashed across the Internet. So, reviewing sponsorship agreements or other similar agreements may be necessary during a force majeure event.

What to look for

It’s important to know what happens under your contract because when an event that’s out of anybody’s control happens, of course everyone is going to be worried about funds. So, you want to determine:

  1. What is a force majeure event under my contract?
  2. Is there an express definition of what is considered a force majeure event or does it have that kind of “including but not limited to” language.
  3. What does my contract say happens during a force majeure event? Is everything just kind of stopped and suspended until it all goes back to normal? Or, does it say everybody can walk away if a force majeure event happens with no further obligation?
  4. Finally, and you may actually have to look elsewhere in your contract, but what happens to money paid up to that force majeure event date? Does it get refunded? If your contract talks about a non-refundable retainer I might say, yeah, even if the force majeure clause doesn’t talk about what happens to money in the case of a force majeure event, non-refundable means non-refundable.

So, look at your contract, see what it says in terms of what to do in a force majeure event.

I hope this post has helped you to understand what is force majeure, how it applies in different industry settings, and how it can help an online business.