(updated 29 May 2020)
(Please note that the information contained in these pages are provided – “as is”, – with no guarantees of completeness, accuracy, – or timeliness. SAMPP assumes no responsibility or liability for any errors or omissions.)
The media industry is very fast paced and assignments can often come in at the last minute. This has led to the industry practice of not always beginning assignments with written contracts. When things go well, contracts tend to be viewed as unnecessary paperwork that takes time away from creative aspects. However when things go wrong, we hear many common sayings such as “but that is the industry practice that has always been for 10+ years” or “I didn’t know I’m not protected/liable for such and such.” Such misconceptions and lack of understanding exist from both clients and freelancers alike.
Why must I sign a contract? I don’t understand all these terms, it’s scary, can I not sign it?
The contract exists to protect both parties entering an agreement. Contracts are the basis of negotiation in a business transaction.
As a media freelancer, you are an independent contractor providing a service to the client at your own risk unlike a full-time employee of a company. This means you will not be protected by the Employment Act nor enjoy benefits like employer CPF contribution, work injury compensation, medical and dental subsidies or paid annual leave.
Furthermore, you are not protected from liabilities which may arise from your professional practice and you may have to pay damages to the client for damages that you caused. Thus, having a written contract is all the more important for freelancers, providing legal protection, at the very least, against unpaid fees.
Why should I have a written contract?
A contract is essentially an agreement that has been reached between you and your client/production house with terms and conditions both of you regard as binding. It is best to always document terms and conditions through a written contract, to avoid dispute later on.
A properly written contract ensures you and your client are aware that:
- You (and not someone else) have been contracted;
- Your work has a specific scope;
- There is an agreed time-frame to complete this specific scope of work;
- You will be paid an agreed amount;
- Responsibilities are marked out clearly between you and your client;
- There is recourse should you or your client not fulfill the terms of the contract; and
- There are agreed circumstances where you or your client can unilaterally walk away from the project legitimately.
Before you sign a contract and embark on a project, do check that:
- Your client has offered the project to you with agreed and clearly stated terms;
- You have accepted the agreed and clearly stated terms in writing; and
- There is a clear intention from both parties to create this legal relation.
The signing of a contract typically involves the handwritten signatures of you and your client. However, the Electronic Transactions Act (Cap.88, 2011 Rev.Ed. Sing.) allows for electronic records to be used in expressing and accepting an offer to form a binding contract. Do be careful with off-hand responses to job offers or terms within the job offer done via email or WhatsApp, as the offer may be deemed legally valid and your response may be taken as acceptance of the offer, just like a binding and enforceable written agreement.
Boilerplate legal clauses I should include in my contract
The term ‘boilerplate clauses’ refers to relatively standard clauses which tend to be agreed upon between you and your client with little or no negotiation. Nonetheless, read these standard clauses carefully to ensure that you understand their implications, especially the clause on Liability. You may also refer to our page on boilerplate contracts for sample contracts you can use.
Exclusion of Liability or Limitation of Liability
As a contract is usually given to you by your client, it will typically protect the interest of your client more than it will protect you. Hence, you may find a clause in your contract that excludes or limits your client’s liability for anything from breach of contract to negligence. In the same vein, you may have to bear liabilities beyond your means if you breached the contract or are negligent. Hence, always negotiate for a fair limit to your liability before signing on the dotted line. That said, be assured too, that in Singapore, the Unfair Contract Terms Act (Cap.396, 1994 Rev.Ed. Sing.) acts as a safeguard to protect persons in a weaker bargaining position (that’s YOU!) who may not be able to bear the full extent of the liability for the breach of contract.
This is by far the most important clause to have in any contract as it stipulates how any dispute that may arise between you and your client will be resolved. Mediation is usually the least expensive and the least time-consuming amongst the various forms of dispute resolution.
This clause protects both you and your client against a failure to perform or fulfill contractual obligations arising from unforeseeable circumstances beyond the control of either of you, such as natural disasters, like an earthquake or flood. This clause may also include how your fees or compensation will be handled in such cases.
A governing law clause specifies which laws will govern the interpretation and enforcement of the terms of your contract. The choice of law usually reflects the country where you or your client is situated in or where the subject matter of the contract is situated.
You may find these sample contract clauses developed by Mr Ng Joo Khin of Morgan Lewis Stamford LLC helpful in working out your contract. You can also reference the sample contracts in our Resources section.
To sign or not to sign? My contract has unfair terms!
Contracts will never be equally fair towards both you and your client. A contract given by your client will be in the client’s interest first and foremost. However, this does not mean that you have to accept all contract terms. Do negotiate as much as possible with your hirer on terms you deem grossly unfair, be it payment amount, payment period, scope of work, liabilities you need to bear for late delivery etc. If it seems daunting, do discuss and assess your risks and liabilities with a trusted industry peer.
So, the answer to the question “to sign or not to sign?” is “yes, sign” if you have done fair assessment on the terms in the contract and you are satisfied with your background check on your client. That said, it is still worthwhile to always have a Dispute Resolution/Recourse clause in your contract to safeguard yourself against any dispute that may arise when work begins. For an individual, mediation is usually the least expensive and the least time-consuming amongst the various forms of dispute resolution.
If I Breach My Contract, What Will Happen to Me?
Depending on the seriousness of your breach, you may suffer termination by your client, a demand for damages, or worse, you may be sued and taken to court. However, if you breach your contract because of reasonable causes, e.g. discovering you have a critical illness, then do communicate honestly with your client to try to find an alternative solution.
However, if negotiations fail between you and your client, seek third party assistance, e.g. through the use of mediation services. However, as mediation is a voluntary process, it does not mean that your client is obligated to go for mediation just because you would like to do so. Hence, always include a Dispute Resolution/Recourse clause in your written contract.
If My Client Breaches Our Contract, What Should I Do?
If your client breaches the contract e.g. fails to pay you on time or fails to pay you the agreed amount, exercise the Dispute Resolution/Recourse clause in your written contract. That means your contract must include the all-important Dispute Resolution/Recourse clause so that the client is contractually bound to go for the agreed method of dispute resolution, e.g. mediation, if he flouts the terms of the signed contract.
Generally, the recourse available to you includes:
- termination of contract;
- claim for damages;
- specific performance of an act (which is usually a term stated in the contract) e.g. to return all copyrighted materials to you;
- injunction requiring a party to do or cease to do an action.
*extracted from the “ADVOCATES FOR THE ARTS – A LEGAL HANDBOOK FOR THE CREATIVE INDUSTRIES”, developed by the Law Society Pro Bono Services