As a media freelancer, you are an independent contractor providing a service to the hirer at your own risk unlike a full-time employee of an arts 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 exercising of your profession and you may have to pay damages to the hirer for damages that you caused. Thus, having a written contract is all the more important for you, so you are legally protected 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 hirer with terms and conditions both
of you regard as binding. It is best to always document agreed on terms
and conditions through a written contract, to avoid dispute later on.
A properly written contract ensures you and your hirer 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 hirer;
- There is recourse should you or your hirer not fulfil the terms of the contract; and
- There are agreed circumstances where you or your hirer can unilaterally walk away from the project legitimately.
Before a contract is enforceable, you must be clear of the following:
- Your hirer 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 hirer. 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. What this means is, you need to 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 a valid offer 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 hirer with little or no negotiation. Nonetheless, read these standard clauses carefully to ensure that you understand their implications, especially the clause on Liability.
Exclusion of Liability or Limitation of Liability
As a contract is usually given to you by your hirer, it will typically protect the interest of your hirer more than it will protect you. Hence, you may find a clause in your contract that excludes or limits your hirer’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 hirer 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 hirer against a failure to perform or fulfil 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 hirer 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 hirer. A contract given by your hirer will be in the hirer’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 arts practitioner friend.
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 hirer. 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.
For a sample of a Letter of Agreement, click here.
For a sample of a Performance Agreement, click here.
*extracted from the “ADVOCATES FOR THE ARTS – A LEGAL HANDBOOK FOR THE CREATIVE INDUSTRIES”, developed by the Law Society Pro Bono Services