I remember at one of my first jobs, myself and another programmer were working on a side project (outside of work hours, not using company resources in any way) that were considering monetising. Our contracts stated that the company we worked for owned all of our code produced in and out of working hours.
We got to the business end of the project and decided to consult our workplace to find out how strict they were on this. The conversation with HR went something like this:
> Us: Oh hey there, can you clarify clauses X/Y/Z in our contracts regarding ownership of code. We are working on a project we are planning on monetising at some stage and we need to know if the company is going to do anything about this. Our project has no conflicts of interest and we haven't stolen any IP of the company.
> HR: Oh... We've never had a question like this before... We can't say exactly. We'd have to consult our lawyers.
> Us: Cool - can you consult them and let us know what they say, please?
> HR: Sorry, we can't consult them as they charge by the minute and it's too expensive to warrant a conversation with them.
> Us: So... you're not going to answer our question.
> HR: Exactly. You'll have to do it at your own risk.
Previously, I was working at a startup that didn't have this clause and employed a number of people who were Debian developers in their spare time. They introduced new contracts containing this IP clause. We discussed them and the whole department (dozen or so of us) simply politely refused to sign them. The situation quietly stalemated for months until the company ran out of runway and almost all of us were made redundant.
Collective action can work, guys. Few companies can afford to lost a lot of devs at once.
There are much more egregious terms in most copy-paste contracts that you can helpfully point out to HR people if you're feeling helpful (or mean), including attempted rewrites of UK labour law (meaningless, it always takes precedence) or ceding rights, to more subtle things such as full-time jobs disguised as freelance contracts, putting you at risk if the taxman comes a-calling[3].
[1]: https://en.wikipedia.org/wiki/Course_of_employment [2]: It's mostly used to judge whether the employer is vicariously responsible for an employee's offences, e.g. was the delivery driver on his own time or was he in the course of employment when he hit the pedestrian? [3]: https://en.wikipedia.org/wiki/IR35
We would have similar terms but sometimes people work at home not on company equipment or within normal working hours, so it's normal for this term to be a bit broader, but in general most companies would agree that you can keep the rights to work not related to company business (if you ask and they are reasonable).
For instance, if I hire you to paint my barn red and specify the shade of red, it had better be that red or you failed to meet the terms of the contract.
On the other hand, if I simply specify "red" then any shade of red would fulfill the contract. The lack of detail was my fault.
Depending on how specific they were, you may have been able to do it. Or, you could have sent them a letter telling them your intentions and let them either loop in the lawyer, or, at their risk, ignore the issue.
Please don't ever rely on how it's supposed to be - always, always put in clarifying statements and examples in any contract. Everything should be extremely clear and readable by layman, otherwise even things that should be obvious can be devastating.
What exactly does a company think is going to be the outcome of saying "Oh, BTW, we might sue you for this, we might not and we're not going to give you a straight answer one way or the other" to one of their employees?
So why should the company change?
They will often not want to go to the trouble of going back and forth with the contract and will just accept it.
If anyone says it doesn't matter, we'll be doing it my way. Scratch it out, sign the changes and submit it back to them. Remind them they don't care about enforcing it anyway.
Meaning, as it always does, "We won't answer your questions, ever."
I also have something like "should not work in similar area within The UK". Again, how would they know? This conflicts with data protection act, therefore invalid.
To anyone reading this that gets this response in a negotiation, this is the go to line for any experienced negotiator when you come to them with questions about a contract. Always. Its like negotiation 101. Do not take the response at face value. Its a canned line that doesn't mean anything on its own.
The typical response is to say that it makes a good impression on the organization that they have yet to have any contract disputes and then get back to asking about your specific issues.
Although, the harsh reality is that for them to change this contract means they need to bring a lawyer into the situation and that costs them money. So realistically you need to be in a situation where you have some kind of leverage in the situation. That is pretty rare when you are alone on the labor side as opposed to the capital side. Sometimes you have to decide between taking a risk of getting screwed or walking away. Unfortunate reality of our economic system as it currently stands. As unions learned a long time ago, labor protections via government regulation is typically more effective than private negotiation. Without that, most people just have to learn to accept they you are going to get taken advantage of and work around it.
Seek legal advice. Not here. Not your buddy who reads supreme court cases and thinks he knows copyright from tradesecret. Go to someone with a license hanging on the wall. It wont cost any more than a filling by a dentist and probably less than your monthly cellphone bill.
However the company does not claim copyright or patents on work-unrelated ideas and (closed-source) projects.
Do you get fired, or do they claim ownership?
I would never agree to this. Generally, if you work at a place that commonly throws around the phrase "<X> is in breach of contract which is grounds for termination.", you're in a bad job that will not ever teach you anything or advance your career. You are working as a glorified contractor and should learn some warning flags to avoid the terrible corporate bus stops.
And HN comment thread thereon: https://news.ycombinator.com/item?id=13142327
The situation is quite simple:
- pre-existing work I contributed to this project remains under my copyright
- contributions other people make to this project remain under their own copyrights
- contributions I make to this project subsequent to November 2010 are under Google copyright
- nobody should really give a shit about this because a) I freely agreed to this even though Google has a process where I could have asked to retain my own copyright because b) the code is BSD licensed and you can use it however you like regardless of who owns the copyright.
[0] 'Moreover, some states, including California and Illinois, have laws that limit the effectiveness of assignment-of-inventions agreements where the invention was created outside the inventor's employment with the company.' -- http://www.masudafunai.com/showarticle.aspx?Show=5942
edit: I see - I initially misread parent. Yes, some Googlers are work-for-hire.
We've received very similar feedback recently and were going to do a review of the contract with our lawyers highlighting this specific issue. We'll also consider adding an FAQ around any contract nuances. We care about doing what is fair and while a lot of terms here are standard we'll try to review terms to make our position much clearer. Will share important updates.
Thanks
The fact that it wasn't, that an important issue was dismissed when raised in private, speaks far more to me than this public response.
They went from "lol, you're the only one with a problem, get lost!" to "hmmm, this is generating bad publicity.. now we definitely sympathize with your concerns!" real quick.
As far as I'm concerned, I now know all I will ever need to know about Gigster.
Your reputation is something that takes a lifetime to build and only 5 minutes to ruin permanently.
What you're missing is are two clauses regarding clear indemnification of the contractor, especially as it relates to pre-existing code, and two, clarifying IP ownership on that same pre-existing code. Gigster seems to pre-suppose that any pre-existing IP the contractor uses in the course of completing the contract is somehow assigned as property of Gigster upon execution of the contract. This is crazy.
Once you do get the new version of the contract, I suggest you read it from a random developers point to view. Maybe even have a "Show HN". Aim for reasonably unrestrictive? Because of this blunder, you now have more to prove! You wont have much of a marketplace if developers don't feel valued.
Why is a FAQ about your contract required? Isn't the contract the canonical agreement? Are you, in case of legal trouble, going to refer to both the FAQ and/or the contract? Seems a bit weird to me.
ps: I've found "standard" contracts are what everyone says when talking about their own contracts.
So why was the line "We have yet to have a disagreement (much less a legal battle) over the terms here" issued to the developer?
> does not contain any third-party software, including without limitation, “open source,” “copy left,” “public” or other similar code or anything derived from or based on any of the foregoing
So, since you left that clause in there, you either fundamentally do not understand how modern software is built, or you do, and you thought that it was OK to pretend that it doesn't work that way and maybe somehow you could hold the developers responsible for the 'misunderstanding' if anyone called you on it.
Or you have incompetent lawyers. None of the above really reflect well on you.
That's good.
> We certainly don't want to own code folks write outside of Gigster projects.
That's good.
But the contract apparently says something else.
This reminds me of a contract gig I had a while ago. I asked them similar questions about their contract, and they said "that's not what we intend to do". OK... so could they update the contract to state their real intentions?
A: No.
OK. I don't need the work that badly. If the contract starts with bad terms and them lying to me, there isn't much reason to move forward.
I'm just not sure what you would like them to do about it right now.
As a general rule of thumb, I'll only work for a client under one of three circumstances:
1. The client's standard contract is reasonable. This is rare.
2. The client's standard contract is unreasonable, but they're willing to cross-out or rewrite the objectionable bits before signing. This is very common.
3. It's worth everybody's time and money to get our respective lawyers involved. Hint: This will cost at least $1000 for each side, assuming 3 hours of legal time at roughly $300/hour.
This sort of email thread is one of several reasons I wouldn't touch a site like Gigster with a 10-foot pole. If I can't renegotiate an unreasonable contract, I'm not a respected consultant, I'm probably an interchangeable body.[1] If you can't afford three hours of your lawyer's time, you can't afford me.
The other reason why I wouldn't touch a site like Gigster is that those sites almost always turn into a race to the bottom for low-value jobs for the most difficult clients. It's OK to do a couple of those jobs when you're starting out—but once you've done real projects, your time is better spent networking to find new contacts.
[1] I might make exceptions for very large and established organizations, for the right project and budget.
I don't think it's OK at all. Some people will, for various valid reasons, need to work for sites like this for a long time or indefinitely. Even for those who only have to rely upon sites like this for a short time this kind of exposure to risk is not ok. It shouldn't be allowed. Contracts that totally indemnify a company in a situation like this shouldn't be enforceable.
I've been fortunate in my consulting, I take it you have too. Not everyone can rise above the rat race like we have and pick our clients to our liking. Furthermore, this is the future of work. The majority of new jobs added to the economy during the recession (sorry I can't find the gov't report) were considered "non-standard". This is the fastest growing sector of labor in the west. Ultimately workers doing "freelance" work deserve protections. Until congress reacts to this change in the labor force I believe it's incumbent on people like us to expose and push back on predatory contracts.
I definitely agree that as more people find themselves freelancing, we need to establish better legal protections for freelancers.
Lots of indemnity clauses are just ridiculous. Here's how to get over-broad indemnity clauses removed:
"Hey, I noticed you had some unusually strong indemnity clauses in your contract, which would require my company to cover your costs in situations X, Y and Z, which are outside of our control. As a general rule, we're not in the insurance business—we leave that to Lloyd's of London (laugh). But if this is important to you, I can look into purchasing a special insurance rider to cover these issues. This will delay the start date a bit and will obviously have an effect on the costs; I can get you a quote if you're interested. If not, we could replace this with <suggest standard, fair language here>."
If they're not willing to either (a) pay extra for the insurance they want, or (b) swap out the indemnity clause for something more neutral, then you walk. The only way to work for good clients is to discipline yourself to walk away from the bad ones. (Also, charge more, require a payment up front, and always quote daily or weekly rates, never hourly. This will improve the quality of your clients dramatically.)
Anybody who insists on broad indemnity clauses should be paying enterprise rates and the contracts should be reviewed by lawyers for both sides.
Another good approach is to pay to have your own standard contract drafted (without anything obnoxious in it), and send it to the client.
There's no way that's legal, right? Like, you can have a broad indemnity clause, even for willful malfeasance. You can have a clause forcing arbitration. But Gigster's clause says "as part of this contract, you have no recourse if we intentionally violate this contract". Surely that's not legal, in the same sense that you can't sign a contract which flows entirely one direction. It literally states that Gigster can't be treated as having signed the contract they are currently signing.
I've never actually taken a contract from one of these sites, but having looked at them before, this has been my observation every time I've considered it. Spend 20 minutes browsing posted contracts, getting increasingly frustrated, and then just write off the entire site.
The thing is, these sites aren't well-suited for creating contract relationships. To make money, they want to keep you at the site. Plus all of the commissions, etc. It's just like Homejoy, etc -- the value add is in the initial intro, but they're trying to make money off of you perpetually. It's not sustainable and it's never that successful in the first place.
Word to the wise: if you want to build a site that does something like this -- any potentially long-term arrangement where money is being exchanged for services via contract -- start by building a cross between Craigslist and Yelp, and then, once you're established as a good way for clients to find contractors, offer them some kind of long-term value add (automatic invoicing, timekeeping, whatever). Monetize the latter, but keep the former free.
I get one of these two patterns:
1. "Oh, okay, we see your point. We'll cross out clauses X and Y."
2. "Oh, thank you, we'll take this very seriously. Now we will have people talk at you for hours about why you can trust us and everyone else here was dumb enough to sign up."
An hour later that guy's bosses boss called me to apologize..
I said I wouldn't sign it in that case, and suddenly it turned out it could be changed after all....
My response is always something like "Thank you for acknowledging my contribution to the innovation to the recruitment industry, i'm very proud to be a pioneer in this field, being first is a great honour. One thing to note, i'm not opting in, i'm refusing to opt out, i dont need to opt-in to the law. I've chosen to do this because theres no reason to and the law specifically protects me from you forcing me to do so. Also, since your client has already decided to hire me, even if i was to opt out, it wouldnt be recognised in court as the opt out paperwork must be signed before i ever meet the client."
For this point on the agency regulations, i do it primarily just to make the recruiters work for their exorbitant markup on my day rate. However i do also question source code and copyright clauses like the author did, almost always, i'm looked at with dumbfoundment that i even bothered to read the contract.
If anyone wants to know the regulations i'm referring to, heres a link: http://www.contractoruk.com/agencies/5158.html
I would simply state I can't sign as is. The only times I got pushback (rare) an annotated letter from accountant or PCG (now IPSE I think) contract review and the agency buckled. I also demanded proof that the agency-client contract matched on IR35 terms. Was never once caught by it.
Does the agent want to lose commission? Does the agency want me telling the client direct why I've changed my acceptance?
I realise regulation and the market has changed some since I last contracted, hmm, 8 or 9 years ago. Still can't imagine signing any agency contract as-is, they were always horribly one-sided affairs.
Or better yet, if they send it to you electronically, change it however you like, sign it and send it back. If they don't read it it's kind of their problem.
I once got out of a compete clause because the recruiter told me that I should go to the fedex store, pick up this contract, sign it immediately and fedex it back. I asked about having time to read it and he told me not to bother. So I didn't.
When I was hired away by a competitor and he was yelling at me on the phone I reminded him of this. It helped that my new employer had indemnified me and was willing to pay the court costs to fight it for me.
Once my lawyer and their lawyer got to the point they talked directly, contract modifications and negotiation proceeded at a brisk pace.
But many companies were offended I didn't just blindly sign the contract. Even when they clearly contained clauses that were problematic.
I was also routinely handed contracts with clauses that would have forced me to violate other contracts if I signed both. For instance, one contract would require me to disclose anyone else I worked with over a 24 month period while another contract would prevent me from disclosing anything about an engagement. (I usually signed neither.)
Thankfully my main client's contract was eminently sensible, so I mostly worked with one amazing group of engineers for awhile.
Eventually some of the annoyances of freelancing made me come around to exploring a full time position. So I am in one of those now and enjoy it actually quite a bit.
Basically i dont stand for their shit, but i'm in a very privileged position of never once been desperate to accept a position, its always been very easy for me to find work. So if i need to walk away, i will. Its those who dont have this option and will agree to any terms put in front of them i feel sorry for.
I looked into this law (the actual wording of the law itself even) and found it to be mostly harmless. I also came across the wording which nullifies the entire regulation from being enforced if you opt-out after an introduction, which happens in 99% of cases, so I wasn't too worried.
So, I understand why they were hesitant to respond and didn't want to comment on it.
If I were to sign that "contract", I would certainly send the other party a written "signing statement" that interprets all possibly ambiguous clauses in my favor, and mentions that I received no valuable consideration for signing it. If you can't tell me what the contract means, I'll tell you what I thought it meant, and that will be what you can enforce. If you won't pay a lawyer to answer my questions before the fact, you can certainly pay one to determine the implications of my letter for you after the fact.
If I were a judge (and I'm not even a lawyer, but I can still role-play), refusing to even answer questions about the contract demonstrates a lack of equity, and I'd take that as potential grounds to dismiss any claims against the person who asked them, that may have been based upon the document they signed, which they were completely unable to negotiate, and likely received no valuable consideration for. If someone asks, "does this mean you can claim ownership over X?", you don't answer definitively, and then you later claim in court that you own X, that's bullshit, pure and simple. If the other party did not understand that to be the case at the time they signed, it is unenforceable.
If I were the defendant, I think I would also try to paint that refusal as an unwillingness to pay for some professional legal counsel at an appropriate time, rather than asking a judge to clean up their mess long after the fact. Everyone hates it when they get snubbed by someone, and then that person later comes asking for a favor. Referring legal questions to legal counsel is simply a cost of doing business. If you can't pay that cost, and try to shift it to the public legal system, how do you justify the rest of your business?
I didn't say that. I said that I disagree with the way he framed his questions.
That's how you select people who either don't bother reading contracts or too afraid to question a company policy in fear of not getting a job.
Both behaviors are not what you would expect from a good and self-respecting developer.
Contracts are negotiations, if you are unwilling to negotiate your side of the contract YOU are the handful... and probably worth not working with.
Another issue I feel I should bring up: Gigster has problems paying out on time. The contract specifies net-15 terms for payout, but I've personally had a payment delayed for a month beyond that, with no visibility into why or what was going on. I often see complaints on Slack from others of payouts delayed that long, or longer.
I just want to confirm everything you wrote there. Gigs dried up around october, meaning devs/designers that didnt have tons of PM contacts simply havent had any gigs for the past few months. This was raised multiple times, and HQ always promises to do something -but nothing ever comes of it, there's absolutely no info on how much work is in the pipeline, no transparency, nothing.
Then, as you say, everyone outside of HQ and pms has no way to apply for gigs. PMs guard this furiously and this leads to some pretty nasty interactions, completely unprofessional ones - pms being rude, brusque, dismissing, or keeping info from a dev.
One time I signed on a gig and only then did the pm tell me that I was going to be doing on-call duty. This wasnt factored in the payout, so I would make essentially 20$/h over the course of the gig. I tried to raise this issue with the Delight Team (internal customer service) but apart from taking 2 weeks to even get back to me - nothing was done, I was just removed from the gig.
Also, ditto on late payouts. A lot of people have had issues like this, payouts not going out for weeks. It's been a work in progress since early last year and HQ kept on promising stuff "yeah, we fixed this, itll be good now". At least theyve fixed their contractor-facing site, which was experiencing problems all throughout 2016.
Finally, the cherry on top - gigster, like other shops that hire contractors, is required to send a 1099 to the contractor and to the IRS by January 31st. As you can imagine, they've kinda failed here too. A lot of people didn't get their 1099s and a lot of people are reporting errors on their 1099s. It looks like they outsourced this out and whoever did it messed up transferring data from contractors' W9 into the 1099.
Their goal is to be remain necessary and collect a paycheck. They're middle-men and this is why I encourage devs to talk directly to clients and get used to solving client/customer/user problems through direct feedback rather than relying on the broken telephone system.
Also this is when unions and co-operatives start to look like a good idea. If Gigster and other sites like it were operated as co-operatives, where every freelancer is also a member of the organization, they wouldn't be so inclined to hire middle-men and to rip people off.
First, don't respond to HR with a complex set of legal questions. They wont know the answer and will push back -- corporate attorneys will charge astronomical amounts and these questions could even get the board involved -- which the CEO usually doesn't want to do.
My suggestions:
1) The strike: Print the document, strike out what you don't want. Scan it, return it to the HR dept. with, "Hey cool signed!". Only do this if you are pretty senior.
2) The re-write: Take the document rewrite it, with the statements you don't like removed, then return it to HR with, "Hey cool signed!"
3) The 'it is coming!' (for junior guys):
Take the email and delete it. Say you never got it. They will resend it, take it and place it into your spam folder, two weeks later say you never got it. Then reply back with your w9 two weeks later. Then if they complain reply with a w9 3 weeks later. Continue until you have clout then do 1 or 2.
We often spend $10k-$30k on each new hire. If you make it through that pipeline and they try to strong-arm you on the first day... they're going to have a rough time.
Before responding to an offer, I've found it important to ask, "Please also send me a copy of the employee handbook and any employment agreements or other documents that I will be expected to sign on the first day of work."
I've done this ever since the time I quit one job, started another and then on the first day was presented with an HR packet full of "standard" forms to be signed.
I wonder why companies even delude themselves into thinking such things are enforceable without a real, negotiated, two-party contract, with valuable consideration given by both sides.
It's essentially just signing the document that says, "I have read the corporate handbook, including the company policy on X." If you violate the policy on X, their remedy is to dock your pay or fire you from the company. They can't lawfully enforce anything in court. (Which isn't to say that they won't ever win. The courts tend to favor those willing to pay the most to win.)
Remember, if it's in the contract, it's what's happening. Let no amount of promises persuade you.
"We always pay our bills on time so there's no need for that!"
"Great! In that case you don't have to worry about every paying it either so we'll leave it in!"
I wonder if they even have a lawyer familiar with software development on-board.
I imagine they do, specifically so that they can own their developers to the greatest extent possible - see Uber etc. (and I am referring to Uber drivers, not developers.)
Sure they do -- and that same lawyer approved this agreement (if she didn't draft the whole thing for them) that is weighted entirely in favor of the company and their interests.
1. A meeting of minds i.e. both parties agree on something.
2. Consideration; usually money. (This is why you sometimes see donated things sold for a dollar.)
When faced with signing a new contract that asks for more of something, I'd recommend asking for consideration of some sort. (1)
"Oh, new contract? Let's talk about my new salary."
(1) At least if you're an in-demand software developer.
But you make a good point that I wasn't aware of.
That's why it only works if you're in a field like software development where you have some leverage.
Moreover, everyone uses this language. It is funny, but I suspect that most of Silicon Valley just recycles the same 3-4 contracts, that individual lawyers just modify slightly.
I have now worked with 60+ tech companies (Looker, Gigster, Strava, etc) - with 15 of them I had to look over the verbiage on my own.
With a first couple, I was just as suspicious. But after discussing with lawyers, I learned that there are two major issues:
1) not everything put in the contract is enforceable. In fact, just because all lawyers recycle the same contract, does not make it more enforceable. It is a simple leverage in bullying that lawyers depend on, should something occur
2) individual paragraphs have to be interpreted in the context of the entire engagement. In other words, did you have have access to Client's data on other projects. Yes, then you bet, your IP rights should be waived as they pertain to those projects.
Bottom line, relax and focus on good faith.
That is quite possibly the WORST legal advice that I've ever heard with regards to contract law (and you're in very tough competition here)
Oh do I hate this line. But it's a two-way street. I'm very fortunate that for one of my first freelance gigs, I read the contract and specifically pointed out that I would be using personal/open sourced code snippets, and that I might want to reuse/open source some of the code I produced for them (only snippets with general interest).
They agreed without a flinch, and thanks to that experience, I'm going to hold every other employer to the same standard "I never had a problem with this request with any other employer, why would you want to refuse?"
I love that! I'm totally going with that next time :D Also, I'll probably throw in something like, "I'm surprised you say nobody else has mentioned it. This problem applies to anyone using open source code, which is basically everyone. Do you really want to hire developers who pay so little attention to details?"
For companies, you all should be very clear on what your contract allows and doesn't allow. That will help everyone and allow folks to self select away from you if they need or want to.
I understand the motivation of Gigster (own as much of the output of a developer as possible while at the same time pushing as much risk as possible to the developer), but agree that such spooky terms don't help attract talent.
The only way to get rid of these kind of labor unfriendly terms in the current environment is to avoid them like the plague.
So is a Gigster developer contractually obligated to build everything from zero and take advantage of no OSS whatsoever? This seems like asking to handcuff your developers into writing terrible software by reinventing the wheel.
Or do they have some additional "in-writing" approval document that specifies acceptable OSS licenses? Several companies I've worked for had lists of OSS licenses that were reviewed and approved by general counsel as acceptable (pretty much the list boiled down to BSD, MIT, Apache).
Then again it seems like if that were the case, the sensible approach would be to write the contract such that using open source software is acceptable, so long as it is offered under a license that appears on an approved list and does not obligate the release of the entire project's source code.
I asked them for feedback and got the same reply that they can't provide any feedback (even after 3 rounds of interviews).
I reached out to the developer who interviewed me and after a couple of days, he replied back saying that Gigster doesn't allow him to provide any feedback!
Avoid interviewing with them, in my opinion.
I mean, obviously I have no way of verifying the authenticity of any of this, so I'm just going to assume it's accurate. But in my experience this kind of behavior from companies is more common than it should be.
At best, that is a terrible way to treat developers. At worst, they just effectively guaranteed that only the most ignorant developers sign up with them. After all, the first thing I learned was to ask questions about every single ambiguous term in a contract.
If this doesn't change, I don't see anything good in Gigster's future. Smart talent will leave, jobs will dry up and the whole platform will disappear.
The probability keeps getting lower as new members join :|
The contract template was written by the company's legal team to protect the company, it may have some terms in it that seem like they are an "agreement" (like how you'll get paid)... but really the goal is to keep the company safe. And, to be fair, I'd fire any lawyer who didn't give me a contract like that... so it's not the lawyer's fault. But if you sign it... you're agreeing to it. Easy solution: don't sign it. (But of course you presumably want the job.)
Middle-ground solution: Read the contract, red-line / annotate things you have concerns / questions about, and ask if you can speak with legal. If it's a small business... they will probably weigh you comments against their lawyer's hourly cost... and more often than not just agree to let you cut things out of the contract. If it's a larger company... you're probably locked in if you want to work there -- that's just the reality of it. If you talk with legal, do your best to understand what their motivations are and make sure the contract is explicit. You can also ask for exceptions for side projects by simply declaring, "Any work done for side projects X, Y, Z shall not fall under the scope of this contract."
Anyway look, it's a negotiation. You can test the limits, nothing is set in stone. You're the only one who is on your side. Everyone else is out to fuck you. Safe assumption.
It doesn't matter how many "thousands of successful milestones and payments without issues with the terms," there is a vital flaw (in their favor) with said contract.
Contracts are easily done on a case-by-case basis, and dubious clauses are routinely renegotiated.
All of this is irrelevant however when even the lawyers won't answer a simple contract law question. I won both of the suits mentioned above by proving their position to be indefensible.
Which I believe you have done. Keep your integrity, your current and future clients will recognize it.
Reply is:
> We have yet to have a disagreement (much less a legal battle) over the terms here.
Ok then.
This contract has probably been written by a lawyer who doesn't understands software development.
I run digital agency and we've lost projects in the past that couldn't get past legal departments because they did not want us to use any open source software (or transfer the copyright to open source work)
From the BAR[1]:
Not only are non-compete covenants void in California, but an employer may be
liable in tort for wrongful termination if it fires an employee who refuses to
sign an employment agreement that contains an unenforceable covenant not to
compete. D’Sa v. Playhut, Inc., 85 Cal. App. 4th 927 (Cal. Ct. App. 2000). This
rule holds even if the agreement contains a choiceof-law or severability
provision. Id. at 934. The concern is that the presence of an unenforceable
non-compete covenant in an employment agreement may have an undesirable
deterrent effect on employees who do not know their rights under California
law. “[I]t is not likely that [the defendant’s] employees are sufficiently
versed in California’s law of contracts such that they would know (1) that the
covenant not to compete is invalid and therefore not enforceable by [the
defendant] and (2) that they could sign the agreement without fear they would
be bound by the covenant not to compete.” Id
[1] https://www.americanbar.org/content/dam/aba/events/labor_law...
Note to self: Don't hire Gigster developers. If a dev does not pay attention to this kind of stuff or thinks it's okay, I don't feel all that comfortable having them work on my projects.
In general, the applicability and effect of broad catch-all employment agreement's clauses will vary between jurisdictions - This is part of why they're drafted in a hyper-defensive manner. No small business is going to shell out for legal to obtain 300+ jurisdiction specific form agreements.
There may be very clear bright-line rules dealing with your issues as raised which put you in the clear, but you won't know unless you consult an expert. Because of the nature of the employment bar, you can get straightforward accurate advice for very little investment - if you approach obtaining advice properly.
Take the time to draft an email to local employment counsel setting out your concerns, attaching the proposed agreement and setting out the scope of review you would like him to perform. Ask for a quote. Repeat until you find a good fit.
I understand especially with the race to the bottom they'll always have someone new enough to sign these types of agreements, but everyone I know with experience or seniority avoids the platforms because of how ludicrous these restrictions are.
"How to Lose a Talented Developer in 10 Seconds"
I always say: If you haven't been fucked you haven't been in business very long.
> Gigster is a smart software development service, combining top developers and designers with artificial intelligence.
Am I the only one who does not understand what that even means?
Do they bring together matching developers and designers using their artificial intelligent algorithms or the developers and designers they hire have artificial intelligence?
They're asking for unilateral power to end the software career of any of their contractors, even decades into the future. Worse still, the demand their contractors to sign away any legal right to recourse... And in exchange they offer mediocre contracting work.
Screw those guys.
Unfortunately, these interactions always seem to favor companies over individuals. People in general don't enjoy bickering over legalese so individuals don't want to ruffle feathers by pushing back, while company employees are able to take cover under the umbrella that they're just following policy. Truthfully though, it is most often companies-not prospective employees-that initiate legal discussions by presenting contracts and individuals should feel justified in verbalizing any concerns they have. I think this is possible while still remaining professional and courteous.
The first thing I did was look to Google to see if any other developers in the past had similar concerns as me, which brought me to this Quora post - https://www.quora.com/Is-the-contract-for-Gigster-reasonable... Richard's response was helpful and thorough (if you're reading this, thank you!) and although he had additional issues with the contract, my main concern was with sections 2.1 and 2.2 (assignment of IP to Gigster for work not specific to the customer and the exemption of pre-existing IP from being assigned to Gigster including only that which is explicitly outlined, respectively).
I actually discussed the contract language with my family and got some good advice from both my father and brother. They agreed I was within my right to voice my concerns so long as I did it in a productive way. For example, instead of presenting problems by just stating language I didn't like they told me it would be better to provide solutions in my response by offering amendments that I would feel comfortable with.
To this point I had interacted with three individuals: 1. The person who had reached out to me about joining Gigster 2. The individual that emailed me the DocuSign link containing the contract and 3. The individual that sent me a (possibly automated) response after my application was submitted to their website. Let's call these individuals Peter, Paul, & Mary.
I emailed my concerns to Paul and Mary, not knowing which would be better to handle this sort of thing. I received word back from Mary saying that Paul was more familiar with the contract so she'd let him handle it. After two days I received an email from Peter asking for an update on my onboarding process. I explained that I had emailed Paul about the contract and hadn't received word back but that I'd ping him again. Peter told me he would also follow up through other channels. I never did get a response from Paul personally, but after another two days I received word from Peter that he had spoken with Paul and the Gigster legal team and was wondering if I could hop on the phone.
Peter was very open to my concerns and explained the reasoning behind the contract language. I said that I understood, but that admittedly I still took issue with it. Peter seemed to understand and honestly that was pretty much that. He offered to share a Google Doc with me so I could highlight/tweak language I was uncomfortable with and afterwards the contract was promptly signed by both parties.
I also reached out internally to Peter, Paul, and Mary over slack before making this post so they could have a heads up. Paul explained to me that he was not really involved with the Gigster contract or its hiring policies, just that his role involved setting up the onboarding tools and this automatically attached his email to a lot of the communications; which would explain the lack of responses I saw. Paul told me he was “neither encouraging nor discouraging [me] from posting,” but Peter and Mary responded in support of me posting my experience to HN, which I thought was pretty cool.
For future reference here is a portion of my email to Gigster containing the changes I requested, which were accommodated:
I am a little uncomfortable with some of the language in sections 2.1 & 2.2 and was hoping we could revise:
a. Section 2.1 assigns ownership to Gigster not only of all Deliverables, which makes total sense, but also of all source code "including but not limited to source code developed or created by Contractor that is not specific to Customer and is generally applicable to other Customer projects and deliverables ("Community Code")." This language seems quite broad and what constitutes "Community Code" seems a bit difficult to define; I'd prefer to remove the last part of this sentence so the section instead reads "...or any Confidential Information (as defined below) (collectively, “Inventions”). Contractor hereby makes all.."
b. Section 2.2 exempts any of my pre-existing IP from being assigned ownership to Gigster, but then seems to require all such pre-existing IP be disclosed in writing. This seems difficult and probably unnecessary so I'd like to remove "in each case ((a) and (b)) that are expressly set forth in writing to Gigster prior to delivery of the Deliverables to Gigster." and just end the sentence after "any intellectual property rights therein."
if you can get in touch with a director about this, and they are smart, they will probably want to fix this for everyone after about a moment's consideration.
Obviously not legal advice.
My thinking, reading ONLY the dev's original email, was the same as what they wrote: then I read their reply and found their phrasing MUCH better.
Here's all you would have gotten from me:
------------------------------------ answer email I would have written ------------------------------
>Some questions I have about with this contract: (allowed for by section 11.5):
>>"including source code developed by Contractor ... generally applicable to other Customer projects"
We do not claim the source code for work you do that is unrelated to and not used by your work for us. If you develop some tooling that is general but used in the project, you have to assign rights. If you can't assign rights (for example it's open-source) don't use it. Use only new code that you develop and assign over to us fully.
>"Contractor agrees to indemnify Gigster from any and all claims, damages, liability, settlement, attorneys’ fees and expenses, as incurred, on account of the foregoing or any breach of this agreement"
Your reading is correct and we have absolutely no desire to appear in court for any reason. You waive all your rights to sue us. If you do want to sue someone, you will have to go work for a big company and go sue them, they will be happy to appear any number of times to dispute anything you want. We are not going to change that language.
That said we haven't had disagreements and don't intend to have any - we rely on you, after all. Put another way, we pay you more instead of taking that money and paying some lawyers to go argue with you. (This clause specifically prevents frivolous lawsuits - I want to reiterate that we don't have disputes with our developers. You can go talk to them and see how they are treated.)
>>"does not contain any third-party software, including without limitation, “open source,” “copy left,” “public” or other similar code or anything derived from or based on any of the foregoing"
>So I can't derive code from examples from django or flask documentation, cited stack overflow snippets, etc. etc. in my work? I'm not sure that would be a very effective way to operate.
There is nothing stopping Django from suing anyone using any of the source code they have included in their documentation. Copyleft is even stronger and our clients would be bound to freely make available the complete source code used by anything.
My suggestion is to learn to program, by reading documentation, and then simply code your own solutions. Likewise you can certainly peruse Stack Overflow for inspiration.
I will add that as a general rule we are not concerned about software patents, so that you do not have to be concerned about your "inspiration" leading you to use a technique whose implementation is generally protected (no matter what specific source code implements it).
However, as legal advice, please don't actively seek out patent status (willful infringement is a multiplier on damages) and if you do learn of a software patent affecting an algorithm you wish to use, seek an alternative. We've literally never had an issue with licensing.
So to summarize: by all means, read other people's code to learn a language. Read other people's responses on stack overflow and in documentation to learn specific approaches. By all means learn to program, from any source you want. Write your own code and assign it to your clients.
I hope this helps answer your questions as well as tell you some of our thinking. Our developers are treated very well. Let me know if there's anything else I can tell you or if you have any other questions!
"
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
that's literally what I would have said. There's nothing that needs clarification or change and the language the original dev quoted is incredibly clear and perfectly fair.
But, man, their response is even better. It says the same thing - but so much better. (Actually I lied - I wouldn't have thought of saying they treat developers really well -- so I included that part in my statement of what I would have written, even though I wouldn't have written it.)
In all this is awesome work by them : )
I don't have any disclaimer to make - no relation to the dev or Gigster.
--
EDIT: I got downvoted but their response is still absolutely fine.