Getting your head around website legal documents as a WordPress consultant is a pain in the butt. Personally I'd rather skewer my eyeballs out with bamboo shoots.
Thankfully, I don't have to do that because my good friend Jeanette Jifkins is a lawyer, loves WordPress and is here to help.
Website Legal Documents
During this brief chat, Jeanette talks about the legal documents we need to be aware of, how to protect ourselves from scope creep, dealing with nondisclosure agreements and how to advise clients on their website legal requirements.
Download the audio file here to listen offline.
Full Transcription
Troy: Good day. Troy Dean here from Agency Mavericks. I have with me all the way from Queensland, Jeanette Jifkins. Is that right, Jeanette? You're in Queensland today?
Jeanette: That is right and it's a beautiful day here today.
Troy: Oh, stop it. It's 13 degrees and cold. That's Celsius, by the way, 13 degrees and cold and raining. Actually, it hailed this morning here in Melbourne.
Jeanette: Oh, my gosh.
Troy: Yeah, lovely, great. I was going to walk to work today and it hailed. I took the car instead. Hey, for those that don't know which most won't, Jeanette, what do you do and why are we on this call?
Jeanette: Yeah, great question. I'm a lawyer.
Troy: Cool.
Jeanette: [Of all things 00:36], I actually love what I do. What I have been doing for the last five years or so is working really closely with people doing business online and internet marketers, digital marketers, that kind of thing. I help essentially people to protect their business while they're doing business online. Looking at all the contracts, dispute resolution, compliance, terms and conditions, all of the myriad of bits and pieces that you don't know, you don't know until you run into trouble. I look after that and help people do that.
Troy: Awesome. You said you're a lawyer and you love what you do. Is that … ?
Jeanette: I do.
Troy: Those two things usually don't go hand in hand or … ?
Jeanette: Apparently not.
Troy: Right.
Jeanette: There's an awful lot of unhappy people in the profession, but I was always a nerd at school and I happen to really like writing contracts.
Troy: Right, cool.
Jeanette: Yeah, I'm just lucky.
Troy: Awesome. Hey, we spoke recently. You were actually introduced to me by one of our Agency Mavericks members, [Phillip Craig 01:35]. I thought we get lots of questions about stuff that I'm not qualified to answer. I know that's hard to believe, but especially around accounting and legal stuff. My good buddy, [Mike McHenry 01:47] from Geelong came on and talked a lot about managing money and Accounting 101 for WordPress consulting business and I thought it would be good to get you on the line and just ask some quick questions like the most common questions that we get around running a business as a WordPress consultant or freelancer. One of them is do we need to have contracts with our clients? If so, what do we need to put in them?
Jeanette: That is a very good question and there are an awful lot of people who run around without contracts, but the purpose of the contract is it's really hard to remember what you've agreed in a conversation even an hour after the conversation. The purpose of the contract is document what that agreement is so that two weeks, two years down the track, you're all on the same page and it helps you to avoid disputes.
Now for people who do design or anything online for other people, some of the key things that I know they run into trouble with are the number of edits or changes or rehashes, all of that kind of thing. If you [haven't 02:56] set out upfront how I will do this for this amount of money, then you can unwittingly create the expectation in a client that you'll do anything for the amount you've created for them. That is the single biggest problem I get with web developers and clients doing that kind of thing. Really being clear about what you do and don't do for clients is a very important thing to have in that contract.
In actual fact, I wrote an article and published it on LinkedIn about three weeks ago exactly on this topic. It was the top five legal things you should have in your contract for services and one of those things was what you do do and what you don't do.
Some other key things are payment terms. It's very hard for a lot of small business people to ask for money. If you have it … It really is.
Troy: Yeah.
Jeanette: They'll do all this work and then, they'll be really nervous about asking to get paid for it. If you've got it in your written contract and it says you've got seven-day terms or 14-day terms or you require a 50% deposit upfront, it's just really easy because you say to people, “These are my standard terms.” You don't have to stress about negotiating that again in the future.
They're just two simple things.
Troy: Yeah. Great.
Jeanette: There was one I mentioned to a client the other day. It wasn't the number of changes. It was something else. It'll come to me.
Troy: What if a client, you get halfway through a project and the client starts saying, “I would like to add all these new features to the website,” is that where a contract can be really helpful to just come back and draw them back to the contract and say, “This is what we agreed on?”
Jeanette: Yeah, that was it. You can have an extra provision in a contract which says, “If you want anything outside the proposal here, it's going to cost you this much or we will re-quote you or whatever. We'll quote you for additional work before we do any.” Now that's a discipline in itself in that if that's the process you want to take, you actually [do before 05:02] that process, instead of just going ahead and doing the work because if you go ahead and do the work, that's when you don't get paid for it.
Troy: Yeah, that's right.
Jeanette: Yeah, having a provision that says, “The proposal is this and anything outside the proposal, we'll quote you or you'll pay an hourly rate,” makes it much easier.
Troy: Perfect. The thing is I think what a lot of freelancers get caught up in is this is actually standard operating business practice.
Jeanette: It is, it really is.
Troy: There's nothing unusual here. Most small business owners expect that you would have terms and that you would have … This is the payment terms. This is the way that we do business. In fact, if you go to any other service provider, they have a standard way of doing business and standard payment terms, and most of those are not up for negotiation. This is the way that we do business. Yeah.
Jeanette: Yeah. In actual fact, probably the best example of that is I had a client recently that had just prepared their service agreement. The very first time they used it, the response they got from the client was professional it was.
Troy: Yeah, exactly. What about what we need to have on our website? If we're putting ourself out there as a web consultant, we've got a portfolio, do we need to have things like privacy or disclaimers or any of that kind of stuff?
Jeanette: Yes. The answer is yes. Probably a really good example with privacy is if you think about it and you're trying to rank your page, and this is from a purely non-legal perspective, Google has been sued in every court around the world on privacy so for them, privacy is important. They're the people who program the box that troll the net to rank your page. If you don't have a little privacy link on your page, I don't know whether that impacts you or not, but just for safety's sake, why would you not have a privacy policy?
The other thing is it adds integrity to your business. You let people know actually, we are not Ashley Madison. We are going to do everything we reasonably can. You don't have to have the same level of protection that the banks have depending on the amount of information that you collect, but you have a reasonable level of protection for the information you collect from people. You should only collect what you need to complete the work for them.
With me, it's a little bit different. As a lawyer, I have certain obligations from my practice standards to say I have to verify identities and all sorts of things. From time to time, I collect copies of driver's licenses and things like that, and it's a verification of identity thing, but that's because I have that obligation.
If you're a freelancer, the kind of information you want to collect is names, phone numbers, email addresses, probably a postal address. Then you just keep that information secure and you don't share it with other people. Now that doesn't mean you can't share it with an outsourcer. All those sorts of provisions you can include in your privacy policy. It's really clear to your clients this is what we collect. This is why we collect it. This is how we use it, and this is what we do to protect it. Yes, it's worthwhile having a privacy policy.
Terms of use, a lot of people say, “What's the point? Why would you have them?” Your listeners might be aware that back in, I think it was 2007, there was a blogger in the UK who reviewed online games and he reviewed Evony, and his comments were not favorable and Evony took offense. He was in the UK. Evony had offices in the U.S. All of their developers are in China. They sued him for defamation out of the Sydney Federal Court.
Troy: Wow.
Jeanette: Or the Supreme Court, one of the courts. Anyway, they sued him in Sydney. Now the only reason it didn't go ahead was because the social media response was, “Pull your heads in. Don't be ridiculous. If you continue with this proceeding, we'll boycott you.” They went what's called forum shopping and they picked the best jurisdiction in the world where they thought they had the most likely ability to be paid.
Troy: Wow.
Jeanette: If you have terms of use on your website, you can say to people, “If you want to pick a fight with me, you have to come to me where I live and comply with the laws where I live, not try and take me the other side of the world to defend myself.”
Troy: Got you.
Jeanette: That's one fundamental thing. Another really good thing to include in terms of use on a website is copyright provisions. Particularly if you're putting up some of your portfolio and some of your work and you don't want people copying it without permission, you can specify all that, your DMCA notices. All those sorts of things could be in your basic terms of use on your website.
Troy: Yeah.
Jeanette: The other thing was disclaimers. Now disclaimers, it really depends on what kind of work you're doing, whether or not you need a disclaimer. I usually recommend to people in high risk industries so, people doing health services and things like that, financial services, they definitely need disclaimers. As a freelance web developer, you may or may not. Your disclaimer would probably say that you … Because you're really advertising services. It may or may not apply to the work that you do.
Troy: You might say something like, “Despite our best endeavors, we can't guarantee that you'll get on the first page of Google within the first seven days of launching your website,” for example. Right.
Jeanette: Absolutely, yeah, yeah.
Troy: Just to manage people's expectations a little bit, yeah.
Jeanette: Yeah, yeah, particularly if you're not doing any [SEO 10:46] for them.
Troy: Yeah. Yeah, exactly.
Jeanette: Even if you are, ranking on the first page in seven days would be pretty phenomenal.
Troy: Yeah, exactly. It is the number one phone call we get after we launch a website. “I've just typed in accountants, [Carlton 11:02], and I'm not anywhere near to be found on … ” Oh, dear. How do we recommend these? Because the offshoot of this is that we then have to go and educate our clients and say to our clients, “You need a privacy policy. You need terms of use and you might need a disclaimer.” Is it the web developer's responsibility to make sure they've got them? Do we just say, “Look, we're not lawyers, but we think you should have this. You should go consult your solicitor?”
Jeanette: Absolutely. You're not qualified and you can't give legal advice. Don't try because that can get you in trouble with the regulators. The best thing is to say, “Look, in most cases, people will go and get these terms and conditions, and they'll seek advice from a legal advisor to do that.” We have particularly for startup businesses, my husband's a computer programmer so, he built a plug-in for me that allows anybody developing WordPress websites to use a free plug-in to upload basic privacy policy and basic terms of use. They're basic fundamental protection. At the moment, they're written more for an Australian audience than an international audience. He's in the process of playing with that at the moment, but that's on lawforwebsites.info.
Troy: Cool.
Jeanette: Anyone, if you want to value add to your client and give them basic protection, you can use that free plug-in. The only thing with that is I always recommend to clients, look, as soon as they're making more money than they can afford to lose, they really need to get those things reviewed.
Troy: That's a great way of putting it.
Jeanette: Yeah. For some people, $500 a month is more than they can afford to lose. For other people, it's significantly higher. It's always a commercial decision for a business. What risk are you prepared to take? This is how you can monitor it and take the right steps when you need them. The advice would be refer people.
Troy: Sure. I'm going to put a link to that plug-in underneath this blog post. It's lawforwebsites.info, but I will put a link on the links video so people can click through and go and grab that free WordPress plug-in.
Final question we get a lot of is, “I'm a WordPress consultant. I'm developing websites for clients. I've got too much work on. I need to find another third party developer to come on and help me, but I'm scared that this third party developer is going to steal all my clients.” We get asked a lot, “Do you have any boiler plate templates for nondisclosure agreement? Is that the right document to be using?” What's the best way to handle that situation?
Jeanette: A nondisclosure agreement works in terms of asking people not to share the information that they receive. What you've got to really think about, to me, it would be more of a service contract between you and the subcontractor. You can specify the things in terms of the scope of the work you want them to do, payment terms again, just making sure that they don't overcharge you, that it's fixed work for service so you're not paying them an hourly rate or whatever. That kind of thing you can sort out. The nondisclosure and non-compete restraint, whatever you want to call it, can be part of that as well as the confidentiality. It depends on what you want to achieve.
I did actually write one recently for a client who wanted a one-pager and the one-pager was basically, you don't steal my clients or my staff and you keep everything I give you confidential. It can be done in a one-pager. It was more than one page, but briefly. You can think about more substantial terms, particularly if you're going to use an outsourcer frequently. You can give them a contract and say, “All of the work that you do for me over the next 12 months is governed by this one contract,” that kind of thing. It depends what you want to achieve. Nondisclosure by itself doesn't usually contain non-compete provisions or don't poach my client provisions. Nondisclosure is usually about protecting confidential information.
Troy: Confidentiality, yeah.
Jeanette: Yeah.
Troy: Awesome. Hey, I think this has been really helpful. I've certainly learned a lot. I'm sure our listeners and our viewers will have as well. Where can people reach out and connect with you online, Jeanette?
Jeanette: Cool. Lots of places, but probably the best place is to go to the website which is onyx, O-N-Y-X, onlinelaw.com. We are just a .com. I think if you hit the .com though, you get a redirection link. Otherwise, I am on LinkedIn and you're welcome to join me on LinkedIn. Yeah, that's probably the best way to contact me.
Troy: Awesome. I'll put all those links underneath this episode, underneath this blog post so people can reach out and connect with you and stay in touch.
Jeanette: Cool.
Troy: Thank you for sharing some of your time and expertise with us here at Agency Mavericks.
Jeanette: Not a problem. It's been lots of fun.
Troy: Awesome. Thanks, Jeanette.
Jeanette: Thank you.
