Addition October 30, 2014: in comments a meaty discussion has started on a subject that’s related but different – NDA’s (Non-Disclosure Agreements). They rarely arise in speaking engagements but they can often be part of “the business of patient engagement.” Have a look if you’re interested.
This is the latest in the Speaker Academy series, which started here. The series is addressed to patients and advocates who basically know how to give a talk but want to make a business out of it. I’ll try to be clear to all readers, but parts may assume you’ve read earlier entries.
I’m at the Institute for Healthcare Improvement’s 25th annual forum in Orlando, participating in a day of patient speaker training. In side conversations one thing that came up is the business relationship: getting paid. And that starts with the contract.
Do you need a contract?
Contracts weren’t important for me when I had few engagements and little pay. But when things got busy I needed structure. The contract I use (at right) provides:
- A clear record of logistical details: where, when, arrival & departure, how you can list it, etc.
- A clear record of finances: fee, expense reimbursement, and down payment
- Who’s expected to be in the audience. (Today one speaker told of a case where she was sure an audience would be nurses, and found out at the last minute it was patient advisors!)
And of course in the rare case where a relationship goes sour, the contract records who owes what to whom. It’s not that you’ll end up in court – to the contrary, it keeps you out of court, because the rules are already in writing.
I also added sections for things that kept popping up as problems:
- I need to use my own computer, not theirs.
- I don’t want to distribute my slides in advance.
- Instructions on proper spelling of my name (more of a problem for me than for most people!)
- If you record it for your future use, I get a copy for my future use (on my website). I use these on my videos page, for marketing and to educate any visitors who want to watch.
The non-refundable down payment is an important business term. The client is asking you to say no to any future invitations, and you need to be protected if their situation changes. Plus, in rare circumstances, three big problems have been known to pop up:
- The person you were talking to doesn’t really have permission to spend the money. Yikes!
- The person you talk to may be great, but the people who write checks might be jerks who take forever to pay. Yikes!
- The client’s plans change, and they decide to cancel the event. (This one happened to me just last month.)
All three are detected quite fast if the client doesn’t come through with the down payment. That’s MUCH better than discovering it at the event or after. So ask for a down payment, and follow up on it. There’s rarely a problem, but when there is, you want to know soon.
Click the image at right to download a PDF of the fill-in-the-blanks contract template I use. The original is a Word file – if you want a copy of it to modify, contact me. (Being a typesetter, I made it a fancy layout, but you don’t have to. Plain text is fine.)
p.s. Re giving them your slides: they may ask for your slides, but that doesn’t mean the whole PowerPoint. Instead, save it as a PDF of handouts. If you don’t know how to do that, ask in comments.
Next in the series: #16: Getting paid (being businesslike about cash flow)
Karen Nicole Smith says
This is amazing! Thanks for sharing, Dave. I am going to adapt it for consulting too.
As far as sharing slides. I gave a presentation in the spring where a doctor asked for all of my slides and I said no – and shared a few of them. But then I’ve been to other conferences where you get a memory stick full of every slide from every presentation given in the conference package. I have very mixed feelings about that. :|
e-Patient Dave says
Karen Nicole, I’m not saying you shouldn’t share slides – that’s of course up to you. What happened for me is that I went through lots of difficulties sending PPT files through email that were large. (I use tons of graphics.) Then I realized I could save as PDF, as handouts (6 or 9 per page), and the file size was much smaller.
I’ve heard different speakers express different concerns about this. Some are concerned that another person will swipe their content and make a buck off it (or just act like it was their idea). On the other hand, a lot of activists I know put a Creative Commons license on their presentations. CC has various flavors, from wide-open “Do anything you want, including chopping it up and re-using in derivative works” to “re-use as is, with attribution” and more.
Personally, I’ve added a copyright notice to the slide template, with this added line: “Please contact via epatientdave.com before re-using.” That’s because I want my ideas to spread but I’d like to know who’s doing it! :)
I have had companies approach me with an interest in working together – but no clear communication on what our partnership/contract would be. I’d like to know your policy on signing NDA’s before negotiating the contract?
In two cases where this happened to me, the terms of the NDA were rather one-sided in favor of the company, and non-negotiable. When I asked if I could execute both the NDA and the contract at the same time, they told me I was being unreasonable for making this request. What would you do?
e-Patient Dave says
Great question, Andrea. (For those who don’t know, NDA is a Non-Disclosure Agreement – it’s a legal document you sign that says they’re going to tell you some business secrets, so you can do the work they want, and you agree to never tell anyone else.)
Some questions: (Please click the Reply link so this stays as a thread.)
1. Is this for a speaking engagement or consulting/project work? (It sounds like project work.)
2. In my experience, anyone who asks for a one-way promise, and says it’s mandatory and non-negotiable, is “outing” themselves as not being a good partner. You can choose to work for them if you want (money is money), but don’t expect to be treated with any respect.
I’m no expert in this area – hardly anything I do requires that I acquire trade secrets etc from someone. Frankly, I’d rather not have the responsibility. But when I have signed them, here are my thoughts:
1. Ask for a mutual NDA, which says you’ll both be sharing valuable information. An example is here.
2. Read. Every. Word. And if you don’t understand it, don’t sign it. If you need to, ask them to go through it line by line. If they object, it confirms that you’re dealing with a dominator sort of person. Again, you may take the work anyway (money is money), but don’t expect a respectful partnership – you’re just meat, doing what they money people tell you.
And as for the money people: some people really do feel that if they’re the one with the money, they get to dictate all the rules, period. Long ago I had someone hand me a contract over dinner. When I said I’d review it and get back to them, she said (verbatim): “Don’t worry about what it says – just sign it!!” And I mean the double exclamation marks – she was really not happy.
(Ultimately I did review it, and I was happy to sign it. But if THEY consider the terms important enough that they insist on you signing, then YOU need to consider it just as important.)
e-Patient Dave says
p.s. The other thing is that if there’s no clear communication about what the work is, then it can’t possibly be an exchange of promises, which is what a contract is. In that case it’s especially weird to ask for an NDA – is the company nuts, saying “We’re going to show you some secrets, but we’re not sure why”??
And yes, it would be consulting work, but deliverables/project are “yet to be defined.” It just seems like a reasonable request to negotiate and execute the contract at the same time as the NDA.
The push-back I got for this was that both companies need to explore our relationship on a trial basis while I am bound by the terms of the NDA. Both companies tell me that other advisors and companies have no issues signing the NDA immediately without any questions, and it’s just a normal part of building a partnership. I’m left to wonder if I need to lower my expectations?
Did you ever regret not signing an NDA?
e-Patient Dave says
Okay, so this isn’t really a “speaker academy” issue. (It’s “the business of patient engagement” but not public speaking.)
To your reply:
> they say other advisors and companies have no issues
> signing the NDA immediately without any questions
Sure, and a lot of people trust anything. Your response to this is simply “Well, I don’t. Their situation may be different.”
I don’t know the people involved in these companies (nor their track records), so I can’t assert anything about their motives, excellence, etc. But as this series has said, one reason contracts exist is that the future is unpredictable, and without an enforceable agreement, a situation is unmanaged and risky.
The best defense against risk is when you know each other, trust each other, and the stakes aren’t large. BUT, some attorneys would puff up and say “WELL, our knowledge IS high-stakes Very Valuable. That’s why I’m so expensive!” You’re in no position to control this – you can only look at your options, ask questions, and decide on your own.
Another reality I’ve experienced is that some people who require NDAs are pretty much just feeding money to their lawyers without knowing why: some NDAs I’ve seen have been absurd (draconian) and others have just been ridiculously verbose. (Note that the sample one I linked to is only two pages long – a MUTUAL NDA. So a longer or more complex one really needs to justify its existence, IMO.) In other words, some people are doing it “just because other people do it” and don’t really know what they’re doing or why.
Dr. Sands and I were recently offered a contract requiring us to do things for an event, in exchange for NOTHING! No pay, but with firm obligations from us! Turns out they didn’t even know that a contract is an exchange of promises – they were just accustomed to seeing lists of requirements. >slapping my head<
Increasingly, Andrea, I’m thinking if you want the money, go for it – just be aware that you’re promising not to tell anyone anything you learn.
Do you want to black out the company’s name and post a scan of the NDA here? It could be an interesting exercise. If you want, email it to me.
I will send you the NDA from a few months ago since that one is no longer part of an active negotiation. Thanks again for your insight on this!
I find all of this to be super interesting. I executed NDA’s for my previous company all the time – but there was always an active contract negotiation in play. Which is why I’m scratching my head that both of these new startups won’t even discuss the contract until after the NDA.
Ultimately I think a company’s ideas are only as good as the execution. Perhaps this could be expanded into a future blog post as Peter suggested!!
e-Patient Dave says
> both of these start-ups
Welllll, you didn’t SAY they were start-ups. That puts a different spin on things, I think.
In that case you may want to be sure the document says that you’re exempt in cases where you can prove you already thought of it earlier, e.g. in a blog post or tweet or something.
Tobias Gilk says
I work / consult / speak in the realm of radiology safety. As you might imagine, this topic area is fraught with legal liability concerns, and confidentiality is a legal necessity for many of my clients. Even if it’s anticipated as being a one-way street of confidential-information-sharing, I like to have a mutual NDA. In my eyes, this is a good indication of a collaborative working relationship.
Generally speaking, I won’t engage in an agreement for ongoing services unless / until we’ve had a meeting where the ‘dirty laundry’ has been aired. This is practical from my perspective (how do I agree to a scope / fee if we don’t both understand what the nature of the problem(s) is), and – I believe – from the client’s perspective, too (if there are issues that I know of a colleague who can help them better than I can, I want to have the flexibility to suggest a collaboration, or that they work with the colleague, instead).
If the client is anxious to lock-in an agreement, I would recommend agreeing to an initial consult / needs assessment, with the option to proceed beyond that. During that initial consult period, questions like how confidentiality will be maintained can also be worked out.
e-Patient Dave says
Great thoughts, Tobias! A couple of notes –
1. It’s clear that you know what your value is, and can easily point to where that value isn’t being considered properly. I think most patient voices don’t have that savvy, at first, and gain it as time goes by.
2. “How do I agree to a fee if we don’t both understand what the work is?” Perfect.
Your comment about an initial period (if things are rushed) again illustrates what a real partnership looks like, a professional collaboration, vs a dominator / “obeyer” contract.