Fool that I am, I've added AdSense to the "Double Negatives" blog. It would be a moneymaker IF I actually had something to say. But that's right up there with "If we had ham we'd have ham and cheese sandwhiches, if we had cheese."
I'd hoped that some of the other people on my list would like to participate. McGowan seems to be the only one. I'm not sure that they have an intuitive access to posting ... there have been a couple added comment lines, though.
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I'd hoped Ali (daughter) would be able to spend Christmas here. That became impossible so, I hoped that Ali would be able to come in January. That's become impossible. She's new with her job and doesn't want to jeopardize it by asking for some time off. I'd sent her money for air fare. When she offered to send it back, I told her that she should keep it as a Christmas present. Buy some clothes or some furniture for her apartment.
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Candy (wife) has been in a great mood since she got some shots for her back pain. It had been getting progressively worse ... to the point that it was impossible to contemplate going anywhere much beyond grocery shopping. We got an electronic gizmo that has electrodes for her back ... and electronic back massage in twenty minute cycles. We're saving that as we keep the effects of the shots under observation.
In the meantime, my blood sugar level is still elevated. I won't say that it's amusing to watch death creep into our lives but it is at least interesting. I've come to the conclusion that it is not death that I fear so much as the dieing. The process is the scary part.
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Contract Delights
The first draft of the new contract was a lawyers dream ... something that could be litigated for years.
My initial response to the 16 page wonder:
Pursuant to our phone conversation earlier this morning, here are my questions regarding the proposed contract and suggestions for contract modifications (absent my pithy remarks about the Declaration of Independence being only a single page document, 1/3 of which is devoted to signatures).
Page 1 Paragraph 1:
Are we talking about a single PO covering the full 12-month period or individual POs for each of the succeeding months?
If XXXXXX Company considers this a subscription service and we are doing this on the basis of POs, why do we need a 16-page contract? Does XXXXXX Company now require a 16-page agreement when purchasing a subscription from The Wall Street Journal?
Where is/are the PO(s)?
Page 3 Paragraph 6
Regarding Communication – I don’t think these paragraphs complicate the issue enough. I’ll get back to you with proposed modifications so convoluted that they render communication totally impossible.
Page 4 Paragraph 8 (and following pages)
Regarding Confidentiality – pages 14, 15 and 16 represent a separate Confidentiality Agreement. Should there be a conflict between these two Confidentiality agreements, which agreement will XXXXXX Company consider to be the binding agreement? Given that everything I do for XXXXXX Company involves materials obtained in the public domain, is this a moot point? Is it now a requirement in XXXXXX Company legal that all attorneys therein wear both belts and suspenders in order to ensure their pants don’t fall down?
Page 6 Paragraphs 9, 10 and 11
Work Product - Based on our conversation this morning I was left with the impression that XXXXXX Company’s intention is to structure our relationship predicated on a.) I am not an employee of XXXXXX Company and that I am a self employed contractor [all very agreeable]; and b.) that, as a result, I am free to peddle my services around the block [we discussed why this can not and will not happen – but it furthers neither XXXXXX Company nor me to include language defining the agreement as being in any way exclusive] – yet the legal department seems to see it as appropriate to include language that does just that – rendering what I do as part and parcel of an exclusive relationship. Should we ever find ourselves in court [heaven forbid], it would seem that for me to try to maintain that the relationship with XXXXXX Company was exclusive would be as deniable as if I characterized the relationship as non-exclusive based on. Legal gymnastics of this sort would prompt even the most obtuse Solomon to cut the baby in half. If there were ever language included in an agreement that would provide justification for employee status, Paragraphs 9, 10 and 11 would form the basis for making that case – most particularly in light of the public domain nature of the material.
Page 8 Paragraph 14 / Page 9 Paragraph 17
It is absurd for XXXXXX Company to require me to maintain insurances for liability, personal injury and property damage in 14 while at the same time requiring me to hold XXXXXX Company harmless from liability in 17. If XXXXXX Company wants to run my “business”, they should either buy me out and hire me as an employee or underwrite the costs of their requirements. If none of these options represent an agreeable course, then XXXXXX Company should be satisfied to be simply “held harmless”.
I was, of course, requested to tone down the sarcasm so that my comments could be shared with the legal department without starting WWIII. I came up with the following:
Here are my questions and concerns regarding the proposed contract and some suggestions. I hope we can resolve these issues to everyone’s satisfaction in short order. I certainly believe that to be possible.
Page 1 Section 1:
Are we talking about a single Purchase Order (PO) covering the full 12-month period or individual POs for each of the succeeding months or daily POs to cover each successive OPI Report?
If XXXXXX Company considers this a subscription service and we are doing this on the basis of POs, why do we need a 16-page contract? If the OPI Report is, in fact, going to be dealt with as a subscription service, not unlike the Wall Street Journal, wouldn’t it make more sense to base the relationship on Purchase Orders as it is with the other subscription service?
Where is/are the PO(s)?
Page 3 Section 6
Regarding Communication – I believe the more control XXXXXX Company insists on having over how I conduct the internal administrative functions of my business, the more I begin to look like an employee. I believe it would be sufficient to substitute language that says all substantive communication between us will be via certified or registered US Mail.
Page 4 Section 8 (and following pages)
Regarding Confidentiality – pages 14, 15 and 16 represent a separate Confidentiality Agreement. Should there be a conflict between these two Confidentiality agreements, which agreement will XXXXXX Company consider to be the binding agreement? Given that everything I do for XXXXXX Company involves materials obtained in the public domain and I have no access to anything at XXXXXX Company other than the database of public domain materials I maintain for XXXXXX Company, is this a moot point?
Page 6 Sections 9, 10 and 11
Work Product – It is my belief that our collective goal is to structure the relationship between XXXXXX Company and me as being predicated on (a.) I am NOT an employee of XXXXXX Company and that I am a self employed contractor; and (b.) that, as a result, I am free to peddle my services to other companies – yet the this document seems to include language that severely impedes that – rendering what I do as part and parcel of an exclusive relationship. It would seem that for me to try to maintain that my status with XXXXXX Company was exclusive and definable as an employee would be a point as easily made as if I characterized my status as non-exclusive and independent. I believe XXXXXX Company would be confronted by the same dilemma based on the language set forth within these and other sections of the agreement. If the object of this agreement is to make clear that I am an independent contractor who provides a specific service on a business to business basis, I believe this language coupled with language in other sections within the document which appear to speak to an exclusive relationship between XXXXXX Company and me only serve to undermine that premise.
Page 8 Section 14 / Page 9 Section 17
It is counter productive for XXXXXX Company to require me to maintain insurances for liability, personal injury and property damage in Section 14 (for reasons stated in the previous paragraph) while at the same time requiring me to hold XXXXXX Company harmless from liability in Section 17. If XXXXXX Company wants to run my “business”, they should either buy me out or hire me as an employee or directly sustain the costs of their requirements. If none of these options represent an agreeable course, then XXXXXX Company should be satisfied to be simply “held harmless”.
My basic premise here is that I am an independent contractor providing a very specific and specialized service. I maintain that XXXXXX Company secures other similar products and services, such as a subscription to the Wall Street Journal, by means of a simple Purchase Order and without benefit of a 16 page agreement defining how the publishers of the Wall Street Journal should administrate their internal affairs. Though defining the specifics of what that product and service XXXXXX Company expects makes sense in this agreement (or on a Purchase Order for that matter), I believe the more XXXXXX Company defines how I administrate the internal workings of my business, the harder it is to make the case that I am an independent contractor. Given that XXXXXX Company can disengage from the relationship with 15 days notice, for any reason what so ever, without further liability other than to pay for services accepted, I believe we are all far better served by keeping the agreement between us as simple and straightforward as possible. I believe the more demands and restrictions XXXXXX Company imposes in this agreement the more we undermine the premise of independent contractor status and the more we support the case that I am an employee.
In defining what I do with respect to XXXXXX Company as a “subscription service” I believe XXXXXX Company is obligated to deal with me in a manner consistent with its relationship with other “subscription services”. To do otherwise runs the risk of creating issues where none need exist.
The draft response was a nine page wonder that addressed some of the questions I raised. It's an agreement based on the previous versions that we've been using for the last year and a half. If there are no major changes of mind on their side between now and the formal final version is available, I think I might be able to sign their effort.
It will be nice to have a full year contract ... even if there is a cancellation clause in it.
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