CPEU Article: How You Can

How You Can Interpret and Negotiate Contracts To Get What You Want and Deserve

BONNIE TAUB-DIX

MA, RDN, CDN

Until I began a media coaching business for RDs to show them how to get their names in the news and how to work with brands, I never realized how many RDs didn’t regularly rely on contracts to clarify and solidify the terms of their professional relationships� Yet in looking back, I know what that’s about� Years ago, I also believed verbal agreements were good enough� But they’re not� Here’s an example of what happened to me:

I got my first job in dietetics many, many years ago as a clinical dietitian and then went on to become an assistant chief dietitian, with both jobs in major New York City hospitals� Although those were my full-time day jobs, they were just the beginning of my simultaneous explorations in the field of dietetics� Since as a hospital dietitian, my hours started early in the morning and ended later in the afternoon, I spent the rest of my days writing stories for magazines, giving presentations, conducting media interviews and counseling private patients� Our profession was like the Wild West; not many people were dipping into the types of activities I was doing, so since there was no one to learn from, I had to carve my own path� The words “niching down” never crossed my mind�

During that time, I hadn’t even thought about having contracts for my business� For me, in those days, it was just conversations and handshakes that set projects in motion� It wasn’t until years later, when I met my husband, Mitch, that a contract (besides a marriage contract) came into my life� Here’s what happened: I had an offer to consult with a restaurant and re-design its menu to include healthier options� When I gleefully described this unique opportunity to my husband (my lawyer boyfriend at that time), he immediately asked if I had a contract with the restaurant� I was reluctant to have him draw up one of those wordy documents laced with legalese because I didn’t want it to jeopardize my chances to get that job� But eventually, I caved�

As it turned out, when presented with a contract, the restaurant owner had no interest in treating me fairly: the fee he was offering and the time he demanded were not worth the experience� I took a pass on that job and wound up working with a much more prestigious restaurant soon afterward� As my mother always said, “When a door closes, a window opens,” and I’ve believed in that mantra throughout my career�

I did, however, learn an important lesson from that first encounter with a contract� You might think that having a solid contract could limit the jobs that you’re offered or that you might be thought of as a dietitian diva if you’re asking for too much, but it’s more important to consider what you’ll be giving up if you don’t have something in writing� A contract could protect you and your business from being taken advantage of and help you get all that you deserve�

I used to have a love-hate relationship with contracts� Basically, I loved to get them and I hated to read them! Despite the importance of knowing how to interpret contracts and how to adjust these agreements to meet our particular needs, there is very little content addressing this need in the dietitian community� For example, many dietitians don’t realize the importance of having a contract or non-disclosure agreement when hiring interns, virtual assistants or collaborating with other RDs�

We need to start depending on contracts as other professionals do, for the power of protection and to clearly spell out our scope of work and much more�

Knowing how to navigate and negotiate contracts is crucial for RDs, especially when they are working with brands and getting their voices heard across a variety of media platforms� Having my in-house (literally) attorney, I’m comforted in knowing Mitch is more well-versed about the dietetics profession than any lawyer I’ve ever encountered, and, as you’ll see, when choosing an attorney, it’s essential that you choose someone who understands the nuances of your practice� It’s true that contracts can be intimidating since they are filled with terrifying terms that we weren’t taught in school� I have learned to tear apart a contract section-by-section to read between the lines, but I still glaze over and need to get help navigating confusing clauses, like force majeure — especially during a pandemic�

Although I could write a book on this topic, to help you get past a few of your contract anxieties and demystify the typical kind of contract terms that you’re likely to encounter, let’s deconstruct some tricky terms:

PARTIES SIGNING

Contracts often involve dealing with multiple parties� You need to understand who it is that you are contracting with, what each party is responsible for, which party has the legal authority to enter into the contract and which party is responsible to pay you�

TALENT

Entering into a contract in your own name can leave your personal assets exposed to claims that could arise out of a contract� So it might be in your best interest to take advantage of some form of corporate protection� The most common of them is a limited liability corporation (LLC)� The type of corporate entity that’s best for you may vary depending on your state, tax structure and personal circumstances�

TERM OR LENGTH

The length or duration of a contract is not always what it appears to be� Normally, you would think that it runs from the beginning date until the end date that’s stated in the contract� However, you may unknowingly be giving up rights or creating obligations that may extend well beyond those dates which you could have, and possibly should have, been compensated for� You might be asked to extend your contract through words that may say, “through your term and 6 months to follow�” Feel free to cross that language out or modify it to suit your needs regarding the length of use of your materials� You should never be afraid to

make changes to a contract and never hold back from

asking for what you deserve, even if you think they’ll say no�

SCOPE OF WORK

Perhaps this is considered to be the most important element of your agreement because it not only defines what you’ll be doing under the contract but how much you’ll be getting paid for it�

If you’re not very clear about exactly what it is that you will be doing for the client, you may wind up engaged in activities beyond the amount of work you planned on performing�

Keep in mind that this section should be for the activities that you can absolutely guarantee because they are within your control, such as blogs, presentations, newsletter inclusions and social campaigns� If you are doing media interviews, I would reserve those activities for an addendum, or exhibit, to your contract, so that should an opportunity arise for broadcast, then your rates would already be established for these services and there wouldn’t be any further need for negotiations�

COMPENSATION

In order to enforce a contract, you need to demonstrate that both parties exchanged something of “legal value” (which can mean something other than money)� This element addresses the different types of compensation that can support an enforceable contract, as well as exactly how much (total amount) and when (at signing, half upfront, divided into thirds, etc�) and how you’ll be paid (check, direct deposit, products, etc�)�

Here’s where I have to go on a tangent and say that when it comes to compensation: don’t sell yourself (or our profession) short� Keep in mind how much you paid for your

education and your internship, your expertise, your time and your overall value� I, personally, am not in favor of lending my name and likeness in exchange for a product or samples; it’s better to negotiate for cash and then buy whatever products you’d like�

IN PERPETUITY

Unless your contract is incredibly short (i�e� for a specific event, holiday campaign, etc�), the length of your contract may dictate how long you won’t work with other companies� Since there’s nothing that I would agree to do forever, I would delete the words “in perpetuity� ”

FORCE MAJEURE (“MAJOR FORCE”)

This is a clause that relieves a party from certain responsibility under the contract if it is prevented from performing because of circumstances outside of its control (like an act of God, natural catastrophe or even a pandemic)�

CONFIDENTIALITY/NONDISCLOSURE

This language restricts you from revealing anything about the contract, the company that you’re working with, or even what you’re working on, to any unauthorized third parties�

EXCLUSIVITY

This section could determine how limited you might be when you work with a brand, so you need to be really careful about the size of the net being cast when contracts include the other foods or products that you are not going to be working with�

REPRESENTATIONS AND WARRANTIES

These are statements made in a contract that legally bind the party making them� A failure to keep your contract representations and warranties (like the failure to adhere to FTC guidelines) could constitute a breach of the contract and expose you to monetary damages�

INDEMNIFICATION

This is language that requires one party to restore or make the other party whole in the event of a breach� This is a very important provision because it could expose you to personal liability or require that you forfeit fees that you may already have been paid, even though you already did the work�

BREACH

Essentially a contract breach is a “break” in the proper performance of a party, resulting in the shortening of the contract’s length� When the contract is broken, that creates a potential claim by a party for damages (which generally means money)� Therefore, you should look to ensure that you are given prior written notice of any breach, as well as a reasonable opportunity to “cure” or “correct” a breach before the other party can be allowed to commence any legal action against you�

Of course, all of the above clauses will be lengthier in your contracts with lots of “heretofore” and “mutually agreeable” language� Read each word carefully since even simple words like “and” and “or” could make a huge difference in the meaning of a sentence and the scope of your responsibilities�

In summary, perhaps the most important lesson Mitch has taught me when it comes to these agreements is that you should never be afraid to make changes to a contract and never hold back from asking for what you deserve, even if you think they’ll say no … because if you don’t ask, it’s guaranteed that you won’t get what you want!

REFERENCES:

1 Black’s Law Dictionary: thelawdictionary�org/

2 Law�com Legal Dictionary: dictionary�law�com/

To obtain CPEU credit, go to the CPE Library at nedpg�org� The Newsletter Courses area will house the CPEU article and quiz�

Bonnie TaubDix, MA, RDN, CDN, is the award-winning author of Read It Before You Eat It – Taking You from Label to Table, and creator of the website and blog, BetterThanDieting�com� Bonnie is a media personality, media trainer for RDs, spokesperson, motivational speaker, journalist, and corporate and brand consultant� She specializes in helping RDNs get their names in the news and building their businesses�