Don’t Sign that Pre-Nuptial Agreement!
Posted on Tue, Aug 31, 2010
By Jim Hussey, President
I’m not referring to the type of pre-nuptial agreements that two individuals may sign before marrying, but the discreet pre-nuptial agreement that some consultants require their clients to sign as a part of their contracts.
Pre-nuptial agreements between nonprofit organizations and fundraising consultants? You haven’t heard of such a thing? That’s because these consultants do not call such an agreement a pre-nuptial. They often refer to the clause as a form of protection for the consultant’s intellectual property. But in the end, such an agreement has a similar impact as a pre-nuptial.
As a pre-nuptial agreement in a marriage may prevent a divorced spouse from walking away with a ton of cash, these contract clauses often prevent clients from using the formats and copy developed by the consultant should they choose to end the relationship. In other words, the consultant owns the content of the campaigns they’ve developed … the copy, the art, the concept … not the client.
I’ve seen this situation on several occasions while working for a new client, receiving legal notices from the previous consultants informing me that the client is not allowed to use control packages that they developed. On one occasion, I was even informed that we could not reference the statistics from previous mailings. In such situations, the client must often start from scratch.
Are such agreements legal? Yes. Is it the best arrangement for the nonprofit organization? No. While these firms argue that they are merely protecting their strategies and intellectual property, I believe it is often used as a method to intimidate a client from changing to another consultant.
As a client, you are paying your consultant to develop campaigns on your behalf, and your organization should own the resulting product. So before you sign that contract, be sure to carefully read the fine print.
