Thursday, October 31, 2024

A Nest of Vipers: Navigating TTRPG Contracts and Partnerships

Back in 2022, I along with 30 collaborators and contributors ran a Kickstarter campaign (Hull Breach Vol. 1) which raised nearly half a million dollars. In 2023, I successfully fulfilled that project to backers and launched the newly printed books for retail sale. In 2024, I agonizingly extracted myself from several tumultuous business relationships accumulated over the course of said project—costing me thousands of dollars and years off my life.

In this blog post, I hope to share everything I learned from my misfortunes and triumphs in forming and breaking TTRPG industry partnerships—equipping you (the intrepid indie designer or curious hobbyist) with a foundation of protective business acumen. 

I will cover everything from scouting for red flags, to evaluating and modifying contracts, to resolving malfeasance if things go south. While I am not a lawyer, I'll examine real-world situations, real contracts, and real corporations.

In other words: I got screwed so you don't have to.

While some concepts in this resource may incidentally apply to creative partnerships, it's primarily geared toward logistics, administrative, and other business-y relationships—the fly-by-night startups, aspiring entrepreneurs and towering megacorporations of the TTRPG industrial world. 

If you're considering signing up with a new retail partner, fulfillment center, marketing firm or the like: this blog post is for you.

Table of Contents

Disclaimers and Warnings

A NOTE FOR IMPATIENT READERS:

If you're disinterested to hear the context of my tales of woe, I would recommend skipping below to the "Risk Survival Onion" section. There begins the meat of applicable advice and takeaways.

A NOTE FOR NON-LAWYERS (AND LAWYERS UP TO NO GOOD):

I am not a lawyer. I am not your lawyer. I am not giving and can not give you legal advice.

AN IMPORTANT NOTE FOR EVERYONE:

This post is NOT a name-and-shame takedown piece. The primary goal is a purely constructive one, to educate and protect readers from potential bad deals (or at least set expectations for real-world mediocrity). 

While specific companies (some upstanding and some otherwise) will be named in this piece for the exclusive sake of context and authenticity, others will be anonymized, and some details may be obfuscated to protect identities and privileged information. Sincerely, please do not speculate on who might be who and under no circumstances start any witch hunts.

I am not asserting any wrongdoing (criminal or otherwise) on the part of any company named or unnamed in this post.


Amuse Bouche: The Confounding Case of GamesQuest


In late 2021/early 2022 as I prepared to launch the most ambitious, costly and risky endeavor of my life (Hull Breach Vol. 1), I was panicking about European distribution. EU and UK tax rules had recently changed to a much higher and more complex standard for foreign businesses, and the ensuing bureaucratic hellstorm threatened to topple the precarious house of cards that was my professional life.

In my desperation, I searched for a company that could provide an easier and cheaper solution than registering for VAT collection in potentially dozens of European countries. Frenzied weeks of searching produced only dubious, conflicting online articles, arcane bureaucratic documents and more distress.

At last, a savior appeared. During my search for potential distribution partners who could handle EU and UK fulfillment, I had a virtual sit-down meeting with Nigel Matthews, the CEO of UK-based and self-identified games oriented logistics company GamesQuest (aka ShipQuest). Nigel revealed that GamesQuest could handle VAT payments and guidance on my behalf, no registration necessary. Their pricing seemed reasonable, and Nigel spoke very highly of his company. 

Finally, a simple solution. I signed on.

A CRITICAL ASIDE:

If you're a backer or potential backer of a project being fulfilled by GamesQuest, DO NOT UNDER ANY CIRCUMSTANCES read this section and then go bother creators running that project. My issues with GamesQuest did not ultimately affect backers (at least from their perspective), and I'm sure things will go fine for you under the watchful eyes of your project's creators.

Trouble in Paradise


The first red flag which I noted, but ignored out of hope and desperation, occurred during the very first meeting with Nigel. Nigel, unprompted, made reference to GamesQuest's evidently somewhat tarnished reputation, and (as best I recall) proceeded to defend their honor by blaming both prior customers' (publishers') communication skills and backer expectations for the hubbub. I found this odd and slightly troubling, but let it slide. Major mistake on my part.


Over the next two years, the following situations and patterns developed:

LACK OF DIRECTION

GamesQuest took over a year to assign me a proper customer service contact and put me through an onboarding process, having previously bounced my questions between seemingly random and often confused employees.  

When I ultimately confronted their CEO with these issues, he explained that I had originally been assigned to an employee who left the company, and they had forgotten to reassign me a contact in the mix-up. Whoops.

THE RUG PULL

During one call with their CEO to address unrelated issues, I was shocked to be informed that their Germany-based warehouse was no longer a viable option for EU fulfillment. Nearly one thousand books had already been delivered to that warehouse, with thousands more due in weeks. Though the VAT-related change had evidently gone into effect months earlier, no one at GamesQuest had thought to inform me.

This forced a total redesign of my fulfillment plans, and added significant administrative overhead to an already frantic period. To CEO Nigel's credit, he did arrange to have my inventory already in Germany transported to their UK warehouse at GamesQuest's expense—though this easily could have been avoided through basic communication.

LABYRINTHINE PROCESSES

Straight answers and clear directives were often nowhere to be found. I was frequently forced to research solutions on my own, or spend dozens of emails extracting single kernels of information.

I received inapplicable and out-of-date forms required to arrange freight, often leaving me guessing at which convoluted hoops I should actually jump through. 

It took GamesQuest 9 months to send me the correct form for their VAT agency services, resisting VAT-related questions and treating me as if I would handle VAT myself all the while. 

I spent dozens if not hundreds of hours formatting and reformatting backer data exports with little support to meet GamesQuest's bespoke requirements for spreadsheet construction. Common export functions from the industry-standard pledge manager (Backerkit) evidently did not mesh with their system, including the one labeled "for GamesQuest."

PACKAGING PROBLEMS

Shortly before fulfillment, I arranged for test boxes to be shipped to my home. The first package from GamesQuest arrived in a wafer-thin box which had (inevitably) taken a significant beating. Despite their insistence that this is standard packaging and not a problem, I proceeded of my own volition to pay, out of pocket, for several iterations of new tests shipments—along with exacting packaging instructions formulated by me. 

GamesQuest's second recommended box was far too large, resulting in books being free to slide perilously inside the box. Another was a custom box manufactured to the wrong dimensions (by another company). I ended up paying for all shipments to be double-boxed, to prevent any possible damage. 

This arduous process spanned weeks, delayed fulfillment and added unnecessary costs.

DEFLECTION OF BLAME

When things went wrong, GamesQuest ardently refused to accept responsibility (with one exception, see The Rug Pull). At one point during production, several backers expressed concern that GamesQuest would be fulfilling the project in Europe—citing issues allegedly caused by GamesQuest on a different and high-profile Kickstarter.

When I brought these concerns to GamesQuest's CEO and asked what they were doing to make sure nothing like that happened on my project, he answered to the effect of: nothing; you are the difference; your diligence will ensure it doesn't happen to you. In other words, it seemed GamesQuest expected me to catch and fix their mistakes myself.

GamesQuest ultimately blamed the other project's publishers for the publicized issues, though I was told by people familiar with the situation that this could not be further from the truth. I have no evidence to support either claim and make no assertions here.

CLOSEOUT NIGHTMARE

When fulfillment was all said and done, I arranged for GamesQuest's remaining inventory to be shipped back to my retail warehouse in the states. I filled out some forms, following my GamesQuest contact's guidance on customs matters, and tried to ease back into a deadline-free life. I even paid extra to have my shipment insured, to cover all my bases.

Then the problems began. My receiving warehouse notified me of some concerning customs messages, which I forwarded on to GamesQuest. I was told I'd need to pay a whopping $750 fee to clear customs—which GamesQuest had told me would not be the case, and was twice the cost to ship and insure the package. Weeks and many frenzied email exchanges later, I found out that GamesQuest had been unable to resolve the issue and that my package was returned to the UK (thankfully at no cost to me).

I was then forced to pay more to ship the package across the Atlantic for the third time. Of course, a significant portion of the shipment arrived damaged from (presumably) all the unnecessary handling, and GamesQuest was only able to recoup a small fraction of the value that I had insured. All told, I was out around $2000 between the repeat shipping fees and value of damaged books.


And who did GamesQuest blame this escapade for? Me, of course. 

They blamed me for treating their advice that no customs fee would be due as reliable.


What Did I Learn From GamesQuest?


And for that matter, why should you care about this story? I write this all in such depth not to warn about GamesQuest specifically, but as a cautionary tale of what can go wrong with any fulfillment partnership. This isn't about revenge, it's about knowledge.

Perhaps more than anything else, I learned about risk. I learned the give and take of commitment, and in hindsight see all the opportunities where I might have made other choices. Until a final service is rendered or a bill is paid, you're almost never in too deep, and things can always get worse.

Well then, how do you make sure a saga like the above never happens to you? I'll tell you, in 5 parts:

The Risk Survival Onion (Business Edition)


Any time you enter into a business partnership, you expose yourself to risk. You could be ripped off. You could be ghosted. You could be screwed over a thousand different ways, from incompetence to maliciousness to mere bad luck.

Unfortunately, you need to take on some risk to get anything done.

I introduce to you: a model for understanding and navigating risk in business partnerships, styled after a surreal, onion-based, but evidently real power point slide from a US military-industrial presentation.
Why do we crave the onion? What does it all mean?

What it doesn't mean is to isolate yourself from all human beings and call it good. Each layer is not necessarily an end to be avoided at all costs, but rather a turning point at which you should evaluate the benefits and risk of proceeding further into a potentially tear-provoking core.

Let's peel back these layers then, shall we?

LAYER 1, Don't Rely on People:


Sometimes whether or not to seek help with a given aspect of your TTRPG work, be it printing, shipping, sales, or otherwise, is a meaningful choice. Sometimes it isn't. If you have the time and physical ability, you might be able to hand ship 100 zines for your crowdfunding project. You probably can't ship 100,000.

The crux of this layer is: I want you to look beyond the cost/benefit analysis of merely expenses for services rendered. If the worst that could go wrong, does go wrong, would you still want to pay someone to do the thing? Could you overcome your own anxieties over figuring out how to do the thing on your own? In my experience, the fear of going it alone is often worse than the process of actually doing it.

Again, you probably will and should work with people! I do. Retail partners will reach customer bases you couldn't otherwise, warehouses will expand your inventory capacity beyond your living room, marketing people can sometimes be tolerated (for brief periods). 

Just try to factor in the risk of what comes next, that's all.

Additional resources for Layer 1 (some of my past posts on getting started as an RPG professional):

When I say "shady," I don't mean just unreliable, but also unfamiliar or unvetted—shaded by uncertainty. Before you sign anything, get to know these companies like you would a prospective new home. Inspect the water pressure, the crown molding, the online reputation. You'll be living with these people for potentially years.

This is the time to hunt for red flags. Read the contract. Read it again. Make them jump through hoops for you, see how far they'll leap. Schedule meetings with every boss and employees you might ever deal with directly. 

GET AT LEAST THREE GOLD-PLATED, ZERO-HESITATION, UNADULTERATED VOUCHES FROM OTHER CREATORS! 

Any vouch must come from someone who has worked with these people throughout an entire project (or two years if not applicable). A single bad reference is a deal breaker, and "I just started working with them but it's going fine so far" is not a vouch. Ask for details, anecdotes, trends. Be certain.

Additional resources for Layer 2 (from this article):

LAYER 3, Don't Get Caught Without a Backup Plan:


You're tangled in the throes of a project, juggling 60 tasks at once, and you surrender to riding out a bad partnership because you're too stressed to find someone else to do it. An all too common crisis. The time to prepare plans B, C and D was at the beginning of your project, not the end.

You'll want at least two thoroughly vetted and priced-out backups for any critical infrastructure needed to complete your project (a printer, a warehouse, etc.). Court those companies as far as they'll let you without actually signing a contract. Keep in touch and up-to-date with periodical quotes, be prepared to pull the trigger for a switch within weeks (assuming your prior contract allows). 

At least one of your backups should be a large, established company who isn't likely to go under any time soon. Ask me how I learned.

Additional article resources for Layer 3 (from this article):
  • See Layer 2

LAYER 4, Don't Be Ripped Off:


The toughest layer of them all. Getting scammed or merely screwed over isn't on you, but you can take steps to protect yourself from incompetence and bad intent.

Stay vigilant for red flags long after signing. Periodically google and ask around about your partner. Question your partner with the how's, the why's, the when's.

Stay on top of everything. Even when things are going well, bend over backwards to know what's going on with your project at all times. Keep records, track dates, measure promises against reality. Overexplain every request as if they don't know how to do their jobs (but don't be rude about it).

Additional article resources for Layer 4 (from this article):

LAYER 5, Don't Let Them Get Away With It:


Eventually, something is probably going to go wrong with your project (however minor). Whether it's enough to escalate or let slide is a major decision which can impact the rest of your project. You could damage your relationship with your partner. You could get sued. Tread carefully at this step. Is it worth it?

Before anything goes wrong, and even more so afterward, take proactive measures to prepare for (defensive) war. Get everything in writing, make them make commitments, choose your own words carefully.

On the precipice of escalation, give yourself at least a day to reflect if possible. Let the frustration or panic subside.

If you do pull the trigger, start with the least explosive options first. Obviously, ask them to fix it before anything else. Then consider an email to upper management. Then upper-upper management. Is a public service announcement in order? Exhaust all other options before going nuclear—the dreaded lawsuit.

Additional article resources for Layer 5 (from this article):

LAYER 6 (BONUS LAYER), Don't Lose Hope:


This is the one and only mandatory step. Getting screwed over hurts, bad. You might be living with the burden of a soured relationship and unpaid debts for months or years. But you can't let it get you down, that's how they win.

Unfortunately, I don't have amazing advice here. I've found myself particularly susceptible to emotional distress from others' failings and injustices. I take it personally, but you shouldn't. I'm writing this article in part as closure to years burdened by anger and worry from bad partnerships. I'm not sure if 10,000 word blog posts work for everybody, but you should try to take something constructive away from things—even if it's just the determination to warn 1 other potential victim away from a bad situation.
___

Does that all sound overwhelming? Impossible, maybe? It probably is. You can't protect yourself from all risk, you can't be perfectly proactive all the time. 

Each layer (beside the last) is optional. How much effort to expend on any given means of defense is up to you.

Learning to Fear the TTRPG "Industry"


What I've said so far probably sounds like it could apply to any field, and it might. But it comes from a place of experience with the uniquely unprofessional TTRPG profession.

TTRPGs are what a suit might call a "nascent industry." Despite its origins in the 70s, it feels to me that the hobby only began to mature into a profession in recent years—with artistic theory, production values and institutional expertise trickling into published works over the last decade or two. Now, you don't need to agree with that assessment, and I only state it to emphasize this fact:

(Almost) no one knows what they're doing in the TTRPG world.

Therein, the catch. You want to help support fellow hobbyists-turned-jobbyists, but you must also be wary of them.

Pros and Cons: Corporations Large and Small


Now we turn to the alternative: the monolithic, implacable Amazon dot coms of the wider retail world. I'm talking hundreds of employees and up. Surely these people know how to do their jobs. Right?

A few example companies you may have heard of (many of which I've had only positive experiences with) for sizing context:
  • Kickstarter with its broad scope and billions in crowdfunding raised feels facelessly Large, while Backerkit's more approachable team and up-and-coming crowdfunding effort leans Small. Both are on the cusp, but at the moment Backerkit certainly cares more about catering to individual creators.
  • DriveThruRPG, the de facto RPG marketplace for PDFs and Print on Demand, is likewise a Small business reaching upward.
  • Exalted Funeral, the largest(?) indie-focused RPG retailer has only a few employees to my knowledge. Small.
  • GamesQuest? Small, but with aspirationally corporate airs.
  • Direct Link, an international subsidiary of the Swedish and Danish national postal services—like DHL to Germany. Large.

NOTE: The following characteristics are BROAD GENERALITIES! You'll find hapless international conglomerates and sharkishly sharp solo operators. Read and apply with discretion.

The Corporations


PROS (non-TTRPG specific):
  • More experienced: more efficient procedures, better training, more institutional knowledge.
  • More resources, humans included, and often broader services.
  • Predictabl(y corporate).
  • Less likely to implode.
  • Economies of scale. Cheaper.

CONS (non-TTRPG specific):
  • Will do what you pay them for. Nothing more, sometimes a bit less.
  • Less willing to cut deals and bend rules (modify contracts).
  • Less succeptible to legal or PR pressure.
  • More litigious. Much more litigious. Don't press your luck.

The "Little Guys"


PROS (TTRPG industry):
  • More contractual flexibility, often less airtight contracts to begin with (sometimes a double-edged sword).
  • Familiarity with TTRPGs. Depending upon the service, this is probably less valuable than you think.
  • Concerned about their reputation in the hobby. Vulnerable to public blowback.
  • Opportunities to establish meaningful relationships. "Networking" as some might say.
  • More likely to go above and beyond for you.

CONS (TTRPG industry):
  • More prone to scummy-owner-syndrome. Expect mild to heavy fits of incompetency and enhanced daring when screwing you over.
  • Wild unpredictability. One person gets sick, you may be in the lurch for a week. Also, see previous bullet point.
  • May declare bankruptcy at any moment.
  • Often more expensive services, but not always.

Vibe Detection


Trust your gut when evaluating a potential partner. Intangibles like communication style and tone hint at eventual displays of character and competence. Is a company operating out of a basement unironically using words like "synergy?" That might inspire some concern.

Treat the pre-contract vetting process as a job interview, for the other party. Meet with every person or persons you'll be interacting with on a regular basis, whether the owner-operator or customer reps. Their whims and personality are the gate to your project's needs. Ask as many questions as they'll tolerate, gauging their responses:
  • Are your contact(s) blunt or placating? Confident or full of reservations?
  • Are they patient? If you send them multiple questions, do they address each one (and in full)?
  • How long do they take to respond?

If something feels off to you, it probably is.



On Contract Law


(This is Legal Advice) [Just Kidding] {Unless?}


DISCLAIMER: The above is a joke. Again: I am not a lawyer. I am not your lawyer. I am not giving and can not give you legal advice.

In this section, I will attempt to relay the lay savvy I've acquired through contractual headaches and disputes—the red flags, the wiggle room, the sometimes shockingly unbalanced standards. A lawyer would provide better, more reliable legal insights, but I can at least tell you which contractual clauses have actually come up for me.

CAVEAT: Some of the following contractual terms came from totally fine companies that I've had only good dealings with. Some contracts I signed, some I didn't. Certain clauses are here for illustrative purposes, not all are red flags.

What is a Contract?


The contract doesn't begin and end at the formal, signed contract, it spills out into your emails, meetings and other communications. In other words, a contract is anything anyone agrees to do for you, or vice versa. But you have to be able to prove it.

Get any and all commitments in writing (email), avoid audio conversations when possible. Tape your audio conversations if able, conforming to local legalities around consent to record. If you do attend an audio or in-person meeting, be sure to confirm everything said during that meeting in writing afterward. 

These records will not only help with a distantly hypothetical legal case, but more relevantly serve as leverage in private (or public) disputes and aid your future efforts to reconstruct what happened when. 

The Trap of Good Faith


Contractual law predicates itself upon the assumption of good faith. The conundrum is, some degree of bad faith almost inevitably enters into the mix during any contractual dispute. Over an issue catalyzed by a genuine mistake (or rank incompetence), Small companies may exacerbate things bad-faithedly over pride or fear—while Large companies will knowingly twist the legal knife to eliminate repercussions.

All that to say, you should read contracts in the harshest light possible. How could a bad-faith operator weaponize this against me? What's the worst case scenario?

Evaluating Contracts


Formal contracts are typically organized into discrete, numbered clauses. When facing an imposing new document, take things a single clause at a time—give each due consideration. Sometimes very relevant details can be buried under seemingly innocuous jargon.


Use this rubric as a starting point for evaluating each contractual clause:
  1. Why is this clause in the contract?
  2. When specifically might this clause come up in practice?
  3. What language seems open to interpretation?
  4. How could this clause be used against me?
  5. What details and obligations (costs, deadlines, etc.) does this clause FAIL to cover?
  6. Does this contract accurately reflect agreements previously made with the other party?*
  7. Does this seem legit (within reasonable industry norms)?

*Be aware that the contract you sign may supersede any past discussions you may have had with a business partner. If they've previously committed to provide some service or benefit not covered by the contract, make sure it gets in there.

When using the rubric, keep your mind open for any other questions that crop up. Puzzling over a new hypothetical? Add it to the rubric.

BONUS NOTE!!!: Having multiple backup plans (see Risk Onion, Layer 3) pulls double duty here. Receiving multiple contracts for like services provides handy points of comparison, particularly for evaluating industry standards. Sometimes unfavorable terms are what they are industry-wide, sometimes a concerning clause is a true outlier. It's good to know either way.

Modifying Contracts


Good news! You can modify contracts. By printer and pen or your PDF editor of choice, you're free to strike through terms, add new ones, and send back your proposal. Whether the other party accepts those terms is another matter.

By and large, Small companies are much more likely to compromise on contractual modifications. Large companies rarely permit any modification of terms, but you can still try. In any case, you shouldn't go off and revise every clause to suit your needs: identify key issues of most concern and pick your battles in negotiation. 

Be prepared to present reasonable and innocuous cause for any changes. 

I typically (attempt to) modify 1-2 terms on most contracts I sign, though recent experience tells me I should bump those numbers up a bit.

What kind of terms might you look for to change?:

1. Confusing or Vague Language


The big one. Often, whether intentionally or by lack of foresight, clauses cast an overly broad semantic net (examples to follow). If the worst case interpretation concerns you, it's worth tightening up the language.

2. Lack of Clear Service Obligations


Contracts provided by a business are usually concerned primarily with what they want from you, the client. They'll cover terms of payment, fees and penalties for going outside those terms, and as maximally mitigated legal liabilities as they can get away with (or more). 

What they don't always cover is what they're actually supposed to do for you! In an ideal world, you want their obligations, and penalties for not meeting them, spelled out just as thoroughly as yours. You might not (and probably will not) get that, but try to bridge the gap as much as you can.

3. Unfavorable Terms 


Sometimes, clauses present simply bad terms. They might require payment within too tight a timeframe, payouts in too long a timeframe, worse-than-usual revenue splits, etc. Negotiations of this manner extend beyond mere tweaking of legal technicalities and necessarily modify the main points of the agreement, and are consequentially a matter of bargaining power more than savvy/caution. 

If you find these terms both untenable and immutable, you may need to take your business elsewhere.

4. Irrelevant Terms


Sometimes you'll come across clauses in a contract that clearly don't apply to your situation—in which case, your contract may be clumsily adopted from some other purpose. Cut these terms where possible to avoid future confusion and headache.

___

It's worth thinking through proposed changes even if you're confident the other party will reject them, so you have an eye toward points of vulnerability.

Real Example Clauses


Let's move from the hypothetical into the applied. Here I'll present several example clauses pulled from actual contracts I've come across in my 4-ish years working in TTRPGs.

CLAUSE 1, DANGEROUSLY VAGUE LANGUAGE:


3. Non-Solicitation. CUSTOMER agrees to not solicit or act in a way that would cause current customers, employees or contractors of AGENT to end or alter their relationship with AGENT. This includes not soliciting them for work outside the scope of AGENT projects or other activities that would not be in the best interest of AGENT. CUSTOMER agrees that this Non-Solicitation covenant shall survive termination of this Agreement for a period of twelve (12) months.

The Context: 


A sales agreement with a retailer/distributor (the "AGENT").

The Problem: 


Do you spot the problem? Well...

This could mean absolutely anything and everything! 

The fact that I (as publisher), too advertise and sell my own books, could mean that I'd be soliciting customers to act against the best interest of the Distributor (i.e. buy directly from me instead of them). 

If I ever criticized this company publicly, that also might cause customers to end or alter their relationship with the Distributor. In that sense, this sneakily acts as a very broad NDA.

Another problem is the proviso for employees, and moreso contractors. The indie TTRPG world is a small and incestuous one: there are only so many editors, graphic designers, etc. to go around. Why would I want to sign an agreement that limits my ability to hire people for future projects? What does any of this have to do with retail sales?

The Solution:


I did not in fact want to sign such an agreement. I cut the "customers" and "contractors" portion of this clause to mitigate my risk, a fact which I became very thankful for during a later dispute.

Stalwart, like a Bison.

CLAUSE 2, LACK OF CLEAR OBLIGATIONS:


6. Cancelation. CUSTOMER or AGENT may cancel this Agreement for any reason with ninety (90 day) notice. Upon cancelation, CUSTOMER shall be provided with an invoice for return shipping of their Products. CUSTOMER agrees to pre-pay the invoice in full prior to AGENT initiating return delivery of the Products. Any Products for which return shipping is not paid after fourteen (14) days, shall become the sole property of AGENT who shall be free to sell any remaining Products without compensation to CUSTOMER.

The Context: 


A sales agreement with a retailer/distributor (the "AGENT").

The Problem: 


At first glance, this may seem fairly reasonable. Advance notice for contract termination, closeout invoices billed upfront, and even right to seize property for unpaid debts are all fairly standard. The provision for seizing property within 14 days is both tightly timed and needlessly aggressive (given no actual service has gone unpaid for beyond nominal warehousing costs), but that's not the real problem.

The real problem is that this clause (and the rest of the contract) fails to cover the Distributor's obligations and limits in returning goods. 

How quickly do they need to provide an invoice upon cancelation? How quickly do they need to ship the products upon invoice payment? At what rates will I be charged, and exactly which services are covered (e.g. handling, etc.) by that quote for "return shipping?" What happens to the Distributor if they fail to meet those obligations?

The Solution: 


To my later dismay, I missed this one.

It was my understanding, and I think it would be any other reasonable person's understanding, that "return shipping" would comprise mere shipping fees (that is, actual costs charged by shipping carriers). Perhaps packaging at cost or other minor expenses could sneak in there, but these aren't significant factors at the volumes applicable.

Much to my surprise, the return shipping invoice I received was mysteriously about SIX times the cost by weight of shipping the products to them in the first place. And that math includes packaging and handling!

When I requested an itemized invoice and quotes/receipts from carriers, my requests were rejected. Who knows what they charged me for. Never put yourself in this position. 

Of all the terms you want ironclad and upfront, it's the escape clause!

CLAUSE 3, JUST PLAIN BAD TERMS:


15. Payment. AGENT agrees to pay CUSTOMER the commission payment on a quarterly basis where any sales from January 1 to March 30 shall be paid on or before June 30 of the current year and any sales from April 1 to June 30 shall be paid on or before September 30 of the current year and any sales from July 1 to September 30 shall be paid on or before December 31 of the current year and any sales from October 1 to December 31 shall be paid on or before March 30 of the following year.


The Context: 


A sales agreement with a retailer/distributor (the "AGENT").

The Problem:


These are terrible terms for consignment sales payouts. Without delving too deep into the nature of consignment deals, let me explain a couple basics:

In consignment, the distributor takes temporary possession of the publisher's books, and periodically pays out a cut any sales they make from that inventory. They may pay out on the demand of the publisher, or more typically once per month or financial quarter. Almost all consignment deals give the distributor some wiggle room after the designated sales period to actually pay—typically a week or two.

No consignment business I have ever encountered, other than these people, offer payouts NINETY DAYS after a quarter ends. It's beyond absurd.

The Solution:


I was dumb and fell into the trap of good faith. "On or before," right? Surely they won't pay even later than that, every single time. Surely I won't have to wait over 6 months from a given sale to see profit. Right?

Wrong. I accepted this as a quirk of what would be an otherwise fruitful relationship. It was not and I should not have. Familiarize yourself with and stick to industry norms. 

An Aside: Corporations are Evil!


To a layperson unfamiliar with contracts, business terms can seem outrageously unfair for a small business client. And they are. Unfortunately, some of these unfair terms are totally standard and completely unavoidable—the cost of doing business.

Fundamentally, corporations are unwilling to accept any liability for their own actions. Their contracts are written, and indeed standard commercial law is written, to shield corporations from the consequences of their actions. This means they might be able to get away with catastrophic fulfillment errors that ruin you financially.

Likewise, corporations want complete latitude to charge whatever they want and do whatever they want. They'll pass every cost, even ones they failed to warn you about, onto you. They'll exercise their authority at their convenience and to your detriment whenever possible.

Corporations, particularly when it comes to logistics, view you a problem—not a customer.

This brings us to...

Clause[s] 4, LEGAL TERROR MEDLEY:


31. Cost Updates. The price agreed in the Confirmation Of Order form shall be based upon information available to the Agent at the date of the Order. If between that date and the Service is performed and/or the Deliverables are delivered there shall be an increase either directly or indirectly to the cost of the Service the Agent shall have the right to increase the agreed price to take into account the increased costs and the Customer must pay the increased price in full as if it were the price agreed in the Order or Confirmation of Order.

___

20. Limitations of liability.
(a) Exclusions. Neither party shall under any circumstances whatever be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
(i) any loss of profit, sales, revenue, or business;
(ii) loss of anticipated savings;
(iii) loss of or damage to goodwill;
(iv) loss of agreements or contacts;
(v) loss of use or corruption of software, data or information; or
(vi) any loss arising out of the lawful termination of this agreement or any decision not to renew its term;

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8. Agent Discretion. The Agent reserves the right to reject any shipment(s), at any time, in its sole discretion.


The Context: 


Myriad fulfillment/logistics contracts.

The Problem:


The first clause effectively says that the fulfillment partner can change their rates whenever they want for practically any reason they choose, and you'll have to pay any increases without warning and even retroactively. Does the CEO want to give themselves a raise and pass the costs onto you? According to this, they probably can. This is insane, it's also how these businesses typically operate.

The second clause covers all the ways in which the fulfillment partner sheds responsibility for the consequences of their actions. They can screw you over pretty much any way they want without legal consequence (barring perhaps the mere value of product), should you sign.

The third clause is a joke. Why would they need to reject your packages? When might this come up? Who knows, go fuck yourself.

The Solution: 


Given no company is likely to remove terms such as these from any contract, the best you can do is familiarize yourself with contractual norms. Get yourself in the right frame of mind to deal with the corporate world.

CLAUSE 5, LEGAL FEES:


5.3. Should any legal action, arbitration or proceeding be instituted to recover unpaid fees, the prevailing party shall be entitled to recover its actual legal fees and cost, and any collection agency costs.

The Context: 


A fulfillment/logistics contract.

The Problem: 


Almost every contract deals with the matter of legal fees should someone sue in one of two ways.

  1. Both parties pay their own respective legal fees, no matter the outcome of a suit.
  2. The losing party pays the winning party's legal fees.

The first option is VASTLY more desirable as a small business, as you get to do the math against potential winnings and choose just how much you might be willing to spend on a given lawsuit.

The second option (chosen by this particular contract) is a thinly veiled corporate threat. It says: "we have the resources to win whatever suit you bring against us, and when we do, you will go bankrupt paying our legal department's exorbitant fees." You never know what's going to happen in court, no matter how apparently strong your case may be. No indie RPG developer I've ever met has the resources to risk a potential 6 or 7-figure bill for legal fees.

The Solution: 


In short, either avoid working with any company with a clause like this one, or accept that you'll never be able to realistically sue them. If you choose the latter and abandon legal recourse, you lose substantial bargaining power and operate at the whims of your partner.

___

Are you scared? Are you perhaps put off the entire idea of ever doing business with anyone? 

Keep in mind I'm fresh off the completion and retail launch of a large, complex and intensely stressful project—during which I developed contractual disputes with entities wielding far greater resources than me. I am presently of the mind to be more cautious than when I started.

Allow me to recount a dispute with one such entity:

Direct Link Worldwide: A Tale of Two Contracts


In 2022, on behalf of my TTRPG publishing company Anodyne Printware LLC, I contracted with Direct Link Worldwide to fulfill my Kickstarter project Hull Breach Vol. 1 in the US and non-European international regions. The contract I signed covered primarily my consent to a credit check and basic terms of payment to Direct Link.

In late 2023, during fulfillment of said project, a Direct Link employee notified me in writing that that due to their own clerical mistake, several dozen books in their care had been shipped erroneously.

Seeking Reimbursement


When I sought reimbursement for the loss of my products, another Direct Link employee claimed in writing that my claim was not made in a timely manner (even though my claim was made within hours of my being informed of the loss), and that in any event the loss was somehow an "act of god" for which Direct Link was not responsible. 

I was informed in the same communication that in addition, a contract I had allegedly agreed to prevented recovery of my claim in the amount requested.

The Second Contract


After I asked Direct Link to explain the factual basis for its defenses to paying my loss, Direct Link representatives were unable to produce a signed copy of or any evidence to support their claim that I had agreed to this newly-surfaced contract. 

I had in fact never agreed to the terms in the document, or been presented with it, or been in any way made aware of its existence, prior to Direct Link's late 2023 assertions that I was bound by its terms (after my claim).

Management Response


In discussion with a senior manager in Direct Link's finance department, Direct Link proposed that I was entitled to the costs of remanufacturing the lost goods. In an attempt to resolve the dispute, I consented to accept remanufacturing costs as a basis for reimbursement, and provided a quote for those costs. I received no response to my quote. 

When I followed up about receiving compensation for my losses, a Direct Link manager informed me that they would be charging me interest on bill(s) that I had already paid in full and on time.

I later met with Direct Link's managing director of Americas, who informed me that he would be looking into these issues, and additionally agreed that Direct Link had proposed to pay remanufacturing costs. Beyond a single email to inform me that he was traveling and unable to address this manner within the timeframe he had originally proposed, I never heard from this manager again despite repeated attempts to contact him.

(Lack of) Resolution


To date, I have not been paid or in any way compensated for the loss of my product which was the explicitly admitted fault of a Direct Link employee.

Consider War, or: So You've Been Breached


When a company refuses to pay a debt, provide paid-for services or otherwise fulfill contractual obligations, you're left with two options: do you escalate, or do you eat the loss?
Each means of escalation comes with some risk, and any will very possibly damage if not destroy your relationship with the other party. Consider whether you ever want to work with these people again.

If you do escalate, be prepared for the other party to shift into war footing. If they weren't already, they will start treating you as a nuisance or threat. It's best to hold off any escalation until the last possible moment, ensuring as many assets as possible are out of the other party's reach. If you're up against a financial wall, waiting may of course not be an option.

BEFORE ESCALATION, RE-READ YOUR CONTRACT!

A contract is an angle of attack, for both sides. When the situation threatens to get rough, double-check your contract for hazards and vulnerabilities. Play openings to your advantage, beware potential traps—particularly when considering making threats or accusations.

ESCALATION PLANS A-Z


Plan A (Pre-Escalation), Talk to Them:


Before anything else, try requesting resolution with your usual contacts in a calm and cordial manner. In other words, be a normal person. The rest of this section assumes that you've already brought all issues to the other party's attention and they've refused or failed to provide adequate restitution in a timely manner.

Plan B, Call the Manager: 


Going above the heads of your direct contacts to their managers (and failing that, the most senior corporate officers you can find) will not endear you to anyone and is generally not a very cool move. But it may provoke some response if your project/account is otherwise floundering.

Plan C, Go Public: 


!!! This post is NOT LEGAL ADVICE! If you're concerned about exposure to lawsuits, contact an attorney. !!!

Even if a company never rights their wrongs regardless of what you say or do, you can at least warn others so they can avoid the same fate. You may not directly benefit from a public service announcement, but at least you can extract something constructive from your situation. A sense of justice and closure can be almost as meaningful as financial recompense.

Make no bones about it, this is a big step. Public statements or accusations even when completely true and accurate could draw you into the crosshairs of your partner's legal department. On the other hand, a public statement may be your only recourse for catharsis if a lawsuit isn't a viable option.

SEE DEDICATED "Strategies for Going Public" SECTION BELOW FOR MORE DETAILS!

Plan D, Get a Lawyer: 


It is what it says on the tin. Only a lawyer can best inform and guide you along the least painful and most fruitful path forward. Depending upon your case, it may be safest to bump this up to Plan C. You may even be able to find a free consultation within the appropriate jurisdiction.

Of note, a letter from a contracted lawyer may be enough to get the wheels of a deal moving even without a full-on lawsuit—particularly when facing the less legally savvy.

Plan Z, File a Lawsuit: 


Unless you're a C-level executive at Wizards of the Coast or another TTRPG corporate giant, it's uncommon that you'll be disputing sums which justify a lawyer's fees—but not impossible. I have little to say on this matter besides "see plan D." God(s) be with you.

Why is this plan Z? Because it's a huge pain in the ass and incredibly expensive to sue someone. It's a last resort.

Now, if you somehow have the time and means to travel to the relevant jurisdiction for an extended period, you could always pursue a civil case pro-se (that is, without a lawyer). This would save a lot of money, and there is, as I understand it, some leeway for under-professionality in pro-se litigants within the US. This won't be a good option for almost anyone, but if you:
  • Happen to live within or very near the jurisdiction indicated by your contract;
  • Have more time than money, and;
  • Are a particularly spiteful and determined asshole,
…this could be a consideration.

!!! This post is NOT LEGAL ADVICE! If you're concerned about exposure to lawsuits, contact an attorney. !!!

Strategies for Going Public


Before even considering going public, triple-check your contract(s). Is a non-disclosure clause (NDA) buried in there? If so, you may be contractually bound to keep your mouth shut about dealings with the other party—on pain of suit. No-go.

consider your next move

Defamation


Besides a possible NDA, the primary hazard in public statements would be defamation (libel or slander). At least in the United States, speech is fairly protected, and libel cases are hypothetically difficult to successfully litigate. Truth is an "absolute defense" to defamation, so as long as you're purely factual and not conclusory in your language, you should hypothetically be protected.

While certain conclusory statements may also be legally protected as a matter of opinion, it's best to be safe if operating without consultation of a lawyer.

Example 1. Less risky, factual statement: 

"Company A billed me $100 to ship 10 books, when Companies B, C, and D all charge me only $50 to ship 20 books the same distance."

Example 2. More risky, conclusory statement: 

"Company A scammed me with overpriced shipping and stole the proceeds."

In particular, you want to avoid implication of criminal activity in any public statement. Very few contractual breaches are criminal in nature, and people will absolutely come after you for asserting criminality. 

Additionally, DO NOT threaten to take your issues public. Such threats could be construed or prosecuted as blackmail. If you do want to go public, just do it. Don't warn them first.

All that said, an entity can always proceed with a baseless defamation claim to threaten and drain you of resources. Be cautious.

Threats Large and Small


When deciding whether to go public and how to approach the tone of your statements, consider the nature and resources of the [allegedly] delinquent party. 

It is my (perhaps misled) assumption that a Small, games-focused company would be less likely to pursue legal action over online comments—both due to lack of resources/legal sophistication, and for the terrible optics of using a lawsuit to silence another business operating in the same industry. This can also be a double-edged sword maneuvered to cut against your tender indie flesh.

Approaching (the Masses) with Caution


Should you find that the TTRPG community would benefit from hearing about your experiences with the [allegedly] delinquent party, here are some strategies for crafting your statement:

1. Workshop your concerns in private: 

Bad business dealings can be enormously stressful and feel deeply personal as a freelancer or solo operator. It's good to get an outside perspective on the situation for clarity, not to mention compassion. Who knows, you might find allies going through the same thing (perhaps even regarding the same company!) to lean on and strategize with. 

Just, you know, be careful about who you talk to. Don't dish to narcs.

2. Write your posts as public service announcements:

You are first and foremost informing others about your experiences with a company so they can make educated decisions when navigating the TTRPG industry. 

You are not inciting people to take any specific actions relating to that company, barring perhaps the factual details of the contractual dispute, e.g. "these people are selling my books without a license, so please buy my stuff elsewhere."

3. Don't draw conclusions, let readers do so themselves:

Never say things like "…so you shouldn't work with these people" in your statements (this could get you into legal trouble—see "tortious interference" in common law). If the facts of the dispute merited going public, the mere facts should be sufficient to convince people.

4. Explain the consequences of the other party's actions:

You're an indie developer, presumably barely eking out a living through a niche artform. People generally agree that life is hard enough without corporations ripping you off or otherwise wronging you. 

5. Know your audience.

Public statements will most likely be well received if you're very specifically operating and posting in a worker-friendly indie RPG space. 

Reddit for example might not care about your industry grievances. Certain Twitter/Bluesky/etc. subcultures may likewise be less likely to share your posts (use your judgment). Best practices for general social media posting apply. 

The more eyes on your posts, the more people you'll help with your PSA.

Public Statement Outcomes


It’s possible that warning or informing the community about someone else’s unjust actions could indirectly benefit you—if the offending party cares enough about the mood of the community (the part who comprise their existing or potential customers), said offending party may propose to finally give you what you were entitled to in the first place. I don’t think you can or should expect that result, but who knows. It could happen. 

For example, consider a post on Yelp (ah, Yelp) that describes a poor experience at a restaurant:

Readers of the post benefit by having been forewarned about said experience at the restaurant. In most cases, the only benefit to the poster is to purge their own residual frustration from the bad experience.

Occasionally (rarely), a restaurant with capable management responds to a critical post by acknowledging the legitimacy of the criticism and offering the diner a re-do at the restaurant’s expense, thus demonstrating to the community the restaurant's commitment to improve and thereby protect its good will.

All that would be nice and all, but all you can reasonably hope for with a PSA is closure and community betterment. It's something ☺.

DISCLAIMER: I'm not advocating for Yelp grousing.

☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺☺

Review and Roundup (Yeehaw)


For the few of you who read all of that nonsense, you've made it (almost) to the end. Here's a last few hopefully useful tidbits. The consolidated red flag checklist thing is probably one of the more practical things on my blog but I didn't know where to put it so here it is, enjoy.

Red Flag Recap


You might want to consider going with a different business partner if you find many "yes" answers in the following list:
  • Do they take long to respond to emails?
  • Can you find online reports of negative experiences with them?
  • Do they respond defensively to criticism or unfavorable allegations?
  • Do they badmouth previous clients?
  • Do they have high employee turnover (are you passed around to different reps frequently)?
  • Do they deflect responsibility for services previously offered?
  • Do they try to sell you services that seem to/should be already covered by the original agreement?
  • Do they (not) resolve concerns in a timely manner?
  • Does their contract have vague or confusing terms?
  • Does their contract seem improvised—perhaps not written by a lawyer?
  • Does their contract fail to cover their obligations toward you?
  • Does their contract contain terms out of proportion with industry norms?
  • Are they strictly unwilling to negotiate and modify contractual terms?
  • Do they (not) pay on time?
  • Do they use corpo-speak, particularly if a Small company?
  • Are they "hip" and "with it"? Are they down with the youth? Reaction gifs aplenty?
  • Do you experience nausea and/or vomiting after speaking with them?
  • Does their website suck to use and behold?
  • Do they seem to (not) know what they're doing?

More Than What You Pay For


If you take just 1 lesson away from this post, be it this: 

You're not paying a retailer or logistics partner for mere services, you're paying them to make your life easier.

Everything that comes in between the selling of books and paying of invoices is the stuff that you'll actually be living with on a daily basis as a [self-]publisher: the research, the emails, the bookkeeping. 

Some retailers may waste so much of your time, even without any actual screw-ups, that you'll lose out overall (financially and mentally). Sometimes its worth paying more for fulfillment services even if you're just a tiny bit more confident in the professionalism and efficiency of a given outfit.

Put in the time to vet your partners. Talk to people. Don't hope for the best.

On Not Losing Hope


Let's chat about that 6th (BONUS) layer of our risk assessment onion. It's real. It's real tough. It's a tear jerker.

I've spent, I don't know, weeks? Months? Of my life just stressing over fulfillment and retail problems. Not working it out, not smoothing things over, just worrying.
You shouldn't do that. Don't let them win.

Something to keep in mind: the tone of this post is more pessimistic, colder, and more cynical than you almost certainly should be in reality. It's not even how I view the world (most of the time). This post is the devil on your shoulder encouraging you to consider the evil in everything. 

The angel says "Have a good time! Make fun games! People are nice and cool!"

Solutions and Community


I am fortunate to know many wonderful people in the indie TTRPG world who I can consult with privately for advice and to tap into the diasporic RPG hive consciousness (recommended blog posts, second- or thirdhand knowledge, etc). 

Many indie devs, particularly those just getting a foot in the door, may not have those connections to fall back on.

This is just musing, but there's a real need for a centralized source of RPG sausage-making information—particularly when it comes to topics like those discussed in this post. Our second layer of the onion (which you may recall involves vetting potential retail and distro partners), is both the most relevant step in risk mitigation and hypothetically least painful. But there's an accessibility problem. 

Someone please do something about it.
___

IMAGE CREDITS: All images other than the Risk Onion taken from Cameron's World, a cool website. Original olde-internet sources (if present) are linked there.
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