One of our Copyeditor’s Desk clients asked us to sign a contract to cover whatever work we do for them in 2009.
Ohhh-kay. It looked fairly benign. I started to read through it and was about to fill in our names and sign it when I came across this little gem:
15. ATTORNEY’S FEES: Should Contractor not abide by the terms and conditions set forth in this Agreement and it becomes necessary for the Company to engage the services of an attorney or mediator to resolve any such dispute, Contractor agrees to pay all Company costs associated with this action, including, but not limited to, attorney, mediator, and process server fees. All legal action will be initiated in a Maricopa County, Arizona court.
Even though the dreaded word does not appear, this is an indemnity clause.
Never sign something like this. The paragraph above isn’t as drastic as many; in some contracts the language says you agree to indemnify the other party against (i.e., pay for) any action associated with your work that comes up at any time and in any place. It puts you at horrific risk.
What the paragraph above says is that if a dispute arises between you and the client, you had bloody well better knuckle under to anything the client demands or you will be paying lawyer’s and court fees. Doesn’t matter whether you’re in the right; doesn’t matter whether the client is reasonable or unreasonable: whatever comes up, you get to pay for it. And that’s not fair to you.
People will sue for anything and nothing. Years ago the Associated Press Stylebook and Libel Manual offered as an example of this fact the story of a woman who spotted a photo published in a book showing a crowded beach scene; she decided to sue because her kids were visible and she hadn’t been asked for permission to print their images. She sued everyone—the writer, the publisher, the photographer, everyone in sight. Eventually the writer, who had had no say in what images would appear in the published volume, was let off the hook, but not before he had been forced to hire and pay for a lawyer. Lawyers cost as much as doctors.
Clauses like these often occur in publishing contracts. You’ll see them in book contracts and, even worse, in assignments for freelance magazine articles where the writer earns all of $300 for two or three weeks’ worth of work. They’re often promulgated against people who are underpaid and don’t know any better, as though you were earning the kind of money that you could afford to pay for a publisher’s lawyers.
It’s hard enough to avoid being made to foot the bill for things you shouldn’t have to pay for. Don’t agree to do so just to make a few shekels here or there.
Always, always read every contract before you sign it.
The sequel to this tale appears here.
Right on!
Hmmm… good advice to read the contract, but that mumbo-jumbo rarely makes sense to me. I’ve always said the “I agree” buttons when downloading new programs to my computer are one day going to include something like “Your firstborn child will become ours” or something equally frightening because who ever reads through those? I used to when I first got a computer 20 years ago, and onto the ‘net a few years later, but they go on forever! I would never have caught that that was an indemnity clause… can we hire a lawyer to warn us about those types of things?
It would be expensive to hire a lawyer to read every contract that you sign, although for major purchases and large loan (such as mortgages and car loans), it’s probably a good idea.
Some contracts are unenforceable because they are unreasonable–it’s possible that some of those wacky “agreements” that come with downloads fall under that heading; besides, I wonder whether clicking on a button equates to signing a contract. For one thing, ANYONE could have clicked that button. In most states, contracts with minors are unenforceable. Who’s to say who was using your computer at the moment the download happened? A “contract” with no actual human signature is highly suspect.
However, something you do sign (assuming you’re of age) is indeed enforceable. Just watch anything that says the signer (i.e., you) will pay. Pay what? Under what circumstances? And for sure, never agree to sign anything that says “pay for our lawyers’ fees.”