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indemnity clauses

A$K…

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One of the freelance writer’s (and editor’s!) mottoes is “A$k and ye shall re¢eive.” It was coined (as it were) by the American Society of Journalists and Authors, the best of the few truly useful writer’s groups in existence. The gist of this bon mot is that you should not accept just any lowball offer a publisher tries to inflict on you, but instead should insist on being paid fairly for professional work.

Well, I just landed a client that pays a moderate but more or less acceptable rate. Only problem is, this company expects contractors to sign a nondisclosure agreement that contains not one, not two, but three onerous indemnity clauses. In a nutshell, the contract proposes that the penniless freelancer will pay all the legal bills for any claim even vaguely related to her or his work that is brought against this international corporation by any wretch who thinks he or she should feel aggrieved.

I’ve been going back and forth with the company’s rep for the past ten days or two weeks over this, they offering one modification or another and me repeating that I’m not signing any agreement to indemnify.

Amazingly, they sat down and rewrote their contract to delete the offending clauses! The thing arrived in the e-mail this morning. So… I guess we’re on.

This is the second time I’ve stood my ground on indemnity clauses, expected to be told to take a hike, but prevailed.

The take-home message here is that if you own a small enterprise, you should stand firm on negotiating your terms and your price, and never accept a deal that puts you at a disadvantage.

Read that contract!

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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.