| Corporate lawyer here.[1] There actually isn't too much in this that I would object to if this came across my desk… except the indemnity clause. It’s so broad I would imagine any lawyer worth their salt would request at least specifying the scope of the indemnification. Even knowing it likely won’t be executed as-written I would still suggest you consider adding: > The Client agrees to indemnify, save, hold harmless and defend[2] the Contractor from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party (including reasonable attorneys’ fees and expenses)[3] as a result of the work the Contractor has done under this Contract. (Without the explanatory footnotes, of course.) The non-solicitation clause also sticks out to me because it seems a bit odd. I’ve never come across something like this in an agreement with a freelancer and I think I would be suspicious if someone tried to include this in an agreement. Are they going to try to poach my people as soon as the contract ends? I think it’s better to just leave it out - I can’t imagine many corporate attorneys would look for this specific clause, let alone insist it’s included. I don't work in Silicon Valley though so it might be different there. Finally, this one is nit-picky, but it looks like you have a duplicate “is” in the second sentence of the agreement. (It’s captured in the screenshot on your site, too.) [1] That means I've never given an agreement back to a contractor without redlining it – we just can’t help ourselves! [2] Indemnification typically occurs after the matter is settled. That means if the Contractor gets sued for the work done the Contractor would foot all the legal bills and once the proceedings are complete the Client would cut a check to the Contractor for the costs incurred. Most freelancers don’t have the deep pockets their clients do so that could put them in a precarious financial position. Adding the duty to defend here means the Client would have to actively fund the Contractor’s defense of the claim, not just reimburse it. In some states this is assumed to be part of the indemnification but in others it must be specifically included in the agreement. [3] Likewise, in some states attorneys’ fees are not considered part of the indemnification unless expressly stated and whether or not litigation expenses such as e-discovery or an expert witness are covered is still debated so it's best practice to clearly include them. |
3 out of every 5 clients of ours takes our unilateral indemnity clause (our legal was optimistic!) and simply reverses it so it works for the client and against us. I'm pretty close to offering mutual indemnification simply to avoid round trips. Anyways my point is that, as the representative of corporate attorneys on this thread, I blame you.