Legal Explanation

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  • mathinc

    I have a client who works with mostly very large industrial vendors. They've asked us to remove this standard boiler plate liability line:

    "Client agrees that it shall not hold the Designer or his/her agents or employees liable for any incidental or consequential damages that arise from the Designer’s failure to perform any aspect of the project in a timely manner, regardless of whether such failure was caused intentional or negligent acts or omissions of the Designer or Client, any client representatives or employees, or a third party."

    I can understand how this line might get flagged by their legal dept when they're dealing with a multi-million dollar contract with say a concrete supplier or something. Creative services is something that's new to them. Wondering if you all had any good points to help explain the difference? Or possibly another wording that made more sense.

  • detritus0

    ‘was caused intentional’?

    • Sorry, the clause I quoted isn't the actual one in my contract. Didn't have it in front of me at the time.mathinc
    • haha yeah, the 'was caused intentional' is a little over the topmathinc
  • yurimon0

    why they want the liability to be removed?

  • formed0

    You need to limit your liability to nothing beyond the amount actually paid by the client. Otherwise, you could be two days late and they could say you caused $100million in revenue, etc.

    You need a Limitation of Liability clause.

  • mathinc0

    Yep, removed. They said:

    "Because it says they are not liable for anything. We generally expect any vendor to be liable for something they do wrong."

    Which makes perfect sense if they're hiring a contractor to build a building that ends up falling down and crushing people. So I'm wondering how to explain this to them a little better. I'd obviously rather not release liability.

  • yurimon0

    Also do you have performance clause? cause they could delay your work for a few days and say you messed up where they didnt deliver on performance on their end of something you need to continue your works, thus saying you causing them harm when they baulked....

  • PonyBoy0

    When you get this all figured out can you send me a copy so I may steal it? Rad, thanks.

  • randommail0

    Rights of Third Parties
    We will commit to you that, to our knowledge, the work we produce on your behalf will not infringe upon the intellectual property rights of any third party. However, you will be responsible for conducting patent, copyright, trademark and service mark searches and any other investigations required in order to ensure this.
    You shall have the sole responsibility to secure statutory protection for intellectual property rights in the work. We will cooperate with you in the preparation and execution of all documents necessary to secure these protections, upon the payment of the appropriate invoices; costs incurred by us in connection with this cooperation will be billed to you at our cost.

    Indemnification of Both Parties
    We hereby agree to indemnify and hold you harmless from and against any and all third party claims, demands, regulatory proceeding, damages, costs (including, without limitation, settlement costs) and expenses (including, without limitation, reasonable attorney’s fees), (collectively ‘Losses’), arising from any claim pertaining to libel, slander, defamation, copyright infringement, invasion of privacy, piracy, plagiarism, or any violation of intellectual property rights brought by third parties, which includes Third Party Vendors, relating to any materials we create or supply to you, except to the extent that such claim arises from materials created or supplied by you. We also agree to indemnify and hold you harmless against Losses caused by our breach, negligence, will misconduct, or bad faith with respect to this Agreement.
    Other than that for which we agree to indemnify and hold you harmless pursuant to the above, you agree to indemnify and hold us harmless from and against any and all third party claims, demands, regulatory proceeding, damages, costs (including, without limitation, settlement costs) and expenses (including, without limitation, reasonable attorney’s fees) arising from or relating to your breach, negligence, will misconduct, or bad faith with respect to this Agreement.

    Warranties & Liability
    We represent and warrant that all services will be performed in a professional, workmanlike, competent manner consistent with applicable professional standards; additionally, all work product will conform to the specifications agreed to, and will be suitable and appropriate for the designated use. With regard to software and other computer code, we agree to indemnify and hold you harmless – including officers, employees, and agents – from and against all claims, suits, damages, losses, liabilities, or expenses of any kind that occur as a result of recycled, modified, compiled, or copied code, as well as any occurrence of code corrupting your existing data and programs. We will use our reasonable best efforts to guard against any loss to you through failure of Third Party Vendors to perform in accordance with their commitments, and shall be liable for any damages, costs and expenses (including reasonable attorney’s fees) resulting from Third Party Vendor’s non-performance negligence, willful misconduct or bad faith with respect to this Agreement.

    Waiver
    No waiver of any section of this agreement shall be valid or binding upon the parties unless made in writing and signed by duly-authorized representatives. Failure to insist upon strict performance of any section shall not constitute a waiver of the right to insist upon strict performance of the same section or other sections in the future.

    Severability
    If any section of this agreement shall be held to be illegal, invalid or unenforceable, the validity, legality, and enforceability of the remaining sections shall not in any way be affected or impaired thereby.

    Force Majeure
    Neither party shall be liable for damages for delay or failure to perform any obligation under this agreement if such delay or failure results directly or indirectly from circumstance beyond the reasonable control of such party.

  • jtb260

    They have lawyers. You need a lawyer too. Lots of good information out there on the internet about this, but if they lawyers looking at the contract it's time to have yours at the table too.

    • *their lawyersjtb26
    • Depends on the job. If it's a week's work, does he spend half his earnings on a lawyer?Projectile
  • cannonball19780

    Ask yourself the reason you need a liability clause. If it is because you don't want to get sued for a botched photo shoot and not because you don't want to be liable for anything, then make the language reflect the intention.