Cory Doctorow on unfair contracts for writers
pluralistic.net
pluralistic.net
I got something like this last month, as a (very small) software vendor!
The lawyers from a potential customer modified my standard contract. A DDG search finds an almost identical copy of the text at https://controlriskonline.net/Account/Register so I'll quote from it to preserve any implied confidentiality:
] Licensor will defend or settle any action brought against Customer to the extent that it is based upon a claim that the Software, as provided by Licensor to Customer under this Agreement and used within the scope of this Agreement, infringes any U.S. patent or any copyright or misappropriates any trade secret, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment or are payable in settlement, provided that Customer: (a) promptly notifies Licensor in writing of the claim; (b) grants Licensor sole control of the defense and settlement of the claim; and (c) provides Licensor, at Licensor’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim.
Yeah, that got big no from me.
(What I actually said was that I could acquire liability insurance that could cover this, and pass this on as a cost-plus increase to my quoted price.)
They also wanted me to move jurisdiction from Sweden to the US, which ain't going to happen.
I also said that my quoted price didn't include the time and mental effort to negotiate legal terms with every potential customer, so if they wanted to discuss further changes I would need to raise my price.
> But I burned that editor, put her in a terrible position with her new bosses.
Yeah, I'm worried about that too. My primary contact is decently senior, but he's already done some back-and-forth for me, and I don't want to burn him further.
> III. Blanket indemnities. I'm not wealthy, and my insurer won't cover claims that you settle without their consent. Asking me to indemnify you against "all claims" exposes me to the risk of bankruptcy – and still doesn't protect you. I change this to "all finally settled claims."
A claim not finally settled leaves nothing to indemnify against. I'm missing something here.
Edit: Maybe "I indemnify Publisher against all claims which at the time of contract signing are finally settled"?
> finally settled means that all parties to the litigation shall have entered into a settlement agreement, that all relevant courts shall have approved the settlement, and that the terms of the settlement shall no longer be subject to appeal, or that such litigation shall have been dismissed with prejudice by a court of competent jurisdiction and such dismissal shall not be subject to appeal.
That means the missing information is temporal: the subsitution in point III narrows indemnity to only those claims which satisfy finally settled at the moment the contract binds.