Model Trade Book Contract

15.

Indemnities.

    1. Subject to Section 16 (Insurance), Author agrees to indemnify and hold harmless Publisher and Publisher's licensees of any edition of the Work against any losses arising out of any claim resulting from a breach of any of Author's above representations and warranties. If a claim is brought against Publisher or one of its sublicensees, Publisher will have the right to defend with counsel of its own choice. Author agrees to cooperate in the defense and will have the right to participate in the defense at Author's own expense. Publisher shall not settle any claim, demand, action, or proceeding without Author's consent.

    1. [Publisher may withhold payments due or to become due to Author under this Agreement pending the final resolution of the claim and/or apply any such payments to the reduction of the obligations of Author to the Indemnitees described in this Section 15. If litigation does not ensue within 12 months after a claim has been asserted, any such monies withheld will be paid to Author.]

    1. Publisher agrees to indemnify and hold harmless Author against any losses arising out of any claim resulting from a breach of any of Publisher's above representations and warranties or the acts or omissions by Publisher. Author may, if Author chooses, defend such suit with counsel of Author's own choosing, at Author's own expense; provided that if Author so chooses, Publisher may nonetheless participate in the defense with counsel of its choosing and at its own expense, cooperate in such defense. Author shall not settle any claim, demand, action, or proceeding without Publisher's consent.

    1. Each party shall give the other prompt notice of any suit brought against the first party or its successors, assigns, or licensees alleging facts, which, if proven, would constitute a breach of the warranties in Section 13 (Representations and Warranties). Author and Publisher shall fully cooperate with each other in the defense of any claims. The warranties and indemnities shall survive the termination of this Agreement.

Commentary

The promise to indemnify is a promise by you that you will pay for the losses and expenses incurred by your publisher in a lawsuit based on your breach of warranties (your promises to the publisher in Section 14). The Model Contract version of the indemnities clause limits this obligation to amounts not covered by the publisher's liability insurance (see Section 16). Keep in mind, however, that many small and medium-sized publishers may not be willing to add you to their insurance policies, in which case any limits to your obligation to pay should be incorporated into the indemnities language.

 

Many publishers' standard contracts require the author to indemnify them not only against judgments resulting from their authors' breaches of representations, but for costs incurred in defending against "claims and demands" or "alleged breaches of warranties." This unfairly makes you a guarantor against any lawsuit brought against the work, no matter the validity, exposing you to unwarranted risk. We urge you to do your best to include the types of provisions from the Model Contract, although most publishers are stubborn about changing the language in their indemnities provisions.

 

Many publishing contracts do not have a clause providing for the publisher to indemnify the author. There absolutely should be one: it should indemnify the author for any breach of the publisher's representations and warranties (assuming those have been added). At the least, the publisher should indemnify you for any claims arising from changes it makes to the author's work, for the artwork or other elements it provided, and for its marketing or promotion of the book, as well as for the negligence or willful misconduct of its employees.

 

As per Section 15(b), many publishing agreements will allow the publisher to withhold payment from the author if a claim is asserted. While we recommend a complete deletion of any clause that allows the publisher to withhold your royalties, you should at the very least insert language setting a time limit for withholding royalties, limiting the withholding to the applicable agreement, requiring that the amounts withheld be placed in an interest-bearing account, and stating that the amounts will be released with all interest if no action has occurred on the claim within 12 months.