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Warranty & Indemnity Clause  

One of the most dangerous clauses in a book contract! Make sure yours is right.  

Parts of the warranty aspect are easy enough: they require you to affirm that you are the author of the work, and that you have not infringed the copyright of someone else by copying their work verbatim.

The libel aspect is problematic, though, as you may write something you believe to be accurate, but someone else deems libelous. Whether a court finally decides in your favor or that of the "libelled" party, your life—and finances—may be ruined by a legal action that the publisher should have prevented by careful editing and fact-checking.

It's the indemnity that causes the biggest problems. Some publishers try to require authors to cover all the costs of a lawsuit against the publisher over the book. So if a hotel or restaurant owner decides that your description of his establishment is losing him business, and he or she sues the publisher, you—the author—must pay all the publisher's legal bills and court costs.

This is grossly unfair, as the publisher (and the editors) have a large share of the responsibility for what goes into a book (or stays in).

The best situation is if the publisher includes the author within the coverage of the company's liability insurance. A fair situation is that authors agree to cover their own legal expenses, or share expenses of defense with the publisher.

Publishers will tell you that "the clause will never be used." If the poor author, rather than the rich publisher, assumes all liability, no one will sue because authors have no money, so a lawsuit would be futile.

Hogwash! If it'll never be used, there's no need to have it in the contract. Take it out. If you have a house, or retirement savings, they could go into some lawyer's pocket because of a mistake introduced into your work by an under-age, under-paid editor. Is losing your house worth it?

Even with an acceptable warranty and indemnity clause, be careful what you write. As the phrase goes, "you can say you had a bad meal, but you can't call the owner a crook."

What I did as a guidebook author is to report what I found—exactly. If I patronized an establishment three times, and found the bill incorrect three times, that's what I'd say: "All three times I dined here there were mistakes on the bill in favor of the restaurant. I don't say, "This hotel (restaurant, club, etc.) cheats on its bills."

If I had a bad meal, I'd say "When I ate there last, I had......, and I didn't like it."

I may be sued for saying "They can't make a decent chocolate peanut butter quiche here," because maybe the head chef was out sick that night, and he can indeed make a good one. But I don't think they'd win a suit if I wrote that I didn't like their chocolate peanut butter quiche, because they can't prove that I did.

By "writing between the lines" this way, you can tell your readers what they need to know while defending yourself against legal attack.

Bad warranty and indemnity clauses are one of the reasons I abandoned guidebook writing. My publisher began to demand acceptance of clauses that put the entire risk of lawsuit damages on me. This much risk made no business sense for me, so I wouldn't sign the contracts, so my relationship with the publisher ended.

It was an excellent business decision on my part, and I am now far better off self-publishing on the Internet.

All About Contracts

All About Travel Guidebooks



Tom Brosnahan