Most people that hire us fail to realize that we are consultants that hold professional status as opposed to being a contractor.
I have an addendum I use when a developer gives me one of his contracts that clearly states that I am a consultant governed by the BTR and am not a contractor and am not governed by the ROC and the word consultant replaces the word contractor.
They all have been ok with this so far.
In my every day contracts I have a page that goes out with every scope that the client is to sign and return.
I use this because it is a CYA document prepared by my attorney and it helps keep me and the client in line.
Only twice in the last several years have I had someone complain about it and tell me that they dislike it and it all revolves around the indemnity clause.
I understand that this could make a person somewhat nervous because they think that they will have zero recourse in the event of an error or bad situation. I get it, and it is very unfortunate that we have been forced to cover up. Actually this is kind of sad. I loved the days when a verbal and a hand shake did it all.
Because we hold professional status we automatically have a huge target on our backs. We are held to the same liability as a doctor or lawyer which means after a sue happy person burns through our company and our insurance they can attack our personal assets.
Think that one over, yes what I am saying is true.
So then comes the idea that we are way under paid. I personally carry 2 million in E&O and 2 million in GL and oh yeah another 1 million in auto. I pay through the ass for all of this just to attempt to keep myself safe and to ensure that the client is protected from me.
There is something fundementaly wrong with this picture!!!!
Below is the CYA sheet from my contract. Will you please have a look and please give me some feed back.
I am curious to see what my colleagues have to say.
TERMS: PAYMENT DUE UPON COMPLETION.
No Third-Party Beneficiaries: This agreement will not be interpreted as creating any right or benefit of any kind or nature whatsoever in any third party or class of persons who are not parties to this agreement or who are not expressly designated in this agreement. Furthermore, no non-party will have any rights as against R.J.R. Surveys, Inc. or its affiliates with regard to this agreement or any services performed pursuant to this agreement.
Waiver of Jury Trial; Damages Limitation; Attorneys Fees: The parties waive any right to right a jury trial, treble damages, consequential damages, and punitive damages. The prevailing party in any dispute will be entitled to receive from the other party an award of attorney’s fees, costs, and expenses.
Indemnity: The undersigned will and does hereby agree to fully indemnify, defend, and hold harmless R.J.R. Surveys, Inc. (including its respective partners, officers, directors, agents, employees, attorneys, and affiliates) against all claims, damages, losses, and expenses incurred by such entities and persons, including, but not limited to, reasonable attorneys’ fees, court costs, and disbursements (i) arising from the acts or omissions of the undersigned and its partners, officers, directors, agents, employees, attorneys, and affiliates that are the result of any indemnifying party’s negligence or intentional acts and/or (ii) related directly or indirectly to claims of third-parties related to the services performed by or on behalf of R.J.R. Surveys, Inc.
Discretionary Arbitration: In the event of a dispute arising out of this agreement or the services rendered pursuant to this agreement, at the election of R.J.R. Surveys, Inc., which election may be made in its sole and absolute discretion, such dispute will be submitted to binding arbitration in accordance with the rules of the American Arbitration Association then in effect using a single arbitrator and occurring in the County of Maricopa, State of Arizona.
Non-Disparagement: Notwithstanding anything to the contrary in this agreement or any other agreement between the parties, each party hereby agrees not to make, permit to be made, or facilitate or aid in the making of any public statement or disclosure about the other party, the contractual relationship of the parties, any dispute among the parties, or any matter related to any of the foregoing.
Personal Guaranty: By signing below, the signer absolutely personally guarantees the payment of all monies that may become due as a result or consequence of this written document. That in the event the services of a collection agency, attorney or filed lien are required to collect any sums due, you accept responsibility for such attorney, collection and lien fees and pay 12% interest APR on any amount that goes unpaid more than 30 days past due
__________________________________________ ___________________________________
Signature of Authorized Person Printed Name of Authorized Person
__________________________________________
On behalf of
__________________________________________
Date
Method of payment: Please check one.
Check______ Cash____
Note: Files released upon payment in full.
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