Contract clauses

Is an uncapped indemnity clause normal in a freelance contract?

No. An indemnity with no cap exposes you to costs that bear no relation to what you are being paid — on a $3,000 project you can be agreeing to fund someone else's litigation. The cap elsewhere in the contract often does not apply to it, because indemnities are usually carved out of the liability cap.

What the clause actually does

The version that should worry you

The Contractor shall indemnify, defend and hold harmless the Client, its affiliates, officers and agents from and against any and all claims, damages, losses and expenses (including legal fees) arising out of or relating to the Services.

“Arising out of or relating to the Services” covers claims that are nobody's fault, and claims caused entirely by the client. It is one-way, uncapped, and “defend” means you are funding the defence from the first invoice, before anyone has decided who was at fault.

A version worth signing

Each party shall indemnify the other against third-party claims arising from its own negligence, wilful misconduct, or breach of this Agreement. The Contractor's total aggregate liability under this Agreement, including under any indemnity, shall not exceed the total fees paid under this Agreement.

How to ask for it

Two things, and the second is the one that matters: make it mutual, and bring it inside the liability cap. Ask directly — “can we make the indemnity subject to the liability cap?” A counterparty who refuses to cap your exposure at any multiple of the fee is telling you something.

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Related clauses

This page explains what a clause does in general commercial terms. It is not legal advice, and what is enforceable varies by jurisdiction — for anything turning on that, ask a lawyer where you are.