Hold Harmless-Want on half of LLC and NOT self I recently applied to a position to teach yoga, as an independent contractor. I have formed an LLC, and now the gym would like me to sign a hold harmless agreement. I want to make sure the LLC is signing the agreement, and not myself so that any potential claims would have to be brought through the LLC. Is it enough to sign the hold harmless as "manager of [LLC name]"? I also filled out the W-9 with the LLC name in addition to my own.
SHORT ANSWER The hold harmless agreement binds you individually if you sign it individually. But, you may have liability to the firm you are contracting with as a matter of law anyway, as an individual, unless that is expressly waived by contract with the person who might otherwise sue you. You should get liability insurance for yourself and your LLC. If the place you are working with doesn't have a waiver in place with students already, you should have your students sign one that is drafted by a lawyer in your particular state. I don't address this is the long answer, but you also shouldn't have signed a W-9 for yourself individually. Only the LLC should have had to fill out the W-9, although this probably doesn't do any great harm. LONG ANSWER Two Main Kinds Of Liability: Contract and Tort There are two main kinds of liability (there are other kinds of liability too, but they come up much less often). One is for entering into a contract with someone and failing to perform that contract causing the other person not to receive the benefit of the bargain, which is called contractual liability. The other kind of liability is called tort liability. Tort liability arises when you have a non-contractual legal duty towards someone (i.e. a duty that arises as a matter of law), you breach that duty, and that duty causes someone to suffer damages. If you also have a contract with that person tort liability can be limited, but not eliminated. The most common form of tort liability by far is liability for &quot;negligence&quot; in which the duty that arise as a matter of law is the duty to use reasonable care under the circumstances to refrain from causing harm to another person. Limiting Contractual Liability It is possible to limit contractual liability by saying so in the express language of the contract. Only parties to a contract have liability under a contract. It is also possible to have broader or narrower scopes of an indemnification clause, or to limit another person's right of subrogation against you (i.e. the right to sue you to pay part of what they had to pay when they are held liable for a wrong you committed). A disclosed agent of a principal (or employee of an employer) including a manager of an LLC, is not contractually liable for breaching the principal's (or employer's) contract. An undisclosed agent or principal (i.e. someone acting on behalf of another but acting as if he or she is acting on his own behalf) is liable on the contract along with the principal or employer. The principal is liable on contracts entered into by a disclosed purported agent with mere &quot;apparent authority&quot; to do so, even if the agent is not actually authorized to enter into the contract, and the principal in that case has recourse only against the agent. So, if you sign a contract in your capacity as a manager of the LLC, rather than in your person capacity, and you do not personally guaranty the contract, you do not have contractual liability on the contract. Typically, to do so, you would sign the contract like this (the italic portion would be signed and underlined; the rest would be printed): XYZ, LLC By Leonara the Great Leonara the Great, as Manager Tort Liability Vicarious Tort Liability Of An Entity A principal or employer, including an entity, has &quot;vicarious&quot; liability for the acts of all of the principal or employer's agents and employees within the scope of their agency or employment, even if the principal or employer prohibited those people from doing that as a matter of policy, contract or a specific instruction not to do so. So, the LLC is liable for anything you do related to the LLC's yoga business. Liability Of Disclosed Agents, Employees, Managers And Officers Of Entities As explained below in a case that is representative of the overwhelming majority rule in the U.S., a human being is responsible to third parties for torts in which he participates in the absence of a waiver for that person, even if acting an an agent or employee or contractor of another company: (I have no idea why I can't get this to appear as text rather than as an image). Limiting Tort Liability Tort liability cannot be limited in the absence of a contract with the person actually harmed, or via a statute that limits tort liability. It is possible to contractually waive tort liability to a person signing a waiver, in advance of a tort occurring, not predicated on contract that arises from negligence or as a matter of strict liability, but not in cases of intentional conduct, reckless conduct, willful and wanton conduct, conduct amounting to bad faith, and conduct that amounts to &quot;gross negligence&quot;. Gross negligence is a failure to act using reasonable care that is so extreme and obvious that is comes close to being reckless in character. Practical Options Almost every business that engaged in activities that could give rise to personal injuries buys liability insurance that covers lawsuits against the business and the employees and agents of the business (i.e. in this case, your LLC and you personally acting on behalf of the LLC) to address this risk. This provides two benefits to you and your company: (1) it provides a lawyer, free of charge, to defend you if you are sued for a covered risk, and (2) it pays awards against you in a lawsuit or via a settlement related to a covered risk, up to a stated dollar amount. Insurance is a near necessity, because not all risks can be waived and even if you have a waiver that is upheld by a court, that doesn't prevent you from having to hire a lawyer to defend yourself in that lawsuit. Just to provide a reality check that this really is what people do, my wife was an independent contractor pilates instructor for a while and while she did that she paid for liability insurance in addition to having waivers signed by her students. (Bigger studios will have waivers for students already in place that cover you.)
There are three answers here. First, as is common on this site, you are using the term, "legal" and "illegal." Those are not legally meaningfully terms. A good lawyer won't use those terms to mean allowed or disallowed. We talk in terms of potential civil or criminal liability, or other sanctions and consequences. To say that something is "legal" does not communicate much. Second, all contracts are governed by a duty of good faith. That means that you cannot try to "trick" someone with the terms of the contract and expect to enforce that contract against them and you cannot try to skirt your obligations by finding a tricky form of compliance not within the mutual understanding of the agreement. As with all things, defining good faith is not easy, and depends on the specific context of a situation. It is worth distinguishing between the duty of good faith, and the duties one owes to a fiduciary; good faith is surely far less, but nevertheless still meaningful. Third, a defense to non-performance of a contract is that the agreement as written is unconscionable. A contract that is a grossly unfair deal where the contract was not actively negotiated (i.e. Blindly signing a bad form contract), may fall under this category. Note: I am not your lawyer; this is not legal advice; contact a licensed attorney in your area; do not rely on my statements; I merely am providing a general answer that is academic in nature.
we would like to know whether we have sufficient legal grounds to sever/terminate/exit this contract with Superior Management Co.*, if the company does not mutually agree to do so. No. In that event the HOA is stuck with the contract at least for the remaining part of the current period. The HOA's concern that the provider could breach the contract by significantly underperforming seems speculative and does not entitle the HOA to breach it first. Changes in the name and/or ownership of a party does not alter the parties' rights and obligations pursuant to the contract. This implies that neither party is entitled to disavow his obligations by terminating the contract altogether. For early &amp; unilateral termination to be an option, it would have to be provided in the terms of the contract itself.
In the lease agreement we stipulated that rent would be 50% off until the building received full services and then the full rent payment would be due. Ouch. I bet the lease agreement also says something like &quot;no other agreements verbal or otherwise are in effect for this agreement.&quot; So what you did was release the landlord from the responsibility to make the building habitable. Pretty sure you will need a lawyer to unwind this.
Those two situations should be legally equivalent. The key thing is that you intend to agree to the contract, and are taking physical steps that are intended to manifest your agreement. If you had added an electronic signature to the PDF file, and transmitted this to the company, it should also be legally equivalent, and just as binding as the pen and paper method.
The basic requirement is that any communication using the trade name be possible to trace back to the LLC using the trade name, either with a disclosure in the communication itself, or with a trade name (a.k.a. doing business as a.k.a. dba) registration that links the trade name to the entity in the public record. If this is not done, business conducted in the trade name may be treated as a sole proprietorship or general partnership of the people actually conducting the activity, rather than an activity of the limited liability company behind it, thus depriving those people of limited liability protection.
The date and location of the signature merely documents when/where the signature was made, and doesn't have a lot of legal significance for ordinary contracts. This information is probably only useful if you need to argue that you could't have signed the contract because you weren't in that town on that day. Despite this small lapse your contract is perfectly valid, in particular you are required to make any payments that are part of this contract. It doesn't make sense to get this corrected. However, if any actual information (for example, you address) changed, then you should notify the gym to update the information.
Law (regardless of its type) supersedes contract, provided it has jurisdiction over the persons bound by that contract. Contract provisions that are counter to law are generally held to be void. State law has authority over an employer's policies or hand book. However, there may be exceptions in state law (so I would double check). A frequent exception (at least in California law, which I am most familiar with) is for very small businesses. Another exception, from C.R.S. § 8-4-101(5), is if you are considered a "contractor" rather than an employee, per the government's determination. It is possibly worth your time to let you employer know of this conflict before termination if possible, so that they can adjust their policies, rather than in an adversarial position after termination, if only to avoid the headache.