SigninG a Publishing Contract

9. Warranties and indemnities

Most contracts will include language about warranties and indemnities. A warranty is a promise you make about the game you are licensing — usually that it's actually yours to license. Making an indemnity is promising to cover the costs of damages if the things you promised in the warranties section were not true.

9A. Designer Warranties

Usually, the warranty section of a contract will ask you to promise that the game is actually your idea and that you haven’t already licensed it to another publisher. 

DESIGNER warrants to the best of their knowledge that:

  1. DESIGNER is legally allowed to enter into this Agreement with PUBLISHER
  2. DESIGNER is the exclusive owner and/or sole representative of the exclusive owner of the copyright and trademark interests in GAME, and 
  3. No other third party has right, title or interest in GAME.

Some contracts include a clause making it clear that neither party is making any promises that the game will actually sell. 

DESIGNER delivers GAME “as is.” Except as otherwise provided in this Agreement, neither Party makes any express or implied warranties or conditions of any kind, including without limitation, any implied warranties of merchantability or fitness for a particular purpose.

9B. Publisher Warranties

It is much less common for boardgame contracts to include warranties by the publisher. To be fair, you might ask them to include the following: 

PUBLISHER represents and warrants that:

  1. PUBLISHER has the full right and ability to enter into this Agreement; 
  2. PUBLISHER complies with all applicable laws in all jurisdictions in which it does business; 
  3. PUBLISHER will perform its services and obligations under the Agreement at no less standard than can be reasonably expected from a publisher of tabletop games of a similar quality and market share as PUBLISHER; 
  4. PUBLISHER will perform its obligations hereunder using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement; and
  5. No materials produced or provided by PUBLISHER in connection with GAME will infringe any intellectual property right, be defamatory, or otherwise violate any other right of any kind of any person or entity or contain anything that is unlawful or deceptive.

9C. Designer Indemnities

The section of a contract asking the designer to indemnify the publisher generally addresses the question: If it turns out that you were wrong in your warranty section, and didn’t actually have the right to license your game, what happens?


Intellectual property rights in the world of boardgames are murky at best, because game mechanics are not copyrightable. Suits claiming that you have infringed someone’s intellectual property rights are extremely rare, but not impossible. It’s hard to know how hard to push to make an indemnification section more favorable to you. In general, you want to avoid language that would require you to cover a publisher's legal costs, no matter the outcome of lawsuits. Instead, seek to limit your liability to cases where you are actually at fault:

If a third party is able credibly to demonstrate that the production and/or distribution of GAME infringes its rights, PUBLISHER may withhold the royalties pursuant to [section x] until the matter has been clarified. If DESIGNER is responsible for slight negligence, DESIGNER shall be liable to PUBLISHER in the event of damage up to a maximum of the total amount of the royalties accrued up to that point under this Agreement and any possible advance payments. If a court determines an intentional or grossly negligent violation of rights by DESIGNER, DESIGNER shall be fully liable.

9D. Publisher Indemnities

It is much more likely that things that the publisher does could be subject to lawsuits. You definitely want language in your contract indemnifying you against problems that arise because of the publisher’s behavior. 

PUBLISHER agrees to indemnify and hold harmless DESIGNER:

  1. 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.
  2. against all costs, expenses, and losses (including reasonable attorney’s fees and costs) incurred as a result of claims, or threatened claims, of third parties against DESIGNER based on the design, development, production, hosting, maintenance, support, marketing, promotion, sale, publication, and distribution of GAME, including, without limitations, claims founded on:
  3. product defects, product liability, or false or misleading advertising;
  4. any negligent or more culpable act or omission on the part of PUBLISHER or its sub-licensees;
  5. any act or omission on the part of PUBLISHER or its sub-licensee that constitutes a breach of this Agreement; or
  6. any act or omission on the part of PUBLISHER that constitutes a violation of any applicable law.


Any out of court settlement of any suit filed jointly against the Publisher and the Creator shall be made only by mutual agreement in writing between same. 

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