The client's MSA wants unlimited liability, a noncompete and everything I have ever built

Written for independent consultants, fractional executives and small consulting firms that use employees or subcontractors.

The short version

1. Promise care, not results, and cap liability.Commit to the professional standard of care. Keep indemnities (promises to cover losses) mutual, for third-party claims only, and inside the cap unless separately insured.
2. Hand over named deliverables only, on payment.Transfer them by signed assignment once paid, and license your existing tools and templates instead of giving them away.
3. Strike any noncompete your state bans.California voids covered noncompetes and Minnesota bans them, for example. Elsewhere, have counsel narrow them to the protectable interest, activity, area and shortest supportable time.

Client paper is written for the client. In a consulting MSA, the clauses that matter most are the standard of care, the liability cap and indemnities, who owns the work product, and any restriction on who you can work for next. Have an attorney licensed in the governing-law state review any change to the cap, indemnity or IP.

Promise the professional standard of care, not a result. Article 2 of the UCC applies to goods, so disclaim implied warranties conspicuously for any goods or software you supply. Texas enforces an indemnity for the other party's negligence only when it is express and conspicuous. Keep indemnities mutual, limited to third-party claims and inside the cap unless separately insured.

• Refuse pay-when-paid terms and unilateral set-off of disputed or unrelated sums.
• Consulting ordinarily gives you no mechanics' lien (California's design-professional lien is the exception), so ask for an advance or retainer, milestone billing and a purchase order before work starts.
• If you work alone, New York's Freelance Isn't Free Act covers you even through a one-person LLC, from $800 with the same client over 120 days, and California's Freelance Worker Protection Act starts at $250 on the same 120-day basis. Both require a written contract and payment by the agreed date or the applicable 30-day default, subject to exclusions (N.Y. Gen. Bus. Law 1410 and 1412; Cal. Bus. & Prof. Code 18101). As of Oct 2026.
• Refuse insurance demands beyond the limit you have priced, and control terms inconsistent with independent delivery.
• Match your E&O tail to the written-contract limitation period: four years in California and Texas, six in New York and five in Florida. As of Oct 2026.

Who owns the work

• Assign named deliverables on payment, and license your pre-existing materials.
• In California, a work-made-for-hire clause signed with an individual can make that person an employee for workers' compensation and unemployment insurance. Use assignment language instead.
• A confidentiality agreement with an individual contractor needs the federal trade-secret whistleblower notice (18 U.S.C. 1833(b)).

Noncompetes: the state decides

• California voids covered noncompetes (Bus. & Prof. Code 16600).
• Minnesota bans them for employees and independent contractors (Stat. 181.988, from July 1, 2023).
• Wyoming generally voids covenants entered on or after July 1, 2025, with statutory exceptions such as a business sale, trade secrets and executive or management personnel (W.S. 1-23-108).
• Washington voids a noncompete below an earnings threshold: As of Oct 2026, $317,147.09 for independent contractors and $126,858.83 for employees, with a near-total ban scheduled from June 30, 2027 (RCW 49.62).
• Texas enforces a reasonable covenant ancillary to an otherwise enforceable agreement (Tex. Bus. & Com. Code 15.50), Florida enforces under Fla. Stat. 542.335 with statutory presumptions, and New York applies reasonableness.
• The FTC's nationwide noncompete rule is not law: it was set aside in August 2024, and the FTC dropped its appeals on September 5, 2025. As of Oct 2026.

Neither the industry-wide ban nor a reflex fallback to named clients or 12 months is safe: the restriction has to fit the actual interest, and in some states it is void anyway.

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