Limitation of Liability - Wording

[martincymru]

Just received this. Should I accept?

" The aggregate liability of the Consultant under this agreement, or otherwise in connection with the services to be performed hereunder, shall in no event exceed 100% of the total value of the contract hereunder. The preceding limitation shall not apply to liability arising as a result of the Consultant's fraud or willful [note bad spelling!] misconduct in performance of the services hereunder".

The term "or otherwise" worries me.

[PNGMK]

shit yeah - that sort of weasle word can definitely be an issue

[Strong Eagle]

"Or otherwise"... I wouldn't accept it. In contracts we signed, we acknowledged that there could be additional governing documents by including language in the master agreement which states:

The Agreement entered into between the parties will consist of the following documents collectively referred to as “the Agreement”

A. This Formal Instrument of Agreement
B. The General Conditions
C. The Statement of Work
D. Confidentiality Deed, Security Statement & Policy Commitment to Ethical Conduct attached hereto

In the event of any inconsistency between the various documents referred to above the terms and conditions of the documents shall take precedence according to the descending order shown above.

Sounds to me like some twit inserted the "or otherwise" on a whim.

But also, liability for what? I signed contracts with indemnity clauses in them, were I cause physical damage or death due to my negligence, that software and methodologies used were mine to use, and that I was responsible for my own taxes. My agreements also said, "Neither party to this Agreement shall be liable to the other for consequential loss."

If they are trying to imply that you have to pay for a failed project, I wouldn't touch it. Too many factors exist in any complex project that are out of your control. If I screw the project up, they can terminate me, they can refuse to pay me, but they can't assign the costs of a failed project to me.

[martincymru]

Update (by OP):

Reply from potential Client:

"...We are unable to delete, “or otherwise” in Clause 14 as requested. This phrase, “or otherwise in connection…” refers to possible amendments or variations which will be subject to the clause on limitation on liability....".

Seems reasonable to me. What do you think?

[Strong Eagle]

Update (by OP):

Reply from potential Client:

"...We are unable to delete, “or otherwise” in Clause 14 as requested. This phrase, “or otherwise in connection…” refers to possible amendments or variations which will be subject to the clause on limitation on liability....".

Seems reasonable to me. What do you think?

So long as it is the terms and definitions section, and/or language that excludes everything else but the agreement and "variations" as noted above is included.

[PNGMK]

some of this comes down to how you feel about the client.

I know we just don't accept unlimited liability or consequential damages etc with large clients. Smaller ones where we have a personal relationship - maybe. We hate weasel words - that's the stuff that gets everyone confused. Your call. Do you need the work and do you believe the client is unlikely to sue willy nilly?