Liability

Does a contract protect us?

[fashezee]

When developing a website, if our contract stipulates that we are not
responsible for any downtime a site may experience along with any damages
the downtime may cause for reasons above and beyond our control,
can we still be held responsible?

We had a lawyer come up with a contract that stipulated the above clause,
however when shown to our client's lawyer, he mentioned we were part
responsible should anything happen to the site.

We do not host the sites, we resell the service via a host company.
If the host company servers suffer a substantial amount of downtime,
do my clients have the right to come and seek $ for damages?

[Mardi_Gras]

>do my clients have the right to come and seek $ for damages?

Well, they can seek whatever they want - and if they want to sue you they can do that as well. Whether or not they have a valid legal claim would be for the courts to decide.

Their attorney has already indicated to you that they consider you to have some liability in case of a problem. You have been warned. How you choose to proceed is a decision you should make with the input of competent legal counsel - which I am not.

[fashezee]

competent legal counsel - which I am not.

I'm no lawyer either. It's hard to find good sound legal advise
regarding our industry, no one seems to know whats going on or
what laws apply; in my neighborhood anyways.

[transactiongeek]

IANAL(I am not a lawyer), but you might want to see if the hosting company can indemnify you. It doesn't completely remove, but it does reduce your exposure.

[percentages]

fashezee,

My advice is that your contract should state the maximum amount of liability you will accept along with all the usual disclaimers and adjudication terms,

I am told (by my Attorneys) that most courts will NOT respect "zero liability", but if a contract exists where liability is predetermined to a maximum amount then the courts find it hard to overcome this issue. Both parties have accepted a maximum settlement amount at day one and courts tend to respect that.

My contracts state that we will be liable for a maximum of one month of fees paid (we design, host and promote......have all sorts of liability).

If things turn sour then refunding a month's worth of fees is bound to be much less painful than getting into legal action.

My Attorney's (I use H&K) advised against using a "zero liability" clause as it would probably not stand up in court....so I suggest you pick a number you feel comfortable with, but not one which looks like a nonsense for nuisance figure.

I'm yet to test any of this in practice as no client has ever attempted to claim damages or a refund......but it sounds like good advice in principle and I have the utmost faith in my Attorneys. :)

[fashezee]

so I suggest you pick a number you feel comfortable with, but not one which looks like a nonsense for nuisance figure.

Very interesting, never thought of it that way.