>>>>Hi,
>>>>do you think that this is a reasonable clause in a contract?
>>>>
>>>>"Consultant's total liability under this Agreement for damages, costs and expenses shall not exceed the total amount of fees paid to Consultant by Client under this Agreement, save where such damages, costs and expenses arises out of the negligence or misconduct of Consultant."
>>>>
>>>>If you were the consultant, would you sign this?
>>>
>>>You do realize that this means that the consultant can be liable for much more than the fees paid to the consultant? The limitation to the amount of fees paid is only if the consultant's liability is NOT due to negligence or misconduct. If there is negligence or misconduct the consultant's liability can be much more - not specified or limited by this clause.
>>
>>Yup, that's why I'm asking if anyone would agree to this.
>
>Frank, I would implement a milestone system of delivery and payments. Each milestone needs to be signed-off on and paid for. Anything which has been signed-off on can no longer be clawed back for any reason. In this way, you get paid for doing the work, they agree the work is acceptable and up to standard, they pay for it, and then that milestone is done and dusted. Next milestone begins. In this way they cannot claim negligence since they signed off on each step. And they cannot claw back what was paid for after sign-off so you cannot be out of pocket for more than the work on the latest milestone section.

This is a funny situation. I have already been doing work for this client for probably 5 years now. The system is up and running for that length of time. They do however get issues when trying to import badly formatted files and this process is time sensitive. I have been trying to get them to pay me a retainer ever since the system went live so that I commit to responding in a timely manner to help them out. Most of their calls are at night or early in the morning to get help. They don't want to pay a retainer but they want me to respond at night and drop any other work I am doing to deal with their issue.

So, I suggested looking at it as an advance payment for a certain number of hours of support which they then renew when the hours are close to being used up. I (foolishly?) sent them a sample contract trying to explain how it would work and they have now come back to me with some changes suggested by their lawyer. Most of the changes I don't have a problem with, but this one is unacceptable to me.