>>>>>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.
>>
>>You're in a negotiation. You can make any changes you want as long as both parties agree and legal requirements are met. I would strike the latter part of that clause and send it back to them. Actually, you could consider striking the whole thing but if you can remove just the latter part then that clause may be favourable for you.
>>
>>Chances are they're using boilerplate provided some time ago by a lawyer. Boilerplate is expressly designed to create legal onus in their favour. It's an unpleasant necessity for you (and/or your lawyer) to review everything and modify it to remove that onus. If they really want your services they will modify it to keep you happy. No need for anyone to take it personally, it's part of doing business.
>>
>
>They are negotiating to add the last sentence into this clause. I don't like the clause but want to know if other people think it's reasonable before I go back to them.

The whole sentence, or just the part I struck through above?

I wouldn't agree to the struck-through portion. It should go without saying that if they want to allege negligence or misconduct on your part they will have to prove it in a court of law, not just on their say-so i.e. not just what they believe to be negligence or misconduct. It should also go without saying that if they make unproven or false allegations against you, you will drop the hammer on them.

I'd emphasize that you comply with best practices in all aspects of your work, and you expect them to as well, and be able to prove it.

If you explicitly include a clause like that, how much work do you want to do nailing it down? Consider this scenario:

- You reach an agreement. In order to work you're given remote access to their environment
- Two days later the entire organization is frozen in a ransomware attack

Forensics will look really hard at your access.

Now, suppose forensics determines your account was used to infiltrate and infect. They lock you out, so you no longer have access to logs or documentation which might help you. What then?

I can't think of any generic way anyone could protect themselves if a clause like this is explicitly included in the agreement. There are too many possibilities. Maybe someone else has an idea?

As for insurance, I'd be interested to hear if anyone has had any actual experience with making a claim.

>>Depending on your jurisdiction, if someone decides to sue you being behind an incorporated company or LLC may not offer as much protection as you may think or like. If they're serious they will sue you personally as well as your company i.e. allege malfeasance by you in directing the actions of your company.