[consulting] Contract > Developer liable for bugs?

[Chuck D'Antonio]

Morbus,

I'm not a lawyer, but I've negotiated many services contracts.

I haven't ever done independent contracting, but in nearly all of the  
company-to-company contracts I've executed in the past have spoken to  
what each party will be liable for and what the limits on that  
liability will be.  Typically I start from the negotiation position of  
no liability, then agree to liability for gross negligence, willful  
misconduct, or fraud, then agree to liability with limits.  The limits  
here are pretty solid with regards to only the amount of time required  
to repair defects.

I'm worried about the first sentence as well, and wonder if the parts  
you've elided make those clearer.  There's no way that fees paid could  
cover your liability in a criminal matter.  I would strike "whether  
criminal or civil" and add language to strengthen the limit --  
something like "The total and aggregate liability for damages will be  
the obligation to correct problem code or to reimburse the fees paid  
for creating the problem code."  This give you and out if, for  
example, it will take you eight months to rewrite a flaw in code that  
took you three days to write.

Chuck D'Antonio
Acquia Professional Services

On Aug 6, 2008, at 6:06 PM, Morbus Iff wrote:

>
> I've been writing software (for hire or otherwise) for ten years or  
> so.
>
> I've never run into an instance, or heard of a case where, once a  
> piece
> of software has been "shipped" or "finished", the developer of that
> software is liable for Things That Go Wrong With It. (I'm exempting
> trojans and viruses, etc. - assume legitimate software here).
>
> Specifically, I've received a contract for a new job which states  
> that I
> (as the Consultant) would be financially liable for any bugs in my
> created Drupal code. I balked that I'd never heard of such a thing
> before and received a revised version which now reads like this:
>
>   "The Consultant will also be responsible for any damage, loss or
>   liability (whether criminal or civil) of or suffered by  the
>   Company ... in connection with any act or omission of the
>   Consultant ... In order to compensate for this, the Consultant
>   agrees to resolve any issue with his code (and his code only)
>   as it arises at no additional cost to the Company. Correcting
>   the problem code is the limit of liability to which the
>   Consultant will be held."
>
> I'm still cautious about this - while the final two lines state that  
> my
> only liability is fixing bugs for free (which is perfectly fine with
> me), the first line still contains scares like "civil" and "criminal
> liability", "damage" and "loss". Being "responsible" for "loss" still
> sounds like I'd pay money if "problem code" caused financial damage.
>
> A few questions:
>
>  * has anyone else seen something like this?
>
>  * has anyone else /agreed/ to something like this?
>
>  * are my worries about financial responsibility accurate?
>
>  * how should I respond to this?
>
> -- 
> Morbus Iff ( and think about the bad things that I didn't do )
> Technical: http://www.oreillynet.com/pub/au/779
> Enjoy: http://www.disobey.com/ and http://www.videounderbelly.com/
> aim: akaMorbus / skype: morbusiff / icq: 2927491 / jabber.org: morbus
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