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Question

Notwithstanding any implication of this Agreement to the contrary other than as stated in Section 3.12 above, and to the maximum extent permitted by applicable law, under no circumstances will PARTY A (or its subcontractors) be liable in contract, tort (including but not limited to negligence) or otherwise for any of the following categories of damages, costs, losses, or expenses: (a) loss of profit, loss of revenue, loss of goodwill, loss of use, loss of opportunity, down time costs, and the costs of maintaining financing (in all cases, whether direct, indirect, or consequential); or (b) indirect or consequential damages, costs, losses, or expenses of whatever nature, incurred by PARTY B or its affiliates, arising from or in connection with this Agreement, the Project, or the Work (whether foreseeable or not) , and PARTY B hereby releases, indemnifies and holds PARTY A (and its subcontractors) harmless there from and waives the right to exercise any remedy available to it against PART

Submitted: 438 days and 15 hours ago.
Category: Legal
Value: $30
Status: CLOSED
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Optional Information

Atlanta, Georgia

Already Tried:
What exactly does this clause release a service provider from: Notwithstanding any implication of this Agreement to the contrary other than as stated in Section 3.12 above, and to the maximum extent permitted by applicable law, under no circumstances will PARTY A (or its subcontractors) be liable in contract, tort (including but not limited to negligence) or otherwise for any of the following categories of damages, costs, losses, or expenses: (a) loss of profit, loss of revenue, loss of goodwill, loss of use, loss of opportunity, down time costs, and the costs of maintaining financing (in all cases, whether direct, indirect, or consequential); or (b) indirect or consequential damages, costs, losses, or expenses of whatever nature, incurred by PARTY B or its affiliates, arising from or in connection with this Agreement, the Project, or the Work (whether foreseeable or not) , and PARTY B hereby releases, indemnifies and holds PARTY A (and its subcontractors) harmless there from and waives the right to exercise any remedy available to it against PARTY A (and its subcontractors) in respect of any such damages, costs, losses, or expenses.

Posted by JD 1992 438 days and 15 hours ago.

Info Request

Can you provide a little background information to put this into context? What is the contract for?

438 days and 15 hours ago.

Reply

It is for a consulting service for developing the Basic Engineering Package for a plant build; the BEP is only Phase 2; the construction will be in another phase. The company would be providing the drawings and documentation for all permits and for creating the Bid package for choosing the actual GC contractors.

Posted by JD 1992 438 days and 15 hours ago.

Info Request

The company that is providing the drawings and documentation has this clause in their contract?

438 days and 15 hours ago.

Reply

Yes - they actually want to insert; I have proposed:

 

 

3.22 PARTY A's remedies specified in this Agreement are PARTY A's sole and exclusive remedies for PARTY B's liabilities arising out of or in connection with the Services and this Agreement which remedies shall in no event go over the releases from liability and limitations on liability for PARTY B expressed in this Agreement.

Posted by JD 1992 438 days and 15 hours ago.

Info Request

And so that we're on the same page, who are you calling party A? I assume it is the contractor?

438 days and 15 hours ago.

Reply

PARTY A would be us the customer, PARTY B is the consulting firm

Posted by JD 1992 438 days and 15 hours ago.

Answer

OKay. Most people miscommunicate when they are dealing with hypotheticals so I wanted to be clear.

The first example in the original question provides more protection to PARTY A. That is why I asaumed PARTY A was the consulting company wanting to insert the clause. They are basically providing a full waiver of any rights to go against PARTY A. It sounds like they are trying to protect themselves but don't understand what the clause actually says.

Thank you for allowing me to assist you. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. Please remember that we can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions. Please be aware that my answer is not legal advice, it is merely information and no attorney client relationship has been formed. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR TEXAS ATTY” in the subject line and I will pick up the next time I am online.


438 days and 15 hours ago.

Reply

So what you are saying is that the beow is protecting Party A (us the customer?) It reads to me like it is the other way around. Can you just confirm that to me; I am confused!) THX!

3.22 Notwithstanding any implication of this Agreement to the contrary other than as stated in Section 3.12 above, and to the maximum extent permitted by applicable law, under no circumstances will PARTY B (or its subcontractors) be liable in contract, tort (including but not limited to negligence) or otherwise for any of the following categories of damages, costs, losses, or expenses: (a) loss of profit, loss of revenue, loss of goodwill, loss of use, loss of opportunity, down time costs, and the costs of maintaining financing (in all cases, whether direct, indirect, or consequential); or (b) indirect or consequential damages, costs, losses, or expenses of whatever nature, incurred by PARTY A or its affiliates, arising from or in connection with this Agreement, the Project, or the Work (whether foreseeable or not) , and PARTY A hereby releases, indemnifies and holds PARTY B (and its subcontractors) harmless there from and waives the right to exercise any remedy available to it against PARTY B (and its subcontractors) in respect of any such damages, costs, losses, or expenses.

Posted by JD 1992 438 days and 15 hours ago.

Info Request

I think we're miscommunicating somewhere. The provision you put in the last reply is opposite of the one you put in the original question.

438 days and 15 hours ago.

Reply

I copied it and added to send back to them exactly like they were requesting - SORRY - so the answer is the opposite then?

Accepted Answer

The first example favors the company, the second example favors the ones developing the plans and basically waives all causes of action that you could bring against them or anyone else. It is not a good clause if you are trying to hire them to do work for you.

Thank you for allowing me to assist you. I believe I have answered all of the questions you asked so I would request that you please click the ACCEPT button so I receive credit for my work and leave feedback if you have a chance. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. Please remember that we can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions. Please be aware that my answer is not legal advice, it is merely information and no attorney client relationship has been formed. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR TEXAS ATTY” in the subject line and I will pick up the next time I am online.

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Expert: JD 1992
Pos. Feedback: 98.8 %
Accepts: 
Answered: 9/10/2008

Attorney

Active attorney since 1992

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