What does disclaimer mean 1

Limitation of Liability: Clauses in Project Contracts - Part 1
Limitation of Liability: Clauses in Project Contracts - Part 1

Limitations of liability are only partially legally permissible

Limitations of liability or exclusions of liability in terms and conditions (general terms and conditions) or project contracts should not hide the IT experts from the fact that these are only partially legally permissible - and therefore do not actually apply to all claims for damages by the customer (client).

Caution, general terms and conditions law

Experts assume that 70% of the terms and conditions used ineffective are. The general terms and conditions law is regulated in §§ 305 ff. BGB. The provisions are intended to prevent the user of the terms and conditions from unreasonably disadvantaging the contractual partner. The general terms and conditions law already applies if the intention is to use the same contract in a few cases. Individual contracts tend to be the exception

Here are a few examples of effective liability limitations

  • Limitation of liability with regard to secondary contractual obligations
  • Limitation of liability to the typically foreseeable damage when the contract was concluded
  • Exclusion of liability for force majeure

But be careful - as soon as part of a clause is ineffective, the entire clause is ineffective. There is no validity-retaining reduction!

Examples of ineffective regulations

  • Exclusion of liability in the event of injury to life, body or health
  • surprising or non-transparent clauses
  • Exclusions of liability for willful or grossly negligent behavior
    • in the case of simple negligence for the violation of so-called "cardinal obligations"
    • for foreseeable damage typical of the contract
    • which represent an “unreasonable disadvantage of the contractual partner” for other reasons

       

The following table shows the possibilities of limitation of liability once again in a simplified manner:

Limitation of Liability
IT liability coverage
Intent (1)

Yes

inadmissible

No*

gross negligence (2)

Yes

inadmissible

Yes

simple or slight negligence (3)

Yes

  • not permitted for cardinal obligations (4)
  • not permitted for foreseeable damage typical of the contract
  • Inadmissible as unreasonable disadvantage

Yes

  

permissible for other duties

Yes

Notes on the table

(1) With Intent acts, who knows that he is acting unlawfully and who wants to. According to Section 276 (3) of the German Civil Code, the debtor cannot be exempted from deliberate action in advance. Acts in accordance with Section 276 (2) of the German Civil Code carelesswho neglects the due diligence required in (business) dealings. The distinction between simple and gross negligence, as is regularly made in liability limitation agreements in terms and conditions or in insurance conditions, is not defined by law, but has developed from case law:

(2) Grossly negligent acts who violate the due diligence required in (business) dealings to a particularly serious extent.

(3) From (simple / light) negligence one speaks when the debtor could have foreseen and avoided the occurrence of the damage according to objective standards.

(4) Cardinal Duties are particularly important obligations that are of considerable importance in order to achieve the purpose of the contract.

As a result, liability can only be relatively certain in the area of ​​simply negligent breaches of duty or in the case of breaches of cardinal obligations only to the amount of typically predictable Limit damage.

Relevant: Which party limits liability?

Should the client / customer provide for maximum liability sums for slightly negligent violations in his own model or framework contracts or general terms and conditions, the contractor (IT expert) can assume that this agreement also applies to the important contractual obligations Height are limited.

Therefore, from a liability point of view, it is not entirely irrelevant from which party (customer or IT freelancer) the terms and conditions used originate.

  • If, for example, software maintenance contracts are concluded with the customer in which the IT service provider wants to limit the liability to the customer as much as possible => see restrictions according to the table
  • or does the freelancer accept an IT project on the basis of a framework contract (general terms and conditions) and, if applicable, an individual project contract from the agent, in which the client's liability for certain areas has been limited.

The exemption from liability in practice

The following clause of a software and hardware maintenance contract is intended as an example, the purpose of which is to support a network as well as regular updates and security checks of the security systems (firewalls, virus scanners, etc.):

“(...) the contractor is not liable for damage to software or hardware or financial losses resulting from his performance, unless these are based on grossly negligent or willful action on the part of the contractor, his vicarious agents or his legal representatives. The contractor is fully liable for damage to health, body or life. He is also liable for the breach of obligations that are of particular importance to achieve the purpose of the contract (cardinal obligations), liability is limited to the amount of typically foreseeable errors (...). "

Now this damage occurs: A virus penetrates the customer's network and paralyzes certain areas.

Does the disclaimer apply here - is the IT service provider exempt from liability?

The answer is simple: No. Because even if the contractor only (slightly) negligently infected the customer's system with a virus, the disclaimer does not apply. The virus-free system is certainly a particularly important requirement - in other words Cardinal obligation - the concluded contract.

Liability limited to “typically foreseeable damage”

However, the amount of liability is on the typically foreseeable damage limited. And that means: It is limited to the costs that can be expected under normal circumstances and that must be expected in an “average” claim of this type.

In the second part of this series, “Liability clauses in project contracts: coverage amounts”, you can read about the amounts of coverage such an IT liability insurance should have in order to be adapted to the needs of IT service providers.