Re: Q: Developer hoses server but demands payment. Should I pay?

From: Juhan Leemet (juhan_at_logicognosis.com)
Date: 12/10/04 

Date: Fri, 10 Dec 2004 19:32:20 -0300

On Sat, 04 Dec 2004 18:56:20 -0800, Mike Cox wrote:
> R Gardner wrote:
>> A network admin vendor I hired to restore a mirrored drive on a
>> production server recently hosed the box (without an intact backup)
>> instead of restoring the mirror. He's demanding the last 20% payment
>> for his hours on the project even though we had significant data loss
>> and restoration work that had to be done internally. Is he right that
>> he deserves to be paid the remainder of his uncompensated hours, or am
>> I right that the damage he caused is deductable? There was no advance
>> agreement.
>
> You have to pay if you hired him as an employee.
>
> If you hired a company, that was not on your payroll, then I think you can
> try and sue him for damages IF there was negligence I think. Why don't you
> ask in a lawyers newsgroup?

Asking a lawyer is probably the best advice.

In a somewhat similar situation, I was given some legal advice that said
(summarized): "just because the other party did not fulfill their
obligations does not relieve you from yours". IOW, if your contract
specifically said something like "payment witheld until all deliverables
completed and demonstrated working", or some such, then you can refuse to
pay. If not, you may still have to pay. Usually, it is best to have
"progress payments, against milestones" with a holdback (10%? 15%?) to
make sure there is support during a warrantee period, etc. (ask a lawyer)

In your case, you might have to both pay him what you agreed to pay AND
sue him for damages (maybe including consequential damages? lost business?
other opportunity loss?). OTOH, you may be able to negotiate a settlement
just by threatening to sue? Definitely ask a lawyer for some advice.

BTW, IANAL 

-- 
Juhan Leemet
Logicognosis, Inc.

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