How to Ensure Contract Success Using Limitations of Liability Clauses

By Shaily Soni – January 2024

Limitation of liability clauses, or liability caps, are crucial components of many business contracts. They can help manage risk by setting a maximum amount that one party, typically the service provider or supplier, must pay the other in case of a breach of contract, negligence, or other liabilities. Understanding these clauses is essential for both parties in a contract.

What are Limitation of Liability Clauses?

A limitation of liability clause is a contractual provision that limits the amount of exposure a company faces in the event of a claim or lawsuit. The clause effectively caps the amount that can be claimed for loss or damage at a pre-agreed level. These provisions allow companies to control their potential risk and provide a degree of certainty regarding their maximum level of financial exposure.

For instance, consider a software provider, XYZ, that supplies a software solution to a client, ABC Corp. The contract between XYZ and ABC Corp might include a limitation of liability clause stating that XYZ’s total liability in the event of any claim against ABC relating to their use or reliance on XYZ’s software will not exceed the total fees paid by ABC Corp to XYZ over the previous 12 months.

Importance of Limitation of Liability Clauses

The importance of limitation of liability clauses cannot be overstated. They provide a means for businesses to manage and mitigate risk. Companies can more accurately predict potential liability and obtain appropriate insurance coverage by setting a cap on potential damages.

Furthermore, in many cases, businesses may not enter into a contract without a limitation of liability clause, particularly in industries with a high risk of significant damages arising from a breach of contract or negligence, where those clauses are necessary. These sectors often involve complex processes, high-value products or services, or substantial reliance on one party’s performance. Examples include construction, software development, logistics, healthcare, and others. In these high-risk industries, the potential financial impact of a breach of contract or negligence can be enormous.

For instance, consider a construction company that fails to complete a project on time, or a software provider whose product contains a serious error or a vulnerability that exposes its customers to hackers. The consequences of these failures can result in significant financial losses for the other party involved. In such scenarios, the risk of uncapped liability could be prohibitively high, deterring companies from entering into contracts and entrepreneurs from starting or forming such a risky company. This is where limitation of liability clauses come into play. They offer protection by capping the liability to a pre-agreed amount, making the risk more manageable and predictable. This predictability can increase a company’s willingness to enter into contracts and conduct business, knowing they are protected against unlimited losses. It can also ensure that companies can innovate even in potentially high-risk ways.

However, it’s important to note that limitation of liability clauses must be carefully drafted and reviewed. While they can provide a valuable layer of protection, they must be reasonable, fair, and proportionate to be enforceable. If a clause is deemed to be unfair or excessively limiting, a court may not uphold it. Therefore, it is highly advisable for businesses to seek expert legal advice when drafting and negotiating these clauses.

Types of Limitation of Liability Clauses

Capping Liability: This type of clause sets a maximum financial amount that a party can recover in the event of a breach of contract or negligence. The cap may be a specific monetary amount or linked to other factors, such as the contract price or insurance coverage.

For instance, in a contract between a software development company, SoftwareCo, and a client, ClientCo, there might be a clause like the following:

“SoftwareCo’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the price paid for the Software.”

Here, the liability of SoftwareCo, in the event of any breach of contract or negligence, is capped at the amount ClientCo paid for the software. This means that no matter how significant the damages ClientCo might suffer due to SoftwareCo’s actions, SoftwareCo’s liability will not exceed the amount they collected from ClientCo for the software. ClientCo must, therefore, have its own appropriate insurance and take care to ensure that issues don’t arise that cause high liability.  This forces diligence on the client while at the same time ensuring that the software company produces a high-quality product because if they don’t, no client will want to take on the risk of their potentially faulty product.

Excluding Types of Loss: This type of clause excludes certain types of losses from recovery. For instance, a contract may stipulate that a party is not liable for indirect or consequential losses, such as loss of profit, business, or opportunity.

For instance, in the same above-mentioned instance, you might find a clause like this:

“Neither party shall be liable to the other for any indirect, special or consequential loss or damage, loss of profit, revenue or goodwill arising from breach of contract, negligence, or any other cause of action.”

In this case, the clause excludes certain types of losses from recovery – particularly indirect, special, or consequential losses (which is fancy legal language for damages that aren’t directly related to the issue in the software but wouldn’t have happened unless it was there). This means that neither SoftwareCo nor ClientCo can be held liable by the other for these types of losses, regardless of the cause of those losses. This could include things like lost profits if the software doesn’t work as expected and causes ClientCo to lose business.

Legal Considerations

While limitation of liability clauses are generally enforceable, there are legal considerations to consider. Courts may not uphold a limitation of liability clause if it is deemed to be “unconscionable” or if it would result in an injustice. Additionally, certain types of liability, such as liability for death or personal injury caused by negligence, cannot be limited by contract.

Final Thoughts

Limitation of liability clauses are a vital tool for managing risk in commercial contracts. However, they need to be carefully drafted to ensure they are enforceable and provide the intended protection. It is advisable to seek legal counsel when drafting or negotiating such clauses.

The professionals at Navvee have extensive experience in drafting and negotiating limitation of liability clauses. We understand the balance between managing risk and maintaining a fair and equitable contract. Whether you are a service provider seeking to limit your liability or a client wanting to ensure sufficient protection, we are here to guide you through the process.

Expert Guidance Makes All the Difference

At Navvee, we’re more than just attorneys; we’re your strategic partners in achieving your business goals. Whether you’re a software provider seeking to limit your liability or a client wanting to ensure sufficient protection, we’re here to guide you every step of the way. Navigating through the complexities of limitation of liability clauses can be challenging, but it doesn’t have to be when you have expert guidance.

Navvee has extensive experience in business transactions, including the drafting and negotiating limitation of liability clauses. We strive to understand our client’s specific needs and objectives related to the transaction and render assistance in understanding the implications of the limitation of liability clauses and other aspects of the agreement. We’re committed to standing by you throughout the process, ensuring a smooth and successful deal. Whether you’re an established corporation or a growing startup, understanding and properly implementing limitation of liability clauses can significantly affect your business’s risk exposure.

Feel free to contact us to discuss these issues and any other concerns you may have. We’re here to guide you every step of the way.


About the author: Shaily Soni is a legal associate with Navvee, a business advisory and law firm based in Las Vegas, Nevada. Shaily obtained her law degree from India in 2016 and her LLM in Business and Transactional laws from USC Gould School of Law, Los Angeles, California. To complete the migration of her law practice to the United States, Shaily has joined the team at Navvee and will be sitting for the California Bar Exam in 2024.

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Disclaimer: The information provided in this article is for general informational purposes only and should not be taken as legal advice. The contents of this article do not establish an attorney-client relationship, and the reader should not rely on the information provided herein for any legal matters. If the reader has specific legal questions or concerns regarding their situation, they should consult a qualified attorney who can provide advice tailored to their circumstances. The author and publisher of this article do not assume any liability for actions taken or not taken based on the information contained in this article.

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