However, where the cost of the goods is insignificant, this may subsequently be found to be unconscionable. Other contracts seek to limit direct damages to the cost of the goods or the cost of services provided within the prior twelve month period. Beware this cap in software service contracts, where the bulk of the cost of services are provided upon installation. Twelve months later, the value of the direct damages will be dramatically less. Where the buyer does agree to a cap on the direct damages, it should ensure that the cap is not inclusive of legal fees.
Legal fees can obviously far exceed the amount of the cap.
Secondly, the buyer should exclude any limitation for intentional acts or negligence of the seller. Take, for example, the software vendor who has access to the buyer's facilities. If the vendor is unwilling to accept responsibility for negligence, the buyer would thus have to perform its own security check on the vendor's personnel. In some circumstances, even consequential damages should not be excluded from the vendor's liability. The buyer may be relying on representations of the seller for which a more narrow limitation of liability clause is appropriate.