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Law/Patents - Law: Contract(s) | | English term or phrase: exclusive remedies | What are "exclusive remedies"?
Does the word mean something like "the sole remedies"? Or does it mean some mysterious remedy by which some liability is discharged?
The agreement contains nothing that is denoted as "exclusive remedy".
Sample Paragraph:
In no event shall XXX be liable for the cost of procurement of substitute goods or services or
for aggregate liability arising out of or relating to this agreement or the use and support of the software exceeding the lesser of the amount of fees paid by distributor to XXX in connection with the specific agreement from which the claim arises, or the amount of fees paid by YYY to XXX under this agreement during the nine (9) month period preceding the first act that gave rise to liability. The foregoing limitations of liability are independent of any exclusive remedies for breach of warranty set forth in this agreement, and shall survive and apply notwithstanding the failure of essential purpose of any remedies specified herein. |
| MatsumiKudoZ activityQuestions: 12 (none open) Answers: 0
| Local time: 10:16
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| | English translation:Issues that cannot be claimed for / Fail safe clause | Explanation:
From the link:
"Sometimes, employers use exclusive remedies clauses; mainly to define (in a limiting way) the contractor’s opportunities to claim. The case most often cited on the point is Strachan & Henshaw Limited v Stein Industrie (UK) Limited and GEC Alsthom Limited, where the court said:
“…in a complex contract of this sort there would be a danger of claims being made on the basis of alleged implied terms or of alleged misrepresentation as well as damages claims for breaches of alleged contractual obligations incidental to the main contractual obligations under the Contract. The parties could not possibly foresee and provide for all the various claims that might be made in connection with or arising under the Contract. So the commercial sense in providing expressly for the claims they intended to be allowed and in simply excluding all possible claims other than those for which specific provision was made seems to me clear enough.”
Exclusive Remedy definition:
"A procedure in which the employer has absolute liability for the injuries incurred by the employee and the employee does not have the right to sue the employer for those injuries suffered."
Read more: "http://www.answers.com/topic/exclusive-remedy#ixzz1ceqIcIz9&... or http://definitions.uslegal.com/e/exclusive-remedy-rule/
Any "exclusive remedy" clause just acts as a fail safe clause for the employer/party to prevent being sued to high heaven (or excessive claims made).
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Note added at 3 hrs (2011-11-03 16:05:37 GMT)
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In your case, (in the sentence above) what is being stressed is the separation of the limitation of liability clause(s) from the exclusive remedy clause (as they both serve as liability/damage caps - http://www.scl.org/site.aspx?i=ed18326). The sentence is emphasing the independence of one from the other. (probably so that legally, they can't be lumped together or interpreted that way). |
| Selected response from:
 Ty Kendall
United Kingdom
Local time: 02:16
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