Exclusion of liability

Force majeure

Intermediaries liability

Supplier Contracts

Where liability stems from an underlying contract the terms of that contract should prevail over the provisions of the Electronic Data Interchange agreement.

Exclusion of liability

The principle is that parties to an agreement should be held responsible for their acts and omissions. Also the risks should be born by the party responsible according to the law applicable. However parties might want to limit (by introducing a maximum amount) or exclude liabilities. In this clause special, incidental, indirect or consequential damages liability in connection with the agreement have been excluded.

Force majeure

An exception to liability is made in the case of what is commonly known as "Force Majeure". The concept of force majeure included in this clause is in line with the concept developed by the United Nations Convention on Contracts for the International Sale of Goods or Vienna Convention of 11 April 1980, and, in the absence of uniform national law on this point, provides a definition which the parties may expand, if they wish, by citing various situations in which liability may be exempted.

Intermediaries liability

The parties might use a third party (also called Value Added Network Services) to provide services such as logging, or encryption. Liability for the actions of a third party is included in many agreements and generally accepted since often the third party will effectively be acting as an agent of the user. Moreover, it is the party who will use the service of a third party provider and who has the contractual relationship with the service provider who will be in the best position to sue the service provider in the case where its liability could be engaged. A clause to that extend could be introduced here.

Where one party imposes the use of a particular intermediary on the other, it seems fair that the party who imposes such use should be responsible for damages which result from using that intermediary instead of the one who has to make use of it.

Supplier Contracts

The Electronic Data Interchange agreement fits within a complex of relations enabling the Electronic Data Interchange involving many parties, such as a Telephone Company or a supplier of Value Added Network Services. Contracts with these suppliers, not chosen or imposed by either party to the Electronic Data Interchange agreement might exclude liabilities.

• This clause shall not apply in cases where Parties have agreed on an underlying contract and the liability results from such contract.
• Except for wilful misconduct or gross negligence, no Party to this Agreement shall be liable for any special, incidental, indirect or consequential damages caused by a failure to perform its obligations under this Agreement. Except for wilful misconduct or gross negligence, liability for any direct damages incurred is limited to the maximum amount of [insert amount and currency].
• No Party to this Agreement shall be liable for any loss or damage suffered by the other Party caused by any delay or failure to perform in accordance with the provisions of this Agreement, where such delay or failure is caused by an impediment beyond that Party's control and which could not reasonably be expected to be taken into account at the time of conclusion of the Agreement or the consequences of which could not be avoided or overcome. This provision shall not relieve liability for any matter which constitutes a breach of the Clauses on SECURITY OR PROTECTION OF IN CONFIDENCE INFORMATION.
• If a Party requires another Party to use the services of an intermediary to perform the transmission, logging or processing of an Electronic Data Interchange Message, the Party who required such use shall be liable to the other Party for damage arising directly from that intermediary's acts, failures or omissions in the provision of said services.