Allocation of Risks

Allocation of Risks

To forestall a possible later challenge by a customer regarding fees and prices stipulated in a contract, a selling party may add a clause confirming that such pricing fairly reflects the agreed-to allocation of risk between the parties and that such allocation forms the “basis of the bargain” underlying the parties’ contractual agreement:

Exemplar C5-1

Customer acknowledges and agrees that the allocation of risks provided in this Agreement are reflected in the Fees and other charges provided hereunder and are reasonable and appropriate under the circumstances.

Exemplar C5-2

Buyer acknowledges and agrees that the disclaimers, exclusions and limitations set forth in this Agreement constitute an essential element of this Agreement in the absence of which: (i) the terms of this Agreement would be substantially different; and (ii) Supplier’s ability to offer and the Buyer’s ability to obtain the Software and/or Services under this Agreement would be impaired.

Exemplar C5-3

Company acknowledges that Contractor has made the Application available at no charge to Company and is willing to enter into this Agreement based upon the disclaimers and limitations specified herein, which allocate the risk and form a basis of the bargain between the parties.

Exemplar C5-4

The parties expressly acknowledge and agree that Licensor has set its prices and entered into this Agreement in reliance upon the limitations of liability specified herein, which allocate the risk between Licensor and Customer and form a basis of the bargain between the parties.

Exemplar C5-5

Customer acknowledges and agrees that Contractor has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.