Limitation of Liability Email Templates

[Name], Thank you for sending over the draft NDA. We have completed our review and need to discuss Section [X] regarding limitation of liability. The current cap of [$X] does not provide meaningful protection given the nature of confidential information we will be sharing. Our [proprietary technology/trade secrets/business plans/customer data] represents substantial value, and the potential damages from unauthorized disclosure significantly exceed the proposed cap. We propose increasing the liability cap to [$Y], which we believe is more proportionate to the actual risk profile. For context: - The information we are sharing represents [describe value: $Z in R&D investment / Y years of development / core competitive advantage] - Industry standard for NDAs involving this type of information typically includes caps of [$range] - A breach could result in [specific harms: loss of competitive position, customer defections, regulatory exposure] Alternatively, we would accept a formula-based cap tied to any future commercial relationship, such as [X] times fees paid, with a floor of [$minimum]. We are committed to reaching agreement and flexible on the specific structure, but the current cap level is below what we can accept. Please let us know your thoughts. Best regards, [Your Name]

[Name], Following up on our discussion of the limitation of liability clause, we have an additional request regarding carve-outs. We understand the business rationale for liability caps and can accept a cap for ordinary breaches. However, we believe there should be no cap on liability for egregious conduct. The current draft applies the [$X] cap to all claims, including those arising from gross negligence or intentional misconduct. We propose adding the following carve-outs to Section [X]: "The limitations set forth in this Section shall not apply to: (a) Willful or intentional breaches of confidentiality obligations; (b) Gross negligence in the handling, storage, or transmission of Confidential Information; (c) Unauthorized disclosure of Confidential Information to competitors; (d) Failure to implement reasonable security measures as required by this Agreement; or (e) Fraud or criminal conduct." The rationale is straightforward: a liability cap is intended to allocate risk for honest mistakes and ordinary negligence. It should not create a ceiling that effectively prices intentional misconduct. No party should be able to deliberately breach an NDA and know their maximum exposure in advance. We believe these carve-outs are fair and should be mutual. Please confirm you can accept this revision. Best regards, [Your Name]

[Name], We need to discuss Section [X] regarding the exclusion of consequential damages. As currently drafted, neither party may recover "indirect, incidental, consequential, special, or punitive damages, including lost profits." This exclusion fundamentally undermines the protection this NDA is supposed to provide. The reality is that harm from confidential information disclosure is almost entirely consequential in nature: - Lost business opportunities when competitors learn our strategy - Lost customers who defect after learning our pricing or terms - Lost competitive advantage when our technology becomes known - Reputational harm affecting future business development Direct damages from an NDA breach are minimal - perhaps the cost of an investigation. If consequential damages are excluded, the NDA provides almost no practical protection. We propose one of the following modifications: Option 1: Remove the consequential damages exclusion entirely for confidentiality breaches: "The exclusion of consequential damages shall not apply to any breach of confidentiality obligations under this Agreement." Option 2: Specifically preserve lost profits and competitive harm: "Notwithstanding the foregoing, either party may recover lost profits, lost business opportunities, and competitive harm resulting from the other party's breach of confidentiality obligations." Option 3: Apply a separate, higher cap to consequential damages: "Consequential damages for breach of confidentiality shall be subject to a separate cap of [$X], in addition to the general liability cap." We are flexible on the structure but need meaningful protection for the actual harms that could result from disclosure. Please let us know which approach works best for you. Best regards, [Your Name]

[Name], We have identified a significant issue with the limitation of liability in Section [X] that we need to address before we can proceed. As currently drafted, the limitation of liability protects only [receiving party/your company]. Specifically: - The [$X] cap applies only to [receiving party's] liability - The consequential damages exclusion benefits only [receiving party] - Carve-outs from the limitation apply only when [disclosing party] is the liable party This creates a fundamental imbalance. While we are the primary discloser in this relationship, the NDA is structured as a mutual agreement, and there may be circumstances where we receive your confidential information as well. Even if information flow is primarily one-directional, there is no justification for liability protections that run only one way. We require the limitation of liability to be fully mutual: 1. The liability cap must apply equally to both parties 2. The consequential damages exclusion must benefit both parties 3. Any carve-outs must apply symmetrically This is a standard request and reflects basic fairness in commercial agreements. We expect the same contractual protections that you are seeking for yourselves. Please revise Section [X] to make the limitations mutual, and confirm when we can expect the updated draft. Best regards, [Your Name]