(i) Carve-out for essential obligations
In many operational contracts where intellectual property rights are at stake, the limitation of liability clause contains a carve-out for breach of the confidentiality provision and for IP infringement claims. A very common (and, between equal parties, often accepted) reference is:
Except in case of a breach of Section [Warranty on no IP-infringement] or Article [Confidentiality clause], Seller’s liability shall in no event exceed the amounts actually received by Seller under this Agreement during the 12-months’ period preceding the event or circumstances giving rise to a claim.
In a good commercial relationship, buyers expect that, for determining a cap on liability, other supplies between the parties and between their affiliated companies are also taken into account (i.e. the limitation should not merely refer to amounts paid under the agreement, let alone under a single purchase order).