59.1-508.3 - Contractual modification of remedy. - Virginia Statutes

§ 59.1-508.3. Contractual modification of remedy.

(a) Except as otherwise provided in this section and in § 59.1-508.4:

(1) an agreement may provide for remedies in addition to or in substitutionfor those provided in this chapter and may limit or alter the measure ofdamages recoverable under this chapter or a party's other remedies under thischapter, such as by precluding a party's right to cancel for breach ofcontract, limiting remedies to returning or delivering copies and repaymentof the contract fee, or limiting remedies to repair or replacement of thenonconforming copies; and

(2) resort to a contractual remedy is optional unless the remedy is expresslyagreed to be exclusive, in which case it is the sole remedy.

(b) Subject to subsection (c), if performance of an exclusive or limitedremedy causes the remedy to fail of its essential purpose, the aggrievedparty may pursue other remedies under this chapter.

(c) Failure or unconscionability of an agreed exclusive or limited remedymakes a term disclaiming or limiting consequential or incidental damagesunenforceable unless the agreement expressly makes the disclaimer orlimitation independent of the agreed remedy.

(d) Consequential damages and incidental damages may be excluded or limitedby agreement unless the exclusion or limitation is unconscionable. Exclusionor limitation of consequential damages for personal injury in a consumercontract for a computer program that is subject to this chapter and iscontained in consumer goods is prima facie unconscionable, but exclusion orlimitation of damages for a commercial loss is not unconscionable.

(2000, cc. 101, 996.)