Q&As

Are the words ‘arising under or in connection with this agreement’ in a limitation of liability clause sufficient to limit liability for infringement of licence rights in an intellectual property licence?

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Published on LexisPSL on 16/01/2017

The following TMT Q&A provides comprehensive and up to date legal information covering:

  • Are the words ‘arising under or in connection with this agreement’ in a limitation of liability clause sufficient to limit liability for infringement of licence rights in an intellectual property licence?

The wording ‘arising under or in connection with' is common in many limitation of liability clauses. Precedent: Software licence—pro-supplier, uses the following formulation:

‘The extent of the Supplier’s liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation or under any indemnity) shall be as set out in this clause 12’.

As the drafting note to that clause explains:

  1. it is important to describe the general scope and extent of any limitations of liability because any ambiguities are construed strictly against the party seeking to rely on them (the contra proferentem rule)

  2. the words ‘under or in connection

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