Limitations on liability
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Limitations on liability Start Comparison
What is the common cap amount (as a percentage of purchase price)?

Frequency/market practice: The buyer will ask for 100% but it is possible to negotiate down for non-fundamental (business) warranties. It ranges from 10-30% for business warranties. It may be higher, depending on the bargaining power of the parties and if there is W&I Insurance. Common to have 100% for fundamental warranties.

Does the cap (and other liability limitations) apply to the whole agreement or just warranties (or particular terms)?
Frequency/market practice: Both are seen, subject to negotiation.
What are the common exceptions to the cap?

Frequency/market practice: Fundamental warranties (e.g., title, capitalization, authority) are often not subject to the cap. Tax and specific areas of concern are often also excepted, sometimes with specific higher caps. Separate caps can be negotiated.

Is a deductible or basket common?

Frequency/market practice: Tipping basket is more common, but both are seen.

Is a de minimis common?
Frequency/market practice: Very common.
How long does seller liability survive?

Frequency/market practice: A general survival of 18-24 months for business warranties is common, subject to negotiation. Longer periods may be required for fundamental warranties (including tax): 3-7 years or the statutory limitation (generally six years for Hong Kong).

Are there any common carve-outs from limitation on seller liability (e.g., fraud, tax, key warranties)?

Frequency/market practice: It is common to carve out fraud. Tax is commonly longer than business warranties.

Is warranty insurance common?

Frequency/market practice: Increasingly common, particularly on financial sponsors exits. It can often be adapted to cover specific identified risks e.g., tax.