                                 CODE OF VIRGINIA

CONTRACTUAL MODIFICATION OF REMEDY (§ 59.1-508.3)

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 substitution for
   those provided in this chapter and may limit or alter the measure of damages
   recoverable under this chapter or a party&#8217;s other remedies under this
   chapter, such as by precluding a party&#8217;s right to cancel for breach of
   contract, limiting remedies to returning or delivering copies and repayment of
   the contract fee, or limiting remedies to repair or replacement of the
   nonconforming copies; and

   2. resort to a contractual remedy is optional unless the remedy is expressly
   agreed to be exclusive, in which case it is the sole remedy.

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

c. Failure or unconscionability of an agreed exclusive or limited remedy makes a
term disclaiming or limiting consequential or incidental damages unenforceable
unless the agreement expressly makes the disclaimer or limitation independent of
the agreed remedy.

d. Consequential damages and incidental damages may be excluded or limited by
agreement unless the exclusion or limitation is unconscionable. Exclusion or
limitation of consequential damages for personal injury in a consumer contract
for a computer program that is subject to this chapter and is contained in
consumer goods is prima facie unconscionable, but exclusion or limitation of
damages for a commercial loss is not unconscionable.

HISTORY: 2000, cc. 101, 996.