Virginia Code 59.1-508.3: Contractual modification of remedy
(a) Except as otherwise provided in this section and in § 59.1-508.4:
Terms Used In Virginia Code 59.1-508.3
- Aggrieved party: means a party entitled to a remedy for breach of contract. See Virginia Code 59.1-501.2
- Agreement: means the bargain of the parties in fact as found in their language or by implication from other circumstances, including course of performance, course of dealing, and usage of trade as provided in this chapter. See Virginia Code 59.1-501.2
- Computer: means an electronic device that accepts information in digital or similar form and manipulates it for a result based on a sequence of instructions. See Virginia Code 59.1-501.2
- Consumer: means an individual who is a licensee of information or informational rights that the individual at the time of contracting intended to be used primarily for personal, family, or household purposes. See Virginia Code 59.1-501.2
- Contract: A legal written agreement that becomes binding when signed.
- Contract: means the total legal obligation resulting from the parties' agreement as affected by this chapter and other applicable law. See Virginia Code 59.1-501.2
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Goods: means all things that are movable at the time relevant to the computer information transaction. See Virginia Code 59.1-501.2
- Party: means a person that engages in a transaction or makes an agreement under this chapter. See Virginia Code 59.1-501.2
(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‘s other remedies under this chapter, such as by precluding a party’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.