This is an Internet Service Provider service agreement (contract) with a mythical
company to provide internet access and services. This contract has a liquidated damages provision in paragraph 3(E) to be paid if the Use Policy is breached. Pursuant to a liquidated damage provision, upon a party's breach, the other party will recover this amount of damages whether actual damages are more or less than the liquidated amount.
Bronx New York Service Agreement between Internet Service Provider and Subscriber with a Liquidated Damage and Exculpatory Provision
Category:
State:
Multi-State
County:
Bronx
Control #:
US-00448BG
Format:
Word;
Rich Text
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How to fill out Service Agreement Between Internet Service Provider And Subscriber With A Liquidated Damage And Exculpatory Provision?
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An example of this would be how a contract for a university dorm rental may state: Students who cancel their dormitory housing agreement after moving into their room shall pay liquidated damages amounting to $5.00/day for the remainder of the rental term (not to exceed $500.00).
Liquidated damages are presented in certain legal contracts as an estimate of otherwise intangible or hard-to-define losses to one of the parties. It is a provision that allows for the payment of a specified sum should one of the parties be in breach of contract.
While liquidated damages clauses are generally enforceable under New York law, there are circumstances in which New York courts will strike them down. Contracting for liquidated damages clauses that New York courts will enforce requires thoughtful drafting without overreach.
Standard Clause under New York law requiring the breaching party to pay a predetermined amount to the non-breaching party as exclusive compensation for the breaching party's failure to perform a specific task or comply with a particular obligation.
A liquidated damages clause specifies a predetermined amount of money that must be paid as damages for failure to perform under a contract. The amount of the liquidated damages is supposed to be the parties' best estimate at the time they sign the contract of the damages that would be caused by a breach.
Liquidated damages is the sum a party to a contract agrees to pay if he breaks some promise, and which, having been arrived at by a good faith effort to estimate in advance the actual damages that will probably ensue from the breach, is legally recoverable as agreed damages if the breach occurs.
Courts generally uphold a liquidated damages clause on the basis of the principle of freedom of contract, but if the court determines the clause to be a penalty, the clause will not be enforceable.
Other than unconscionability, a liquidated damages clause is unenforceable in two circumstances: (1) if the damages flowing from a breach of the contract were easily ascertainable at the time of execution; or (2) if the damages fixed were conspicuously disproportionate to the probable losses.
To enforce a liquidated-damage provision, the party enforcing the contract must prove that, at the time the contract was formed: (1) the harm anticipated from a breach was difficult to predict; and (2) the liquidated damage amount was a reasonable estimate of the harm.
Is Your Liquidated Damages Clause Lawful in California? In California, it is possible to enforce a liquidated damages clause. The amount agreed to at the time that you and the other party sign the contract must be a reasonable estimate of losses that may be suffered should they fail to perform.