Limitation of remedy

(1) Subject to the provisions of subsections (2) and (3) of this section and of Section 7-2-718 on liquidation and limitation of damages: (a) The agreement may provide for remedies in addition to or in substitution for those provided in this article and may limit or alter the measure of damages recoverable under this article, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and (b) Resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy. (2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title. (3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

(4) Nothing in this section or in Section 7-2-718 shall be construed so as to limit the seller’s liability for damages for injury to the person in the case of consumer goods.

(1) Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.

(4) Remedies for breach of warranty can be limited in accordance with the provisions of this article on liquidation or limitation of damages and on contractual modification of remedy (Sections 7-2-718 and 7-2-719).

We now turn to the issue of whether Laird's damages were limited by the terms of the manufacturer's express warranty. Massey-Ferguson argues that they were. We disagree. As permitted by Code 1975, §§ 7-2-316 (4) and 7-2-719 (1), Massey-Ferguson attempted to contractually limit its buyer's remedies for breach of warranty in its "New Agricultural Equipment Warranty," which states: EXCLUSIVE EFFECT OF WARRANTY AND LIMITATION OF LIABILITY THIS WARRANTY IS IN LIEU OF ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PURPOSE OR OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. The remedies of the Owner set forth herein are exclusive. The Company neither assumes nor authorizes any person to assume for it any other obligation or liability in connection with the sale of covered machines. Correction of defects in the manner and for the applicable period of time provided above shall constitute fulfillment of all responsibilities of the Company to the Owner and the Company shall not be liable for negligence, under contract or any other manner with respect to such machines. IN NO EVENT SHALL THE OWNER BE ENTITLED TO RECOVER FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES SUCH AS BUT NOT LIMITED TO, LOSS OF CROPS, LOSS OF PROFITS OR REVENUE, OTHER COMMERCIAL LOSSES, INCONVENIENCE OR COST OF RENTAL OR REPLACEMENT EQUIPMENT.

In effect, Massey-Ferguson argues that it had the right to remedy defects in the combine for an unlimited period of time. To the contrary, the seller does not have an unlimited period of time to repair and/or replace parts under a warranty.

Given the numerous attempts at repair over the extended time period, the jury could properly conclude (as it presumably did, since it obviously awarded consequential damages) that the combine was not repaired within a reasonable time and that the limited warranty had failed of its essential purpose. (See Volkswagen of America, Inc. v. Harrell , 431 So.2d 156 (Ala. 1983), and Winchester v. McColloch Brothers Garage , 388 So.2d 927 (Ala. 1981)). This determination invokes Code 1975, § 7-2-719 (2), which states: "Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title." The general rule for damages for breach of warranty is stated in Code 1975, §§ 7-2-714 (2), and 7-2-714 (3): (2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount, and nothing in this section shall be construed so as to limit the seller's liability for damages for injury to the person in the case of consumer goods. Damages in an action for injury to the person include those damages ordinarily allowable in such actions at law. (3) In a proper case any incidental and consequential damages under section 7-2-715 may also be recovered. Therefore, Laird's damages are the difference between the value of the goods as warranted and the value as delivered, plus incidental and consequential damages.

Massey-Ferguson calls our attention to S.M. Wilson Co. v. Smith International, Inc. , 587 F.2d 1363 (9th Cir. 1978) which stands for the proposition that the inability to repair the machine does not eliminate the disclaimer of implied warranties barring the recovery of consequential damages. We recognize that the holding in S.M. Wilson is contrary to the holding in this case. However, we are bound by the law as set forth in Winchester v. McColloch Brothers Garage, supra.

We have herein concluded that the jury could properly award consequential damages, here, damages for the loss of crops. Since the jury could properly have arrived at the amount of its award from evidence adduced at trial, we conclude that the trial court did not abuse its discretion in allowing Laird's counsel to use the blackboard, and that the use thereof did not constitute prejudicial error to Massey-Ferguson. For the reasons stated herein, the judgment of the trial court is affirmed. AFFIRMED.

The issues were submitted to a jury, which rendered a verdict in favor of Laird in the amount of $64,884.24 against Massey-Ferguson only. The jury also rendered a verdict in favor of MFCC against Laird in the amount of $29,779.28, which included the balance financed plus interest. The trial court entered judgments accordingly.

Barko failed to correct the problems with the 495ML loader after repeated complaints and servicings. Given the numerous attempts at repair over the extended period, the jury could properly have concluded that the 495ML loader had not been repaired and that the warranty had failed 14 1121479 of its essential purpose.4 Barko breached its contract during the warranty period. As is the case with any contract that is breached, Shepherd's damages were precipitated by Barko's failure to perform. Mere passage of time did not cure or excuse that breach or failure to perform. Accordingly, the trial court did not err in submitting the breach-of-express- warranty claim to the jury.

The warranty limited Barko's potential liability under the warranty as follows: "Remedies available to any person claiming under this warranty are exclusive and expressly limited to obtaining the parts and the labor, where applicable, in accordance with terms of this warranty. "Barko['s] liability for losses, damages, or expenses of any kind arising from the design, manufacture or sale of the product covered by this warranty, whether based on warranty, negligence, contract, tort or otherwise, is limited to an amount not exceeding the cost of correcting the defects as herein provided, and, at the expiration of the 3 1121479 applicable warranty period, all such liability shall terminate. "Barko shall in no event be liable for incidental, consequential, or special damages [for] losses of use of the Barko product, a loss or damage to property other than the Barko product, a loss of profits or other commercial loss, or any special or consequential damages (except liability for consequential damages which by law may not be disclaimed).

SHAW, Justice (concurring in the result). I concur in the result reached by the main opinion. I write specially to explain why the trial court did not err in submitting to the jury the issue of incidental and consequential damages. Incidental and consequential damages can be recovered for a seller's breach. Ala. Code 1975, §§ 7-2-714(3) and -715. Under Ala. Code 1975, § 7-2-719(1), parties may agree to limit remedies for breaches, including damages. However, § 7-2-719(2) states that "[w]here circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title." Under the authority of Massey-Ferguson, Inc. v. Laird, 432 So. 2d 1259 (Ala. 1983), when a limited remedy fails of its essential purpose, the damages available in § 7-2-714, including incidental and consequential damages, can be recovered, despite the limitations in the contract.

We reverse the judgment entered against Barko, and we remand the case for entry of an order granting Barko's motion for a new trial.

There must be some nexus between the mental-anguish damages and the intention and contemplation of the parties at the time the contract was made; there is not substantial evidence to support the award of such damages under the circumstances of this case. In this case, the jury returned a general verdict. Because general damages were awarded, there is no way to determine the amount the jury attributed to each type of damages, some of which were properly awardable, and some of which were not. Accordingly, we reverse the judgment in its entirety and remand the case for a new trial.

Moore, C.J., and Bolin and Main, JJ., concur. Murdock, J., concurs specially. Shaw, J., concurs in the result. Parker and Bryan, JJ., concur in part and dissent in part. Stuart, J., concurs in the result in part and concurs in part and dissents in part as to the rationale.

Subject to (b) and (c) of this section and AS 45.02.718 on liquidation and limitation of damages, (1) the 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, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and (2) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.

If circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in the code.

Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable, but limitation of damages where the loss is commercial is not.

The contract at issue was a consumer sale, not a commercial transaction between sophisticated businesses with equivalent bargaining power.

For these reasons, we hold the superior court erred in ruling that it would be conscionable to enforce the warranty's bar against consequential damages and in declining to allow the Pierces to present their consequential damages claim to the jury.

We believe that the majority approach best serves the Uniform Commercial Code's underlying purposes

But the majority of jurisdictions view these subsections to be independent, ruling that when a warranty fails, a separate provision barring consequential damages will survive under subsection .T19(¢) as long as the bar itself is not uncon-seionable.

We therefore adopt the independent *623 approach as the most sensible rule in light of precedent, reason, and policy.

We agree, holding that because Catalina acted in bad faith when it breached the warranty, the company cannot conscionably enforce the warranty's provision barring consequential damages. Accordingly, we remand for a trial to determine consequential damages.

Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.

For these reasons, we VACATE the judgment and REMAND for a trial to determine the amount of the Pierces' consequential damages.

(1) Subject to the provisions of subdivisions (2) and (3) of this section and of the preceding section on liquidation and limitation of damages, (a) The agreement may provide for remedies in addition to or in substitution for those provided in this division and may limit or alter the measure of damages recoverable under this division, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and (b) Resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy. (2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this code. (3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is invalid unless it is proved that the limitation is not unconscionable. Limitation of consequential damages where the loss is commercial is valid unless it is proved that the limitation is unconscionable.

(1) Damages for breach by either party may be liquidated in the agreement subject to and in compliance with Section 1671 of the Civil Code. If the agreement provides for liquidation of damages, and such provision does not comply with Section 1671 of the Civil Code, remedy may be had as provided in this division. (2) Where the seller justifiably withholds delivery of goods because of the buyer’s breach, the buyer is entitled to restitution of any amount by which the sum of his or her payments exceeds: (a) The amount to which the seller is entitled by virtue of terms liquidating the seller’s damages in accordance with subdivision (1), or (b) In the absence of such terms, 20 percent of the value of the total performance for which the buyer is obligated under the contract or five hundred dollars ($500), whichever is smaller. (3) The buyer’s right to restitution under subdivision (2) is subject to offset to the extent that the seller establishes: (a) A right to recover damages under the provisions of this chapter other than subdivision (1), and (b) The amount or value of any benefits received by the buyer directly or indirectly by reason of the contract. (4) Where a seller has received payment in goods their reasonable value or the proceeds of their resale shall be treated as payments for the purposes of subdivision (2); but if the seller has notice of the buyer’s breach before reselling goods received in part performance, his or her resale is subject to the conditions laid down in this division on resale by an aggrieved seller (Section 2706).

(a) This section does not apply in any case where another statute expressly applicable to the contract prescribes the rules or standard for determining the validity of a provision in the contract liquidating the damages for the breach of the contract. (b) Except as provided in subdivision (c), a provision in a contract liquidating the damages for the breach of the contract is valid unless the party seeking to invalidate the provision establishes that the provision was unreasonable under the circumstances existing at the time the contract was made. (c) The validity of a liquidated damages provision shall be determined under subdivision (d) and not under subdivision (b) where the liquidated damages are sought to be recovered from either: (1) A party to a contract for the retail purchase, or rental, by such party of personal property or services, primarily for the party’s personal, family, or household purposes; or (2) A party to a lease of real property for use as a dwelling by the party or those dependent upon the party for support. (d) In the cases described in subdivision (c), a provision in a contract liquidating damages for the breach of the contract is void except that the parties to such a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.

Commercial contracting parties have considerable freedom to determine the remedial rights that will ensue upon breach. Such authority is expressly conferred upon buyers and sellers of goods in article 2 of the Uniform Commercial Code, General Statutes § 42a-2-719. 5 Absent some cogent reason such as mistake or unconscionability, there is no reason why a court should not enforce the bargain that the parties have made. Leonard Concrete Pipe Co. v. C. W. Blakeslee & Sons, Inc., 178 Conn. 594, 598 , 424 A.2d 277 (1979). In this case, the parties’ bargain imposes upon the seller or its assignee the burden of complying fully with consumer procedures that would otherwise not be mandatory in this commercial context. Particularly when it is the commercial seller whose drafting has imposed this burden upon itself, we are of the view that the contract should be enforced according to its terms.

The code provides that it shall be liberally construed; § 42a-l-102; and recognizes that it is the very essence of a sales contract that at least minimum adequate remedies be available. § 42a-2-719; Uniform Commercial Code § 2-719, comment 1. In this case, the limited remedy of the warranty had failed of its essential purpose because even after numerous attempts to repair, the automobile still did not operate as a new automobile should, free from defects. See Riley v. Ford Motor Co., 442 F.2d 670 (5th Cir.). The code provides that “[w]here circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title.” § 42a-2-719 (2).

Section 42a-2-608 of the General Statutes sets up the following conditions for the buyer who seeks to justify revocation of acceptance: (1) a nonconformity which substantially impairs the value to the buyer; (2) acceptance (a) with discovery of the defect, if the acceptance is on the reasonable assumption that the nonconformity will be cured, or (b) without discovery of the defect, when the acceptance is reasonably induced by the difficulty of the discovery or the seller’s assurances; (3) revocation within a reasonable time after a nonconformity was discovered or should have been discovered; and (4) revocation before a substantive change occurs in the condition of the goods not caused by their own defects.

The jury could have reasonably concluded that the revocation was timely and justifiable. The plaintiff was, therefore, entitled to recover the amount of the purchase price which he had already paid. § 42a-2-711. This basic remedy for justifiable revocation was not effectively limited by the warranty provision that the buyer was only entitled to the repair and replacement of defective parts.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendants.

General Statutes § 42a-2-719 provides in relevant part: “(1) Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages, (a) the agreement may provide for remedies in addition to or in substitution for those provided in this article and may limit or alter the measure of damages recoverable under this article . . . .”

The statute allows revocation only against the person who sells or contracts to sell goods. Dwan was not the agent of Ford insofar as the sale of the automobile was concerned. To be entitled to the remedy of revocation, there must be a buyer-seller relationship, and that relationship was absent in this case.

There is error on the appeal of the defendant Ford, the judgment as to this defendant only is set aside and the case is remanded with direction to render judgment in favor of the defendant Ford Motor Company.

Under General Statutes § 42a-2-719 (2), a party may avail itself of remedies provided by the code “[w]here circumstances cause an *350 exclusive or limited remedy to fail of its essential purpose . . . .” See Conte v. Dwan Lincoln-Mercury, Inc., supra, 123.

As the plaintiff correctly points out, the UCC, in § 2-719 (1) (General Statutes § 42a-2-719 [1]) 3 permits *872 parties to limit a buyer’s remedy for breach. Under § 2-719 (1) (b), however, if such a limited remedy is designed to be exclusive, such as the plaintiff’s claim in this case, it must be clearly expressed.

(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title. (3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

(1) Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages, (a) the agreement may provide for remedies in addition to or in substitution for those provided in this Article and may limit or alter the measure of damages recoverable under this Article, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of non-conforming goods or parts; and (b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.

(1) Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages:(a) The 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, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and (b) Resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.

(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this code. (3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

(1) Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.

(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. (2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.

Warranty The only obligation of [Radiation] and its distributor shall be to replace any of this product proved to be defective. Before using test this product to determine its suitability for the intended use. User assumes all risk and liability while testing and using this product. Neither [Radiation] nor its distributor shall be liable for any injury, loss or damage, direct or consequential, relating to the use or inability to use this product. While the technical information on this sheet is believed to be reliable, [Radiation] does not guarantee its accuracy or completeness.

The legal issue is whether the trial court erred in instructing the jury to disregard the warranty/limitations of liability clause quoted above and in failing to give effect to the limitations of remedy provision. The case went to the jury on a negligence theory; there was privity in contract between the parties; and there was no count in strict liability.

Further, since the count was in negligence [*] and it is undisputed that the potential harm was to property only and not to the person, the limitations of remedy provision was not prima facie unconscionable and should have been given effect absent a showing of unconscionability. § 672.719(3), Fla. Stat. (1979). The facts here show that the parties were two commercial entities with no suggestion of an imbalance of bargaining power between them rendering the limitations clause unconscionable and unenforceable. Under the circumstances, the trial court erred in failing to allow the jury to consider the limitations of remedy provision. We quash the district court opinion and remand for proceedings consistent with this opinion. It is so ordered. ADKINS, OVERTON and McDONALD, JJ., concur. ALDERMAN, C.J., dissents with an opinion, in which BOYD and EHRLICH, JJ., concur.

[*] We express no opinion on whether the limitations of remedy provision would have been enforceable had the count been in strict liability.

Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages, (a) the 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, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of non-conforming goods or parts; and (b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.

Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this act.

Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

I.C. § 28-2-719(8), a portion of the Uniform Commercial Code (UCC), provides: Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable.

Cyanamid asserts that the trial court should not have ruled that the limitation of liability on the ASSERT product label is unconscionable, and, therefore unenforceable. We disagree.

I.C. § 28-2-302 sets forth the procedure and standard courts are to use when addressing issues of unconscionability and provides: (1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

Because we have upheld the award of damages to Walker based on the breach of express warranties, it is unnecessary for us to address the trial court’s refusal to dismiss Walker’s claim pursuant to the Idaho Consumer Protection Act and the trial court’s dismissal of Walker’s claims based on tort theories. We affirm the judgment awarding Walker damages.

(b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy. (2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this Act. (3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

Surely, whatever other context there might be in which a contractual provision would be found to be procedurally unconscionable, that label must apply to a situation such as the case at bar where plaintiff has testified that she never saw the clause; nor is there any basis for concluding that plaintiff could have seen the clause, before entering into the sale contract.

(810 ILCS 5/2-719) (from Ch. 26, par. 2-719) Sec. 2-719. Contractual modification or limitation of remedy. (1) Subject to the provisions of subsections (2) and (3) of this Section and of the preceding section on liquidation and limitation of damages, (a) the agreement may provide for remedies in addition to or in substitution for those provided in this Article and may limit or alter the measure of damages recoverable under this Article, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of non-conforming goods or parts; and (b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.

These aspects of the disclaimer are irrelevant, however, in the case of a limitation of liability withheld from the buyer until after the purchase contract has been signed. It simply does not matter how large the type was or how clearly the disclaimer was expressed if the consumer did not have the opportunity to see the language before entering into the contract to purchase the car.

Unconscionability can be either "procedural" or "substantive" or a combination of both.

However, we need not—and we do not—hold that these general circumstances alone or in combination render the clause unconscionable. An additional fact particular to this case tips the balance in plaintiff's favor. That is the lack of evidence that the warranty, which contained the disclaimer of consequential damages, had been made available to the plaintiff at or before the time she signed the sale contract.

In this case, Hyundai's limited warranty contained both a limitation of remedy and an exclusion of consequential damages. The warranty expressly limited the buyer's remedies to repair and replacement of nonconforming parts, as permitted under section 2-719(1)(a). However, the warranty additionally provided that incidental or consequential damages were "not covered," as permitted under section 2-719(3).

We conclude that the independent approach is the better-reasoned and more in accordance with the plain language of the UCC. This conclusion is buttressed by the fact that a majority of jurisdictions to consider the issue have adopted the independent approach.

Contractual limitations or exclusions of consequential damages will be upheld unless to do so would be unconscionable, regardless of whether the contract also contains a limited remedy which fails of its essential purpose.

Accordingly, the mere fact that the jury found the limited remedy to have failed of its essential purpose does not destroy the provision in the warranty excluding consequential damages. However, this does not mean that the exclusion of consequential damages will necessarily be upheld. Rather, that provision must be judged on its own merits to determine whether its enforcement would be unconscionable.

The primary question is whether the circuit court acted properly in refusing to enforce a contractual clause prohibiting the award of consequential damages. There is also a sufficiency of the evidence challenge to the court's award of warranty damages. We affirm in part, reverse in part, and remand.

To enforce the clause in these circumstances, we conclude, would indeed be unconscionable. See Frank's Maintenance, 86 Ill.App.3d at 991 n. 2, 42 Ill.Dec. 25 , 408 N.E.2d 403 ("a limitation of liability given to the buyer after he makes the contract is ineffective"). Accordingly, we affirm the circuit court's order to that effect, as well as the $3,500 which represents that portion of the jury verdict intended to recompense plaintiff for the consequential damages she incurred.

Therefore, pursuant to our authority under Supreme Court Rule 366(a)(5) (155 Ill.2d R. 366(a)(5)), we reverse and remand for a new trial solely on the question of the warranty damages to which plaintiff is entitled.

Hyundai neither challenges the jury's conclusions regarding causation *614 nor contends that plaintiff failed to prove that the warranty failed of its essential purpose.

Because the limited remedy failed of its essential purpose, plaintiff was entitled to pursue the other remedies afforded by the UCC.

Subject to the provisions of subsections 2 and 3 of this section and of section 554.2718 on liquidation and limitation of damages, a. the agreement may provide for remedies in addition to or in substitution for those provided in this Article and may limit or alter the measure of damages recoverable under this Article, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and b. resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.

Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this chapter.

Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

Remedies for breach of warranty can be limited in accordance with the provisions of this Article on liquidation or limitation of damages and on contractual modification of remedy (sections 554.2718 and 554.2719).

Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.

Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages, (a) the agreement may provide for remedies in addition to or in substitution for those provided in this article and may limit or alter the measure of damages recoverable under this article, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and (b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.

Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this act.

Remedies for breach of warranty can be limited in accordance with the provisions of this article on liquidation or limitation of damages and on contractual modification of remedy (K.S.A. 84-2-718 and 84-2-719).

(a) Notwithstanding any other provisions of law, with respect to property which is the subject of or is intended to become the subject of a consumer transaction in this state, no supplier shall: (1) Exclude, modify or otherwise attempt to limit the implied warranties of merchantability as defined in K.S.A. 84-2-314, and amendments thereto, and fitness for a particular purpose, as defined in K.S.A. 84-2-315, and amendments thereto; or (2) exclude, modify or attempt to limit any remedy provided by law, including the measure of damages available, for a breach of implied warranty of merchantability and fitness for a particular purpose.

Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

(e) A disclaimer or limitation in violation of this section is void. If a consumer prevails in an action based upon breach of warranty, and the supplier has violated this section, the court may, in addition to any damages recovered, award reasonable attorney fees and a civil penalty under K.S.A. 50-636, and amendments thereto, to be paid by the supplier who gave the improper disclaimer.

In the official UCC Comments to K.S.A. 84-2-719, it is said: “1. Under this section parties are left free to shape their remedies to their particular requirements and reasonable agreements limiting or modifying remedies are to be given effect. “However, it is of the very essence of a sales contract that at least minimum adequate remedies be available. If the parties intend to conclude a contract for sale within this Article they must accept the legal consequence that there be at least a fair quantum of remedy for breach of the obligations or duties outlined in the contract. . . . [Ujnder subsection (2), where an apparently fair and reasonable clause because of circumstances fails in its purpose or operates to deprive either party of the substantial value of the bargain, it must give way to the general remedy provisions of this Article.” (Emphasis added.)

We conclude the fact that the seller is first given the opportunity to repair or replace after the harmful occurrence does not, standing alone, bar recovery for failure of essential purpose at least in those instances where the outcome of the repair or replacement leaves the user in the position of one who has been afforded an unconscionably inadequate remedy, that is, where the user has not been afforded a reasonably “fair quantum of remedy.” Whether the remedy failed in this case is a question of fact ánd should not have been decided on summary judgment.

In summary, we conclude that the summary judgment against Elite must be reversed. It was improvidently granted. On the present record, the printed warranty and disclaimer does not preclude recovery by Elite on its asserted strict liability, negligence, or warranty theories as a matter of law.

The printed warranty and disclaimer may be said, to be in the nature of an exclusive express limited remedy warranty. Carrier promises to repair or replace any defective parts or components causing malfunction of the refrigeration unit. In the event of refrigeration unit malfunction, Elite’s sole and only remedy is repair or replacement of defective parts or components according to Carrier’s promise as stated in the printed, warranty and disclaimer. There is no backup remedy clause (e.g., repayment of purchase price). Carrier disclaims all liability for damage or loss arising out of refrigeration unit malfunction beyond or other than its express obligation to repair or replace defective parts or components. There is no liquidated damages clause.

Subject to the provisions of subsections (2) and (3) of this section and of section 2‑718 on liquidation and limitation of damages: (a). The agreement may provide for remedies in addition to or in substitution for those provided in this Article and may limit or alter the measure of damages recoverable under this Article, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and

Resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.

Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this Title.

Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

The provisions of subsections (2) , (3) and (4) do not apply to sales of consumer goods or services. Any language, oral or written, used by a seller or manufacturer of consumer goods and services that attempts to exclude or modify any implied warranties of merchantability and fitness for a particular purpose or to exclude or modify the consumer's remedies for breach of those warranties is unenforceable.

Consumer goods and services are those new or used goods and services, including mobile homes, that are used or bought primarily for personal, family or household purposes.

A violation of section 2‑314 , 2‑315 or 2‑316 arising from the retail sale of consumer goods and services constitutes a violation of Title 5, chapter 10 , Unfair Trade Practices Act.

A violation of section 2‑316 arising from an attempt by a prior seller or manufacturer of consumer goods and services to exclude or modify the warranty or reimbursement remedy of a retail seller of consumer goods and services who provides reimbursement or return to a consumer as required to honor an implied warranty of merchantability due to a defect for which that prior seller or manufacturer is liable under section 2‑314 or 2‑315 does not constitute a violation of Title 5, chapter 10 , Unfair Trade Practices Act.

We note at the outset that Maine is the only jurisdiction to adopt a Uniform Commercial Code provision which provides that “violations” of the Code constitute per se violations of the Unfair Trade Practices Act.

Accordingly, we reverse the decision of the Superior Court insofar as it relates to the applicability of section 208(2) of Title 5 and remand the case to that Court for dismissal of Counts One, Two and Four of CV 79 — 415 and Counts One and Three of CV 79-737 insofar as those counts allege a cause of action under the Unfair Trade Practices Act. The entry is: Judgment of the Superior Court reversed in part.

It becomes unnecessary for us to decide whether that form was effective under 11 M.R.S.A. § 2-719 to *681 make the specified remedy exclusive or under 11 M.R.S.A. § 2-316 to disclaim all other warranties

since there was testimony from which the jury could have found that the purchaser never received a copy of the warranty form at the time of purchase and that what purported to be the purchaser’s signature on Husky’s copy of the form was a forgery.

Thus, the award of $17,000.00 is fully supported by the evidence. The entry is: Appeal denied. Judgment affirmed.

If the court finds, in any action commenced under this section that there has been a violation of section 207 , the petitioner shall, in addition to other relief provided for by this section and irrespective of the amount in controversy, be awarded reasonable attorney's fees and costs incurred in connection with said action.

If the repair-and-replacement clause as a remedy fails of its essential purpose, Minn.St. 336.-2-719(2) entails that its function as a limitation of the seller’s liability must also fail. In such a circumstance, plaintiff may cancel the contract and recover his purchase price.

An exclusive remedy fails of its essential purpose if circumstances arise to deprive the limiting clause of its meaning or one party of the substantial value of its bargain.

So long as the seller repairs the goods each time a defect arises, a repair-and-replacement clause does not fail of its essential purpose. 10 But if repairs are not successfully undertaken within a reasonable time, the buyer may be deprived of the benefits of the exclusive remedy.

We too are of the opinion that the better reasoned approach is to treat the repair or replacement remedy and a consequential damage exclusion as discrete and independent contractual provisions. Accordingly, the consequential damage exclusion is valid unless it is unconscionable.

We emphasize, however, that our decision is grounded in a commercial setting involving a contract between two merchants of relatively equal bargaining power and is not intended to establish that a consequential damage bar survives a failure of the limited repair remedy in consumer transactions that involve relatively commonplace or uncomplicated products such as automobiles and trucks.

We anticipate that such consumer transactions will continue to be governed by the principles enunciated in Jacobs v. Rosemount Dodge-Winnebago South, 310 N.W.2d 71 (Minn.1981), and Durfee v. Rod Baxter Imports, Inc., 262 N.W.2d 349 (Minn.1977).

Under the circumstances of this case, where the parties were both merchants and there was no great disparity in their bargaining strength and where the claim is for commercial loss, there is nothing that makes it unconscionable to enforce the allocation of risk incorporated into the parties’ contract. The consequential damages exclusion is valid and enforceable.

(3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

This statute provides in part: “(1) Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages, “(a) the agreement may provide for remedies in addition to or in substitution for those provided in this article and may limit or alter the measure of damages recoverable under this article, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and (b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy. “(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this chapter.” (Italics supplied.)

Minn.St. 336.2-719(2) provides that “[w]here circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this chapter.” Where a buyer has justifiably revoked acceptance, this clause precludes the invocation of a clause limiting liability with respect to the recovery of incidental damages. To withhold incidental damages from a buyer revoking acceptance is to make cancellation of the contract a less than adequate remedy.

Plaintiff appeals from an order 1 of the district court awarding him $600 damages for breach of warranty resulting from defects in his new Saab automobile which defendants failed to correct.

Plaintiff is entitled to recover the purchase price and $116.30 incidental damages upon tender of the Saab to defendants. Reversed and remanded with instructions to enter judgment for plaintiff in accordance with this opinion.

Although we agree with the trial court that the consequential damage exclusion effectively barred claims for such dam *270 ages, we believe the trial court erred in denying Franz the opportunity to prove damages resulting from the construction of the “clean room.” In eases of breach of warranty the cost of putting the offending product in place is a direct damage.

Reversed in part, affirmed in part, and remanded to the trial court for determination of the damages, if any, resulting from the preparation of the facility required for housing the Gerber Model 3235 photoplotter.

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

Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this code.

Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

Although the parties could have further limited or modified the remedies available t.o either party upon breach (see section 30-2-719, MCA, and 2-719, UCC), they did not do so.

Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages, (a) the 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, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and

This is especially the case in light of the legislature’s passage of section 30-2-719(3), MCA, which provides: “(3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injuiry to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.”

Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.

Where the seller is given a reasonable chance to correct defects and the equipment still fails to function properly, the limited remedy of repair or replacement of defective parts fails of its essential purpose.

In such an event, the buyer may then invoke any remedies available under the Uniform Commercial Code, including breach of warranties of merchantability or fitness for a particular purpose. The same would be true regarding provable consequential damages, even though specifically excluded by the written warranty.

The Comment under § 2-719 further provides, in referring to subsection (2): *554 “ [W] here an apparently fair and reasonable clause because of circumstances fails in its purpose or operates to deprive either party of the substantial value of the bargain, it must give way to the general remedy provisions of this article.

The purpose of an exclusive remedy of ‘‘repair or replacement” from a buyer's viewpoint is to give him goods which conform to the contract within a reasonable time after a defect is discovered.

The clause provides both a remedy to the buyer, whereby he may obtain goods conforming to the contract, and a limitation of the liability of the manufacturer.

Consequential damages may be limited or excluded unless the limitation or exclusion is *353 unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

We conclude that under the circumstances presented here, the exclusion is procedurally unconscionable. Having found the exclusion both substantively and procedurally unconscionable, we decline to enforce it.

In the present case, the limitation of consequential damages clause would leave the herbicide user without any substantial recourse for his loss.

Guaranteed Foods v. Rison, 207 Neb. 400, 407 , 299 N.W.2d 507, 512 (1980), states that “the issue of unconscionability must be pleaded in order to be considered by the court.”

Because we have held that the disclaimer of the warranty is conspicuous as a matter of law, we also hold that the limitation of remedies is conspicuous.

The authority to limit a *47 buyer’s remedies under a warranty is found in Neb. U.C.C. § 2-719 (Reissue 1971), which provides in pertinent part as follows:

Limitations of remedy are governed by § 2-719(3), which states that “ [consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable.”

However, §2-719(2) also provides: “Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this act.”

In this case it is clear that there is some evidence that Deere may not have effectively performed its obligation to repair the equipment properly and within a reasonable time. There is, therefore, a question of fact to be determined by the trier of fact as to whether the limited warranties have failed in their purpose so as to deprive Hand of the substantial value of the bargain and thus give Hand the right to pursue other remedies provided by the Uniform Commercial Code.

We conclude that the provision excluding consequential damages is substantively unconscionable. Substantive unconscionability in a commercial setting, standing alone, is insufficient to void a contract or clause.

V. CONCLUSION We reverse that portion of the district court’s judgment overruling the defendant’s motions for directed verdict on the strict liability count. We affirm that portion of the district court’s judgment overruling the defendant’s motions for directed verdict and for judgment notwithstanding the verdict on the Adamses’ theory of recovery based on breach of the implied warranty of merchantability, but we remand because the district court improperly submitted the issue of the disclaimer’s conspicuousness to the jury. Affirmed in part, and in part reversed AND REMANDED FOR A NEW TRIAL.

An agreement between parties may provide remedies in addition to, or in substitution for, those remedies provided in article 2 of the U.C.C. Neb. U.C.C. § 2-719(1)(a) (Reissue 2001). Resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy. § 2-719(1)(b). Section 2-719(1)(b) creates a presumption that contract clauses prescribing remedies are cumulative rather than exclusive. § 2-719, comment 2. If the parties intend that the contract term describes the sole remedy under the contract, this must be clearly expressed.

In the present case, the parties’ purchase agreement provides that Albrecht, as the buyer, may reject any cattle that are not in a merchantable condition. However, the agreement does not describe this remedy as the sole remedy under the contract. In the absence of such clear expression of exclusivity, a remedy is presumed cumulative—not exclusive—under § 2-719(1)(b).

(1) Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages, (a) the 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, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of non-conforming goods or parts; and (b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy. (2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this Act. (3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

No consumer contract, warranty, notice or sign, as provided for in this act, shall contain any provision by which the consumer waives his rights under this act. Any such provision shall be null and void. No consumer contract, notice or sign shall state that any of its provisions is or may be void, unenforceable or inapplicable in some jurisdictions without specifying which provisions are or are not void, unenforceable or inapplicable within the State of New Jersey; provided, however, that this shall not apply to warranties.

Accordingly, we conclude that N.J.S.A. 12A:2-719 does not require the invalidation of an exclusion of consequential damages when limited contractual remedies fail of their essential purpose. It is only when the circumstances of the transaction, including the seller’s breach, cause the consequential damage exclusion to be inconsistent with the intent and reasonable commercial expectations of the parties that invalidation of the exclusionary clause would be appropriate under the Code.

Contract terms providing for a "sole remedy" are sufficiently clear to establish that no other remedy was contemplated by the parties at the time the contract was formed, for purposes of that portion of the transaction (see J. D'Addario & Co., Inc. v Embassy Indus., Inc., 20 NY3d 113, 118 [2012]), "especially when entered into at arm's length by sophisticated contracting parties" (Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377, 384 [1983]).

Therefore, even accepting HSBC's allegations as true and giving HSBC the benefit of every favorable inference, it is readily apparent from the face of the complaints that the alleged breaches of the No Untrue Statement Provision are, in fact, based upon alleged breaches of the Mortgage Representations. However, under both the MLPAs and the PSAs, the sole remedy for breaches of the Mortgage Representations is cure or repurchase. HSBC cannot "subvert this 'exclusive remedies' limitation" of liability by simply re-characterizing its claims (Matter of Westmoreland Coal Co., 100 NY2d at 359).

We hold that, inasmuch as the claims for general contract damages at issue here are grounded in alleged breaches of the mortgage loan- specific representations and warranties to which the limited remedy fashioned by the sophisticated parties applies, plaintiffs' claims for general contract damages should be dismissed.

It is fundamental that, "when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms" (W.W.W. Assoc. v - 7 - - 8 - No. 39 Giancontieri, 77 NY2d 157, 162 [1990]; see Reiss v Financial Performance Corp., 97 NY2d 195, 198 [2001]), and that courts should read a contract "as a harmonious and integrated whole" to determine and give effect to its purpose and intent

Significantly, section 9 (c) states that "[i]t is understood and agreed that the obligations of [defendant] set forth in this [s]ection 9 to cure or repurchase a defective Mortgage Loan . . . constitute the sole remedies of the Purchaser against [defendant] respecting a missing document or a breach of the representations and warranties contained in [s]ection 8" [emphasis added]. This language is referred to by the parties as the "Sole Remedy Provision."

Notably, defendant does not claim that all possible breaches of the general representations and warranties set forth in section 7 of the MLPAs, including the No Untrue Statement Provision, are subject to the sole remedy of curing or repurchasing the defective loans. Nor does defendant assert that the Sole Remedy Provision would apply to limit the remedies available for breach of section 7 representations that are not - 15 - - 16 - No. 39 based on the mortgage loans and their characteristics, such as, for example, a claim that defendant entered into the contract without proper corporate authority. Rather, defendant concedes that the Sole Remedy Provision would not apply to such breaches based upon the language to which the parties agreed (cf. Ambac Assur. Corp. v EMC Mtge. LLC (121 AD3d 514 [1st Dept 2014]).5 However, as previously noted, there are no allegations in the complaints of a breach of the No Untrue Statement Provision in section 7 of the MLPAs to which the Sole Remedy Provision would not apply because all of the claims asserted under section 7 are also breaches of the loan-specific Mortgage Representations contained in section 8.

Rather, "[r]eading the [contracts] as a harmonious and integrated whole" (id. at 358) and honoring "the exclusive remedy that the[se] [sophisticated] parties fashioned" (J D'Addario, 20 NY3d at 119), we conclude - 13 - - 14 - No. 39 that the Sole Remedy Provision applies, precluding HSBC from seeking general contract damages for the particular claims challenged on this appeal.

In any event, the more specific Sole Remedy Provision that is narrowly related to breaches of the Mortgage Representations applies here because "[a] specific provision will not be set aside in favor of a catchall clause" (William Higgins, 20 NY2d at 428). Accordingly, the Appellate Division order insofar as appealed from should be modified, without costs, in accordance with this opinion and, as so modified, affirmed, and the certified question answered in the negative.

Subject to the provisions of subsections (b) and (c) of this section and of the preceding section [G.S. 25-2-718] on liquidation and limitation of damages, (1) the agreement may provide for remedies in addition to or in substitution for those provided in this article and may limit or alter the measure of damages recoverable under this article, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and (2) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.

Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this chapter. (c) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

(a) Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.

(a) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. (b) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.

(d) Remedies for breach of warranty can be limited in accordance with the provisions of this article on liquidation or limitation of damages and on contractual modification of remedy (G.S. 25-2-718 and 25-2-719).

Subject to the provisions of subsections 2 and 3 of this section and of section 41-02-97 on liquidation and limitation of damages: - The 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, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and - Resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.

If circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title.

Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

The circumstances presented in this case demonstrate a substantial inequality in bargaining power between J-M and Construction Associates. Construction Associates is a relatively small local construction firm, while J-M is part of an enormous, highly diversified, international conglomerate.

The clause at issue here would limit Construction Associates' remedy for J-M's breach to a like quantity of replacement pipe, with no recovery of consequential damages. Construction Associates argues, with support in the evidence, that replacement pipe is not used when making repairs to leaking joints on a completed underground water pipeline. Because the accepted method of repair is to cut out the leaking joint and repair it with a stainless steel sleeve, Construction Associates argues, the replacement pipe would be useless in effecting repairs upon the line. The trial court determined that J-M's limited remedy "amount[ed] to nothing whatsoever."

The circumstances of this case demonstrate elements of procedural and substantive unconscionability which, when viewed in totality, adequately support the trial court's conclusion that the clause limiting remedies and excluding consequential damages was unconscionable under the relevant statutory provisions. The trial court therefore did not err in refusing to enforce the limitation of remedies and exclusion of consequential damages. The judgment of the district court is affirmed.

[5] The trial court also determined that the limitation of remedies failed of its essential purpose. See Section 41-02-98(2), N.D.C.C. [U.C.C. § 2-719(2)]. Because we conclude that the trial court did not err in determining that the limitation of remedies was unconscionable, we find it unnecessary to address the separate issue of failure of essential purpose.

The determination to be made is whether, under the circumstances presented in the particular commercial setting, the terms of the agreement are so one-sided as to be unconscionable. Peoples Bank and Trust v. Reiff , 256 N.W.2d 336, 344 (N.D.1977); Haugen v. Ford Motor Co., supra, 219 N.W.2d at 467 ; U.C.C. § 2-302, Official Comment. The principle underlying the Code's unconscionability provisions is the prevention of oppression and unfair surprise. Peoples Bank and Trust v. Reiff, supra, 256 N.W.2d at 344 ; Haugen v. Ford Motor Co., supra, 219 N.W.2d at 467 ; U.C.C. § 2-302, Official Comment. Courts and commentators have generally viewed the Code's unconscionability provisions within a two-pronged framework: procedural unconscionability, which encompasses factors relating to unfair surprise, oppression, and inequality of bargaining power, and substantive unconscionability, which focuses upon the harshness or one-sidedness of the contractual provision in question.

We initially note that this case presents a commercial, rather than a consumer, transaction. Although courts have generally been more reluctant to find unconscionability in purely commercial settings, see Ray Farmers Union Elevator Co. v. Weyrauch, supra, 238 N.W.2d at 50 , under appropriate circumstances a contractual provision may be found unconscionable even in a commercial setting.

Pursuant to R.C. 1302.93(A)(1), "[t]he agreement * * * may limit or alter the measure of damages recoverable * * *, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts."

This provision gives the parties to a contract of sale the right to include any reasonable provision with respect to what remedies are available upon breach. 4B Lawrence, Anderson on the Uniform Commercial Code, Section 2-719:4, at 8 (3d Ed. 2001). Thus, parties to a contract of sale may consensually allocate the loss resulting from the failure of the goods to perform as warranted, as long as minimum adequate remedies remain available for a beach.

“Generally, ‘the parties to a contract may incorporate contractual terms by reference to a separate, noncontemporaneous document, including * * * a separate document which is unsigned[,]’ if ‘the contract makes clear reference to the document and describes it in such terms that its identity may be ascertained beyond doubt.’”

On September 9, 2016, Ms. Martin signed a one-page, double-sided purchase agreement (the “Purchase Agreement”) to purchase a 2017 Kenworth T680 semi-truck from Hissong.

Per Ms. Martin’s affidavit, on September 27, 2016, Hissong sent her two limited warranty agreements via email:

As a result, the 12-month limitations period contained within the LWAs could not be considered part of the “original agreement” for purposes of reducing the four-year statute of limitations under R.C. 1302.93(A).

"[r]emedies for breach of warranty can be limited in accordance with the provisions of * * * [R.C.] 1302.93 * * * on contractual modification of remedy." R.C. 1302.29(D).

Notably, " '[t]he limitation [or exclusion of remedies] must be a part of the parties' bargain in fact.' " Insurance Co. of N. Am. v. Automatic Sprinkler Corp., 67 Ohio St.2d 91, 96 (1981), quoting Nordstrom, Law of Sales, Section 89, at 276 (1970);

Because incorporation by reference cannot occur without a clear identification of the extrinsic document and a clearly expressed purpose to incorporate that document, we conclude that this contract's equivocal language does not incorporate the Limited Warranty by reference. {¶ 29} As incorporation by reference did not occur here, the terms of the Limited Warranty, including the remedy limitation, do not bind the Volovetzes. Without a remedy limitation contractually binding the Volovetzes, the trial court's reasoning for granting summary judgment fails. Accordingly, we sustain the first assignment of error.

Subject to the provisions of subsections (2) and (3) of this section and of ORS 72.7180 on liquidation and limitation of damages: (a) The 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, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and (b) Resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy. (2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in the Uniform Commercial Code. (3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.

Where the seller justifiably withholds delivery of goods because of the buyer’s breach, the buyer is entitled to restitution of any amount by which the sum of the buyer’s payments exceeds: (a) The amount to which the seller is entitled by virtue of terms liquidating the seller’s damages in accordance with subsection (1) of this section; or (b) In the absence of such terms, 20 percent of the value of the total performance for which the buyer is obligated under the contract or $500, whichever is smaller. (3) The buyer’s right to restitution under subsection (2) of this section is subject to offset to the extent that the seller establishes: (a) A right to recover damages under the provisions of this chapter other than subsection (1) of this section; and (b) The amount or value of any benefits received by the buyer directly or indirectly by reason of the contract.

limitation of liability clauses are not unconscionable merely because buyers are not fully protected for damages that may arise from the malfunction of their purchased goods or service.

The fact that plaintiffs in this case have no protection other than their bargained for remedy of replacement film does not make the limitation of liability clause unconscionable.

In this case, plaintiffs did not avail themselves of the opportunity to submit evidence demonstrating that the limitation of liability was unconscionable in light of the general commercial background and the commercial needs of this particular trade or case, and consequently, the hearing justice properly granted summary judgment on this issue.

The plaintiffs also maintain that the limitation of liability clause failed its essential purpose — to adequately protect the filmmakers from damages arising from defective film.

Limitation, alteration, or exclusion of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable

To be effective, disclaimers of implied warranties must meet certain statutory requirements in accordance with G.L.1956 § 6A-2.1-214.

If the dealer or his or her agent fails to correct a malfunction or defect as required by the warranty specified in this section which substantially impairs the value of the used motor vehicle to the consumer after a reasonable period of time, the dealer shall accept the return of the used motor vehicle from the consumer and refund to the consumer the full purchase price including sales or compensating use tax

The same malfunction or defect has been subject to repair three (3) or more times by the selling dealer or his or her agent within the warranty period, but the same malfunction or defect continues to exist

The vehicle is out of service by reason of repair or malfunction or defect for a cumulative total of fifteen (15) or more days during the warranty period.

To the extent otherwise permitted by law, for loss of the use of the used motor vehicle, loss of time, inconvenience, commercial loss, or consequential damages.

The limitation of liability clause’s pertinent part reads: “Limitation of Liability: This product will be repaired if defective in manufacture or packing. Except for such replacement this product is sold without warranty or liability even though defect, damage or loss is caused by negligence or other fault

It shall be an affirmative defense to any claim under this section that: (1) The malfunction or defect does not substantially impair the used motor vehicle’s value; or (2) The malfunction or defect is the result of abuse, neglect, or unreasonable modifications or alterations of the used motor vehicle.

First, plaintiffs assert that “in making its determination as to the unconscionability of the contract or clause, the court erred in not affording [plaintiffs] a reasonable opportunity to present evidence as to its commercial setting, purpose and effect,” as required by G.L.1956 § 6A-2-302 (2), to support their claim that the waiver of liability was unconscionable “in light of the general commercial background and commercial needs of the particular trade or case.”

In sum, we conclude that the hearing justice’s granting of the defendant’s motion for summary judgment was correct. Accordingly, we deny and dismiss the plaintiffs’ appeal and affirm the summary judgment entered below.

Although the disclaimer of warranties provision is in full compliance with the UCC provisions in terms of its conspicuousness and language, we conclude that in Rhode Island, a disclaimer for personal injuries arising from the use of a consumer product introduced into the stream of commerce is “unconscionable.”

Accordingly, because this was a consumer lease, we conclude *270 that the trial justice erred in granting summary judgment on this basis.

Alternatively, the dealer may elect to offer to replace the used motor vehicle with a comparably priced vehicle, with any adjustment in price that the parties may agree to. The consumer shall not be obligated to accept a replacement vehicle, but may instead elect to receive the refund provided under this section.

If the consumer fails to make the payment within thirty (30) days, the dealer shall have no further responsibility to provide a refund under this section.

(1) Subject to the provisions of subsections (2) and (3) of this section and of § 57A-2-718 on liquidation and limitation of damages, (a) The 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, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and (b) Resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.

Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title.

Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

To permit the manufacturer of the pesticide to escape all consequential responsibility for the breach of contract by inserting a disclaimer of warranty and limitation of consequential damages clause, such as was used herein, would leave the pesticide user without any substantial recourse for his loss. One sided agreements whereby one party is left without a remedy for another party's breach are oppressive and should be declared unconscionable.

(2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.

In that case a farmer brought a breach of warranty action against a seed corn supplier for the sale of defective seed. The delivery receipt contained a limitation of warranty and remedy similar to that contained on the seed bags in this case. This court unanimously [2] affirmed the trial court's determination that the disclaimer and limitation of damages were unconscionable.

The holdings in Durham, supra, and Hanson, supra, are equally applicable to this case. Nible and Schmaltz, like most farmers, were not in a position to bargain for more favorable contract terms, nor were they able to test the seed before their purchase. A loss of yield from an intended crop due to inferior seed is inevitable, and they should not be left without a remedy.

South Dakota Codified Laws 57A-2-719(2) does not permit the seller to be dilatory or negligent in its contract in failing to repair or replace defective goods.

In our opinion, this is the crucial question that separates the ordinary repair and replacement situation from the “lemon.” It is a question of fact.

Accordingly, we remand the case for a new trial on the issue of failure of a limited remedy under SDCL 57A-2-719(2), and for determination of such damages, if any, allowable in conformity with this opinion.

Appellee Hanson, like most farmers, was not in a position to bargain for more favorable contract terms, nor was he able to test the seed before the purchase. A crop failure is inevitable if the corn seed is ineffective and to enforce the provisions here in question, which would only allow the return of the purchase price, would leave appellee without any substantial recourse for his loss. In essence, appellee would be left without a remedy for another’s breach. Cf. Rozeboom v. Northwestern Bell Telephone Co., 358 N.W.2d 241, 242 (S.D.1984). The trial court’s determination that these provisions were unconscionable is therefore not in error and we uphold its decision in this regard.

Although Hanson was a three to two decision, the opinion as it related to the unconscionability of the disclaimer of warranty and limitation of damages provision was unanimous. The issue upon which the justices split was whether the plaintiff proved the existence of a defect.

In 1986 the South Dakota Legislature passed a legislative enactment found at Chapter 410 of the 1986 Session Laws. This legislative enactment states: "BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA: The ruling in Decision II of Hanson v. Funk Seeds International, 373 N.W.2d 30 (S.D. *663 1985) is hereby abrogated."

The cause of action in the present case arose in 1981. Nowhere in the legislative enactment is there any statement that this act is retroactive or that it is intended to be curative or explanatory of prior legislation. SDCL 2-14-21 provides: "No part of the code of laws enacted by § 2-16-13 shall be construed as retroactive unless such intention plainly appears." Since there is no retroactive intent from the enactment, it has no application in this case. The decision of the trial court holding the disclaimer of warranties and limitation of damages unconscionable is affirmed.

(a) Subject to the provisions of Subsections (b) and (c) of this section and of the preceding section on liquidation and limitation of damages, (1) the 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, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of non-conforming goods or parts; and (2) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy. (b) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title. (c) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

(a) Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or non-feasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty. (b) Where the seller justifiably withholds delivery of goods because of the buyer's breach, the buyer is entitled to restitution of any amount by which the sum of his payments exceeds (1) the amount to which the seller is entitled by virtue of terms liquidating the seller's damages in accordance with Subsection (a), or (2) in the absence of such terms, twenty percent of the value of the total performance for which the buyer is obligated under the contract or $500, whichever is smaller.

However, the limited remedy fails of its essential purpose and deprives the buyer of the substantial value of the bargain when the warrantor does not correct the defect within a reasonable time.

The failure of a limiting clause’s essential purpose is a matter properly pled and submitted to the jury when contested.

(a) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. (b) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.

Subject to the provisions of Subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages, the 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, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.

Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this act. Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.

The fundamental question before us is whether the trial court correctly held that the failure of essential purpose of a repair or replace provision in a limited warranty does not affect the validity of a companion provision in the warranty precluding incidental and consequential damages or, in other words, that subparts (2) and (3) should operate independently.

Under Devore , if the seller provides a limited warranty under subpart (2) and that warranty fails of its essential purpose, all damages provided in the act are available, including incidentals and consequen-tials. However, if the contract containing the limited warranty also contains a limitation of incidental and consequential damages, then upon proof of the failure of the limited warranty of its essential purpose, the buyer may be entitled to other remedies provided in the act, but not incidental and consequential damages, unless the court first finds that that limitation would be unconscionable.

Under such an approach, the trial court confronted with an issue of unconscionability takes into account any disparities in bargaining power between the parties, the negotiation process, if any, and the type of contract entered into by the parties, specifically addressing whether the contract was one of adhesion. As noted above, in practice after these factors are examined and weighed, a trial court will generally find that provisions limiting incidental and consequential damages are unconscionable in consumer settings and conscionable in commercial settings.

In light of the foregoing, we conclude that the trial court erred in ruling on the motion for partial summary judgment that, as a matter of law, Schurtz was not entitled to incidental and consequential damages. Although the trial court correctly held that subparts (2) and (3) of section 2-719 are to be read independently, it erred by not then determining whether the facts of this case warrant a finding that the limitation of incidental and consequential damages is unconscionable under subpart 2-719(3).

A number of logical, sound reasons mandate why, without more, the failure of a limited remedy of repair should not invalidate a wholly distinct clause of the contract excluding recovery for consequential damages. In the first place, the substantive content of subsections (2) and (3) of the statute are distinctly different. Subsection (2) focuses on failure of essential purpose while subsection (3) depends on a judicial determination of unconscionability.

We adopt what we believe to be the sounder and better reasoned rule that conspicuous language is not required in a writing to create a valid limitation of remedy.

The question then becomes whether the *593 failure of the essential purpose of the limited remedy automatically results in abrogation of the consequential damages disclaimer. We hold that it does not. Although there is a split of authority on this issue, see Chatlos Systems v. National Cash Register Corp., 635 F.2d 1081 , 1086 (3rd Cir. 1980), cert. dismissed, 457 U.S. 1112 (1982), we conclude that the consequential damages disclaimer in this case should be treated as an independent contractual provision, valid unless unconscionable.

Noting that the principals of the parties to this contract were “sophisticated businessmen with access to legal counsel,” the trial court ruled that the contract was not unconscionable, a ruling Halco does not attack.

Unlike Code § 8.2-316(2) 1 which requires conspicuous language to exclude or modify the implied warranties of merchantability or of fitness for a particular purpose, Code § 8.2-719 2 , which expressly *569 recognizes that the contracting parties may bargain for a limitation of remedy, contains no such requirement.

UCC § 8.2-719, dealing with contractual modification or limitation of remedy, provides, in part, “(1) Subject to the provisions of subsections (2) and (3) of this section . . . (a) the agreement may provide for remedies in addition to or in substitution for those provided in this title and may limit or alter the measure of damages recoverable under this title, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and “(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this act. “(3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable . . . .”

Consequently, in view of the unchallenged ruling by the trial court that the damage exclusion clauses were not unconscionable at inception of the contract and there being no circumstances *594 in the failure by defendant to perform that make it unconscionable to enforce the parties’ allocation of risk, we conclude that the clauses are valid and enforceable. Thus, the trial court erred in submitting Halco’s claim for consequential damages to the jury; judgment in favor of Envirotech should have been entered at the conclusion of the evidence.

Because the testimony of Kidwell and Wilkinson’s president raises an issue of fact whether the limitation of remedy became a part of the bargain between the parties, we hold that the trial court erred *570 in refusing to submit that issue to the jury. Therefore, we will reverse the judgment against Flintkote in favor of Wilkinson and Kidwell on their breach of warranty claims and remand those claims for a new trial.

“(3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.”

For these reasons, the judgment in favor of Halco on the main claim will be annulled and final judgment will be entered here for *595 Envirotech. The judgment in favor of Envirotech on the counterclaim will be affirmed. Affirmed in part, reversed in part, and final judgment.

Limitations on consequential damages are generally valid under the U.C.C. unless they are unconscionable. RCW 62A.2-719(3). Whether a limitation on consequential damages is unconscionable is a question of law.

“Exclusionary clauses in purely commercial transactions . . . are prima facie conscionable and the burden of establishing unconscionability is on the party at *586 tacking it.” American Nursery Prods., 115 Wn.2d at 222 . If there is no threshold showing of unconscionability, the issue inay be determined on summary judgment.

We find the result in Tacoma Boatbuilding an accurate analysis of Washington’s law of substantive unconscionability and adopt it here. In a purely commercial transaction, especially involving an innovative product such as software, the fact an unfortunate result occurs after the contracting process does not render an otherwise standard limitation of remedies clause substantively unconscionable.

In American Nursery this court made another modification and extension of the Berg/Schroeder analysis. In that case we confirmed the use of the two-prong Berg analysis for consumer transactions involving warranty disclaimers and in commercial transactions for the sale of goods where there is sufficient evidence of unfair surprise. 115 Wn.2d at 223-24 . We thus also confirmed the Schroeder totality of the circumstances analysis for clauses excluding (or limiting) *440 liability for consequential damages in commercial transactions for services where there is insufficient evidence of unfair surprise. Id. at 222-23; see also Cox v. Lewiston Grain Growers, Inc., 86 Wn. App. 357, 367-70 , 936 P.2d 1191 (1997). Finding no indicia of unfair surprise, this court then specifically applied the Schroeder analysis to a contract for services between commercial parties. Am. Nursery, 115 Wn.2d at 224-25 . In applying the Schroeder totality of the circumstances analysis to determine conscionability, we referenced RCW 62A.2-719(3), which states, “Limitation of other consequential damages is valid unless it is established that the limitation is unconscionable.”

The court rejected this theory: Comment 3 to [U.C.C.] § 2-719 generally approves consequential damage exclusions as “merely an allocation of unknown or undeterminable risks.” Thus, the presence of latent defects in the goods cannot render these clauses unconscionable. The need for certainty in risk-allocation is especially compelling where, as here, the goods are experimental and their performance by nature less predictable. Tacoma Boatbuilding, 28 U.C.C. Rep. Serv. at 35 (citation omitted).

We find Mortenson’s unconscionability claim unpersuasive and, therefore, find the limitation of remedies clause to be enforceable. CONCLUSION Mortenson has failed to set forth any material issues of fact on the issue of contract formation, and has also failed to make a threshold showing of unconscionability sufficient to avoid summary judgment. We affirm the Court of Appeals, upholding the trial court’s order of summary judgment of dismissal and denial of the motions to vacate and amend.

In Schroeder we recognized the following nonexclusive factors to consider in assessing the unconscionability of a liability exclusionary clause: (1) the conspicuousness of the clause in the agreement, (2) the presence or absence of negotiations regarding the clause, (3) the custom and usage of the trade, and (4) any policy developed between the parties during the course of dealing. Schroeder, 86 Wn.2d at 259-61 . Additionally, in American Nursery, we noted that “[ujnconscionability is determined in light of all the surrounding circumstances, including (1) the manner in which the parties entered into the contract, (2) whether the parties had a reasonable opportunity to understand the terms of the contract, and (3) *442 whether the important terms were hidden in a maze of fine print.” 115 Wn.2d at 222

We thus hold, as a matter of law, that the totality of the circumstances support the conscionability and enforceability of the liability limitation clause in the contract for services between Factors and Unisearch. We reverse the Court of Appeals decision and affirm the trial court’s grant of summary judgment limiting Unisearch’s liability, if any, to the amount of the fee charged for its service.

All of the search reports included the statement, “The responsibility for maintaining public records rests with the filing officer, and Unisearch, Inc. will accept no liability beyond the exercise of reasonable care.” 1 Unisearch charged $25 for each search, and every invoice contained the statement “Liability Limited to Amount of Fee.”

According to the decision in Berg , warranty disclaimers in a contract must be both (1) explicitly negotiated and (2) set forth with particularity. Id. at 196 . The presumption leans against the warranty disclaimer, and the burden lies on the party seeking to include the disclaimer to prove its legality. Id. at 194 .

However, Article 2 allows buyers and sellers, subject to certain limits discussed below, to make other remedies available in their contract, including “limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts.” WIS. STAT. § 402.719(1)(a). Where a contractually specified remedy “is expressly agreed to be exclusive, … it is the sole remedy.” Sec. 402.719(1)(b).

Buddy’s relies on the distinction drawn in the UCC and the contract between breaches of contract and breaches of warranty and the remedies available for each. For example, Buddy’s notes that the UCC provides different remedies for nondelivery of goods and a breach of warranty.

As explained below, we conclude that the warranty clause does apply to Viking’s breach of contract. Furthermore, the limitation of liability language in the clause does not fail of its essential purpose and is not unconscionable.

Buddy’s first contends that the trial court erred in applying the warranty clause to Viking’s failure to deliver the machine.

By its terms, this language applies the limited remedy broadly to “the Contract”—not just the express warranty—and to “any damages arising out of it.” (Emphasis added.) This language would apply both to Viking’s delivery of a defective or nonconforming machine and also to what occurred here—the failure to deliver a nondefective machine. Buddy’s argument that the warranty clause only applies if the machine is delivered but defective or nonconforming cannot be reconciled with this broader language.

Buddy’s reliance on the different remedies provided in the UCC for nondelivery and breaches of warranty does not save its argument. Although the Code provides distinct remedies for these breaches, it also permits parties to contract for additional or entirely different remedies. See WIS. STAT. § 402.719(1)(a) (stating that 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”). Moreover, the Code makes clear that if the parties agree that a different remedy “is expressly agreed to be exclusive, … it is the sole remedy.” Sec. 402.719(1)(b).

Article 2 specifies the following remedy for a buyer’s failure to deliver: the measure of damages for nondelivery … by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided in [WIS. STAT. §] 402.715, but less expenses saved in consequence of the seller’s breach. WIS. STAT. § 402.713(1).

Under WIS. STAT. § 402.719(2), “[w]here circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in chs. 401 to 411.” Our supreme court has explained that § 402.719 “gives the parties substantial latitude to fashion their own remedies for breach of the contract.” Murray v. Holiday Rambler, Inc., 83 Wis. 2d 406, 418, 265 N.W.2d 513 (1978); see also Southern Fin. Grp., LLC v. McFarland State Bank, 16 No. 2023AP2428 763 F.3d 735, 741 (7th Cir. 2014) (“Wisconsin courts enforce agreements in which parties allocate risk in advance.”). But a limited remedy agreed to by the parties will not be enforced under the UCC “where [it] would effectively deprive a party of reasonable protection against breach.” Murray, 83 Wis. 2d at 418. The Code requires “that at least minimum adequate remedies be available” to provide “at least a fair quantum of remedy for breach of the obligations or duties outlined in the contract.” Murray, 83 Wis. 2d at 419 (quoting U.C.C. § 2-719, cmt. 1).

It relies on WIS. STAT. § 402.719(3), which allows parties to limit or exclude consequential damages “unless the limitation or exclusion is unconscionable.” “To be declared invalid as unconscionable, a contract or contract provision must be determined to be both procedurally and substantively unconscionable.” Aul v. Golden Rule Ins. Co., 2007 WI App 165, ¶26, 304 Wis. 2d 227, 737 N.W.2d 24; see also Wisconsin Auto Title Loans, Inc. v. Jones, 2006 WI 53, ¶¶29, 33, 290 Wis. 2d 514, 714 N.W.2d 155. The procedural aspect of unconscionability examines factors surrounding the contracting process to 20 No. 2023AP2428 determine whether one party faced “an absence of meaningful choice.” Deminsky v. Arlington Plastics Mach., 2003 WI 15, ¶27, 259 Wis. 2d 587, 657 N.W.2d 411; see also Aul, 304 Wis. 2d 227, ¶26 (listing factors). Substantive unconscionability, in contrast, examines “the reasonableness of the contract terms themselves, that is, whether they are commercially reasonable or unreasonably favor the more powerful party.

Unconscionability rarely exists in a commercial setting involving parties of equal bargaining power.” Trinkle v. Schumacher Co., 100 Wis. 2d 13, 19-20, 301 N.W.2d 255 (Ct. App. 1980). “This is because there is little need for the court to protect the interests of savvy commercial parties in dealings with each other.” Dry Dock, L.L.C. v. Godfrey Conveyor Co., 717 F. Supp. 2d 825, 834 (W.D. Wis. 2010). Here, Buddy’s has not carried its heavy burden of convincing us that judicial alteration of the terms of the parties’ bargain is necessary.

The reason is that the limited remedy in the warranty clause is tied to the express warranty set forth in the clause. The clause begins by setting forth the express warranty given by Viking. The next two sentences obligate Viking to “repair or replace broken or defective Equipment” and specify that the warranty extends only to Buddy’s. The following sentence identifies three categories of defects and damages which are not covered by the express warranty. The clause then disclaims any other express or implied warranties and excludes liability for “indirect, special, incidental or consequential damages, or loss of profits … whether based in contract or tort, resulting from the supply, failure to supply, or failure or malfunction of the Equipment.” ¶51 After specifying what warranties and liabilities are not included in the contract, the last two sentences of the clause address the warranty and liability that are included. Those sentences tie Viking’s liability to the express warranty set forth at the start of the clause. They state that Buddy’s remedy for any damages under the Contract is limited to the express warranty, which states that Viking’s liability under that warranty is “limited to the amount paid to [Viking] hereunder.” Because Viking’s liability under the contract is limited to, and defined by, the express warranty set forth in the warranty clause, the provisions in the clause pertaining to Viking’s liability are not “inappropriately masked” there. See Phillips, 131 Wis. 2d at 38.

For the reasons explained above, we conclude that the damage limitation provisions contained within the warranty clause of the contract apply to Viking’s failure to provide the stick pack machine. The limited remedy does not fail of its essential purpose and is not unconscionable. Therefore, the trial court did not err when it limited Buddy’s recoverable damages to the amounts it had paid Viking and declined to award consequential damages. By the Court.—Judgment affirmed.

Although we do not disagree with the trial court's conclusion that a disclaimer of liability or a limitation on damages that is inappropriately masked under a heading captioned, "Warranty," is in itself a reason to disregard it, we look to the merits of the Phillips' argument that damages ought not be limited to replacement of the defective part F.O.B. Erie because, under sec. 402.719(2), Stats.: " (2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in chs. 401 to 409."