On further thought: SA may be arguing that willful or intentional misconduct by Amarex voids the limitation of liability and damages provision. Under the MSA paragraph posted by Rantes from YMB, gross negligence is necessary to recover "aggregate damages," but the same paragraph prohibits consequential and special (punitive) damages under any circumstances. Nevertheless, perhaps SA has found controlling case law holding that limitation of liability provisions are unenforceable if the claimant's damages were caused by willful or intentional misconduct. Such a holding would certainly be consistent with sound public policy.

To explore the viability of the above theory further would necessitate knowing which state law controls disputes arising under the MSA. Almost assuredly, the MSA contains a provision that it be construed under the laws of a particular state -- likely Amarex's state of incorporation, since the subject wording suggests preparation by Amarex's lawyers. SA would have researched the statutes and case law of that jurisdiction to determine if willful or intentional misconduct could undo the limitation of lability language here on grounds of public policy so as not to reward intentional misconduct.

Now, proving willful or intentional misconduct is obviously a high bar, but from what we think we know about Amarex's performance here, it would seem to be in play. All of the above might also explain why the Amarex dispute hasn't't settled.

Thanks to a trusted member of our board for getting thinking about a public policy argument to negate the limitation of liability provision.