NEC ECC: How does X18 'Limitation of Liability' determine what the Liability is limited to?

What is this specifically limiting?

There are two elements to X18. There is the clause wording in the secondary options from X18.1-X18.5, and there is the relevant section completed in contract data part 1.

The first four clauses within X18 state that liability for:

  1. Employers indirect or consequential loss
  2. for any one event, damage to Employers property
  3. defects due to design
  4. total liability to the Employer for all matters other than those excluded
    are all limited to the amount stated in contract data - so you need to see in Contract Data how much they are limited to.

Even if X18 is included, it states that delay damages, low performance damages and “pain share” if over target under option C are excluded from any limitation i.e. still unlimited. If X18 is not included then the Contractor has unlimited liability - which is not a risk most want or can afford to take, and they may also find their insurances do not cover them for unlimited liability. Several Contractors/Consultants have refused to tender on this point alone as not a risk they are prepared to take for their business.

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