10.5 Conclusion

Whether the invocation of an exemption clause is unacceptable on the basis of the principles of reasonableness and fairness should be decided using the circumstances set out in the Saladin/HBu judgment. In contracts between professional between professional parties, extra restraint is called for when applying this test.

The invocation of an exemption clause is, as a general rule, unacceptable on the basis of reasonableness and fairness in the case of the supplier's own w-ilful misconduct or conscious recklessness or that of its top level management. The invocation of an exemption clause in any other circumstances is a contrario (in principle) allowed.

In contracts between professional parties, and more specifically in ICT contracts between professional parties, the degree of culpability is the most important Saladin/HBu circumstance. The following circumstances are also of importance: the difference in technologica) expertise between the supplier and the customer, the nature and gravity of the customer's interest in proper performance by the supplier and the nature and gravity of the damage which the customer suffers as a result of the supplier's breach. The other Saladin/HBu circumstances should have little or no bearing on the fate of an exemption clause.

Parties are free to allocate risks. Contracting is allocating risks. Entering into exemption clauses is also allocating risks. Courts should respect this freedom as much as possible.