We are unable to advise on the monetary value the members insert at clause 5.4b, and must advise members to take their own legal advice on this point. However, we would comment that the figure inserted in clause 5.4b seeks to provide a suitable financial cap on a member's liability under the EULA. An amount of £250 has been suggested by at least one public sector organisation, and this may be a reasonable amount to cover most circumstances in which a supply of OS data is provided to a community organisation, individual or amateur association. For supplies of OS data to a commercial entity, for example where that person is obtaining OS data in connection with a regulatory assessment or obligation, a higher liability cap may be more appropriate.
What is considered reasonable will need to be based on a number of factors, including the following:
- The likely nature and extent of the risks of anything going wrong
- An assessment of the damages that would be payable in the event of a claim in negligence
- The resources that a member could have to meet any liability (including the possibility or recovery under the member licence)
- The amount and cover available under the member's relevant insurance policy
- Any previous dealings between the members and end users.
- A liability cap that is deemed to be unreasonable under unfair contract terms legislation would be unenforceable, and if struck out may expose a member to potentially unlimited liability. It is therefore recommended to seek to insert a suitable amount that is not so low as to risk being deemed unreasonable, nor so high as to be disproportionate to the EULA risks. Members should seek their own legal advice in relation to this point.