Liability and penalty clause in contracts

Questioner

Dear Sir/Madam, In B2B services, liability can be excluded by means of an exemption clause in the general terms and conditions. However, it must be stated that liability remains in the event of intent or gross negligence. According to the law, a penalty clause takes the place of compensation for damages. I am wondering the following: can you include in an agreement that a penalty clause will come into effect in the event of intent or gross negligence? So firstly you try to limit liability through the exoneration clause and if this does not work (because there is gross negligence, for example) is it then possible to activate the penalty clause? Thank you in advance for your answer!

Lawyer

I assume that this clause of the exclusion of liability applies to you and the penalty clause to the other party? In bb relationships the other party also uses conditions, I think you should also pay attention to that. In principle, if you cannot free yourself from your liability due to intent or gross negligence, a breach of contract or unlawful act is a fact. Liability for damages can indeed be agreed in the conditions (penalty clause instead of compensation)