Consequential damages may still apply even when the parties have a waiver in their contract. Including a waiver does not mean that you are free and clear.
Here are four situations when you may still face consequential damages despite having a waiver in your contract:
Your waiver exceptions - Your consequential damages waiver usually has exceptions. If the exceptions are broadly drafted, such as any breach of intellectual property or confidentiality sections, you may have exposure to potential consequential damages for those claims.
Judgment against your counterparty - Your indemnity clause may obligate you to reimburse your counterparty for all losses and damages paid to a third party that arose from your product or services. If your counterparty pays consequential damages to a third party, you may have to reimburse those.
Failure of the essential purpose - If your warranty has an exclusive remedy that proves inadequate, your entire waiver of consequential damages may be unenforceable. It depends on your jurisdiction and the reasonableness of your liability cap.
Unconscionable - Courts may not enforce consequential damages waivers that are unconscionable.