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Two businesses negotiated a contract for a complex data migration. The contract states that delay will require $5,000 per day. At signing, lost productivity was uncertain and the daily amount was not unreasonable compared with the expected disruption.
What is the best rule for the clause?

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The clause is unenforceable because a fixed daily sum is necessarily a penalty. The clause is enforceable only if the data company proves actual damages equal exactly $5,000 for each day of delay. The clause is enforceable merely because both parties signed, even if the amount was unreasonable when made. In a negotiated commercial contract, the clause is generally enforceable unless the party resisting it shows the amount was unreasonable under the circumstances existing when the contract was made.

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