Dolliver, J.
In the fall of 1983 defendant Indian Wells Orchards decided to acquire apple trees for development of a 500-acre orchard. After contacting various commercial nurseries to grow the trees, Indian Wells entered negotiations with plaintiff American Nursery Products, Inc., doing business as Mount Arbor Nurseries (Mt. Arbor). Pursuant to preliminary discussions between the parties, Mt. Arbor drafted a proposed contract for approval by Indian Wells. After discussing the proposed contract, a revised contract was delivered to the general manager of Indian Wells during December 1983. On January 18, 1984, after reading the revised contract and reviewing it with other Indian Wells representatives, the general manager executed the contract on behalf of Indian Wells.
The entire contract consists of six pages, the last of which is exclusively devoted to signatures and arrangements on financing. It is written in normal size type and double spaced between paragraphs. The terms of the agreement include the duties of the parties, the allocation [220]*220of risk, guidelines for acceptance and rejection of deliveries, and the available remedies. Under the terms of the agreement, Mt. Arbor was to grow 200,000 grafted apple trees and 500,000 budded apple trees for Indian Wells. Indian Wells was to provide the 700,000 trees for growing and Mt. Arbor was to provide up to 65,000 understocks for grafting and budding as necessary to compensate for mortality during the nursery phase. Trees produced by grafting were to be delivered in the fall of 1984 or spring of 1985, and trees produced by budding were to be delivered in the fall of 1985 or spring of 1986. By agreement of the parties, the deliveries took place in the spring of 1985 and 1986.
The parties agreed they were entering into a service agreement and no warranties, express or implied, were given which extended beyond the conditions and services in the contract. Mt. Arbor did warrant, however, that at least 88 percent of the delivered trees would have a caliper size greater than five-sixteenths of an inch. Any trees not meeting this standard could be rejected by Indian Wells.
The contract provided for a 15-day period within which Indian Wells could inspect and count the delivered trees and give notice of rejection of the delivery or adjustment to the bill of lading. In the event of rejection by Indian Wells, paragraph 5.2 provided for a limited remedy whereby "Grower [Mt. Arbor], at its option, shall replace the nonconforming Trees or reduce the purchase price."
Once the trees were accepted, the contract placed the risk of loss upon Indian Wells. Paragraph 3.4 provided:
All Trees shall be maintained by Grower in a moist condition between the time of harvest and the time of delivery to Owner [Indian Wells], after which delivery Owner accepts all maintenance responsibility for, and risk of loss to, the Trees.
The contract in section 9 entitled "Default; Remedies" further provided in paragraph 9.3:
The party declaring default shall have all rights provided under the Washington Uniform Commercial Code and other applicable laws of the State of Washington and the terms and provisions of this Agreement; provided that in no event shall Grower be subject to or liable for incidental or consequential [221]*221damages. All rights and remedies of either party may be exercised consecutively, successively and cumulatively. The prevailing party shall be entitled to reimbursement for any expenses incurred by it in enforcing and protecting its rights under this Agreement, including but not limited to reasonable attorney fees and expenses.
Pursuant to the contract, the rootstocks and the budding and grafting wood were delivered by Indian Wells to Mt. Arbor. Prior to planting the grafted and the to-be-budded rootstocks in 1984, Mt. Arbor dipped the rootstocks in various fungicides and bactericides, including Ridomil 2E. Ridomil 2E is considered by its manufacturer to be an extremely erratic chemical which can, and does, cause damage to rootstocks at lesser concentrations than those used by Mt. Arbor. After the dipping in Ridomil, many of the grafted rootstocks broke and died and many of the to-be-budded rootstocks died prior to budding or failed to grow in a normal manner. Consequently, Mt. Arbor delivered only 108,158 of the 200,000 grafted trees and 372,360 of the 500,000 budded trees anticipated under the contract. Of those trees delivered, approximately 32,750 were rightfully rejected by Indian Wells. Of those accepted and planted, 89,983 later died. Indian Wells was able to cover 190,790 of the 342,215 trees short under the contract. Of the trees covered, 73,164 are 1 year behind in production.
In April 1986, Mt. Arbor brought suit against Indian Wells in the Superior Court for Yakima County to recover the sums due under the contract. Indian Wells counterclaimed alleging breach of contract and negligence.
The trial court, sitting without a jury, found the dipping of the rootstocks in Ridomil proximately caused over $2.3 million in direct and consequential damages and constituted negligence per se and a breach of contract. Over $1.7 million of these damages resulted from production losses. The damages, plus attorney fees and costs of $147,198.01, were reduced by the $383,528.44 still due under the contract, and a judgment of $2,081,854.10 was awarded to Indian Wells. In awarding these damages, the trial court [222]*222held the provision in the agreement which excluded incidental and consequential damages was unconscionable, unenforceable and against public policy. We granted Mt. Arbor's appeal. We affirm in part and reverse in part.
The first issue is whether the contractual limitation on incidental and consequential damages is unconscionable under RCW 62A.2-719(3). We have held RCW Title 62A applicable to bailments arising from a service transaction. Mieske v. Bartell Drug Co., 92 Wn.2d 40, 593 P.2d 1308, 6 A.L.R.4th 923 (1979). RCW 62A.2-719(3) provides:
Limitation of . . . consequential damages is valid unless it is established that the limitation is unconscionable.
Whether an exclusionary clause is unconscionable is determined as a question of law. Schroeder v. Fageol Motors, Inc., 86 Wn.2d 256, 262, 544 P.2d 20 (1975). Exclusionary clauses in purely commercial transactions, such as the one at hand, are prima facie conscionable and the burden of establishing unconscionability is on the party attacking it. See Schroeder, at 262-63. Appellate review of a conclusion of law, based upon findings of fact, is limited to determining whether a trial court's findings are supported by substantial evidence, and if so, whether those findings support the conclusion of law. Willener v. Sweeting, 107 Wn.2d 388, 393, 730 P.2d 45 (1986). Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth of the declared premise. Holland v. Boeing Co., 90 Wn.2d 384, 390-91, 583 P.2d 621 (1978). In reviewing the record, we find there is substantial evidence to support the trial court's findings of fact. However, we do not agree these findings support the legal conclusion of unconscionability.
Unconscionability is determined in light of all the surrounding circumstances, including (1) the manner in which the parties entered into the contract, (2) whether the parties had a reasonable opportunity to understand the terms of the contract, and (3) whether the important terms were hidden in a maze of fine print. Schroeder, at 260. None of these factors is conclusive; rather, unconscionability is determined under the totality of the circumstances. [223]*223Schroeder, at 260. The party defending the clause may prove the clause is conscionahle regardless of the surrounding circumstances if the general commercial setting indicates a prior course of dealing or reasonable usage of trade as to the exclusionary clause. See Mieske v. Bartell Drug Co., supra at 49; Schroeder, at 260-61; Hartwig Farms, Inc. v. Pacific Gamble Robinson Co., 28 Wn. App. 539, 546-47, 625 P.2d 171 (1981). The trial court found no prior dealings between the parties and no trade usage. Therefore, whether the exclusionary clause is conscionahle is controlled by an analysis of the three Schroeder factors.
In consumer sales transactions, the manner in which parties enter into contracts is strictly regulated. In order to uphold an exclusionary clause in the consumer sales context, the clause must be "explicitly negotiated between buyer and seller", and the remedies being excluded must be "set forth with particularity". See Berg v. Stromme, 79 Wn.2d 184, 196, 484 P.2d 380 (1971); Miller v. Badgley, 51 Wn. App. 285, 293, 753 P.2d 530 (1988); Thomas v. Ruddell Lease-Sales, Inc., 43 Wn. App. 208, 213, 716 P.2d 911 (1986). While Berg involved a disclaimer in a consumer sales transaction, the Berg rule has been extended to cases involving exclusionary clauses under RCW 62A.2-719(3). Baker v. Seattle, 79 Wn.2d 198, 484 P.2d 405 (1971).
In Schroeder, we stated the Berg rule also applied to commercial transactions in which both litigants were business persons. Schroeder, at 261 (citing Dobias v. Western Farmers Ass'n, 6 Wn. App. 194, 491 P.2d 1346 (1971)). However, a close reading of Schroeder indicates that, rather than extending the Berg rule to all commercial transactions, the concern was to prevent the utilization of '"unfair surprise' to the detriment of one of the parties." Schroeder, at 262.
In Schroeder, the buyer purchased a used truck from Fageol Motors. The truck warranties and disclaimers were not set forth in the purchase order signed by the buyer; instead, these clauses were buried in an owner's manual. [224]*224Schroeder, at 257. The seller did not go through the owner's manual or advise the buyer of the existence of any disclaimers or exclusionary clauses; it simply directed the buyer to place the book in the glove box. Schroeder, at 257. Similarly, the disclaimer in Dobias was not a part of the commercial contract signed by the parties but was printed on the label of the product. Dobias, at 200. In addition, the manufacturer represented that the product was suitable for the proposed purpose. Dobias, at 199.
While Schroeder held there was no reason to prohibit the application of the Berg rule to transactions between business persons, Schroeder did not hold that Berg should be applied to every commercial transaction. To so hold would unnecessarily interfere with the freedom to contract in the commercial context. In consumer sales transactions, intervention is warranted to counteract the inherent inequality of bargaining power and the resultant inequities. Parties to a commercial contract, however, generally have equal bargaining power and an equal ability to seek advice and alternative offers. As a result, commercial contracts are less subject to the type of unfair surprise which may be found in consumer sales transactions. This being so, only those commercial transactions with sufficient indicia of unfair surprise in the negotiations should be subject to the Berg rule.
Consistent with this position, we have refused to apply the Berg requirements to negotiations between competent persons dealing at arm's length, with no claim of an adhesion contract, when the contract contains a specific disclaimer and when the contract language is clear. See Frickel v. Sunnyside Enters., Inc., 106 Wn.2d 714, 721, 725 P.2d 422 (1986); see also Travis v. Washington Horse Breeders Ass'n, Inc., 111 Wn.2d 396, 402, 759 P.2d 418 (1988).
The stricter Berg rule is not warranted here. The contract was negotiated by the parties. The text of the entire contract was only six pages in length. The exclusionary clause was located in a section clearly labeled "Default; [225]*225Remedies", and the contract language was clear in excluding incidental and consequential damages. As in Frickel, there are no indicia of unfair surprise in the negotiations between the parties to warrant application of the Berg rule.
The second Schroeder factor is also met because the parties had a reasonable opportunity to understand the terms of the contract. Although the trial court believed the general manager of Indian Wells did not have the ability to know or understand fully the meaning of the exclusionary clause, the manager did have a reasonable opportunity to understand the provision. The manager had the contract from sometime in December 1983 until January 18, 1984, certainly sufficient time to read the contract and seek advice as to any portions which were not understood. The extent to which parties read the contract and seek outside advice is a matter of choice. See Frickel, at 721. All the law requires is that the parties are given the opportunity to understand the terms of a negotiated contract. There is no question but that the general manager had such an opportunity.
Lastly, the exclusionary clause was not "hidden in a maze of fine print". Schroeder, at 260. The contract was only six pages long, including the signature page, and the clause in question was located in a section clearly labeled "Default; Remedies", which was less than half a page in its entirety. The clause was not buried in fine print, it occupied 2 out of a total of only 11 lines in the provision, and was in the same size type as the remainder of the contract.
The perhaps misguided judgment on the part of Indian Wells does not prevent the exclusionary clause from being conscionable. Both parties, in an arm's-length transaction, negotiated and entered into a contract with no indicia of unfair surprise; the general manager of Indian Wells had a reasonable opportunity to understand the terms of the contract; and the challenged clause was not hidden in a maze of fine print. Under the totality of the circumstances surrounding the inception of this contract, Indian Wells has not satisfied its burden of proving the exclusionary clause is [226]*226unconscionable. As pointedly stated by Judge Learned Hand, " [I]n commercial transactions it does not in the end promote justice to seek strained interpretations in aid of those who do not protect themselves." See Baird Co. v. Gimbel Bros., Inc., 64 F.2d 344, 346 (2d Cir. 1933).
Since we find the exclusionary clause is conscionable, the question then becomes whether the clause is enforceable. Indian Wells asserts the limitation on consequential damages is invalid because the limited remedies provided for in the contract failed of their essential purposes.
The remedies in the contract, found in paragraphs 2.1, 5.2, and 9.3, provided for normal mortality of understocks, rejected trees, and trees that were never delivered. Paragraph 2.1 provided:
Grower agrees to provide at no cost to Owner up to forty thousand (40,000) certified EMLA 26 understocks for grafting and up to twenty five thousand (25,000) certified EMLA 26 under-stocks for budding as may be necessary to compensate for any mortality while growing during the nursery phase.
Paragraph 5.2 stated:
In the event of the Owner's rejection or adjustment and Grower's acceptance of such rejection or adjustment, Grower, at its option, shall replace the non-conforming Trees or reduce the purchase price.
Lastly, paragraph 9.3 provided:
The party declaring default shall have all rights provided under the Washington Uniform Commercial Code and other applicable laws of the State of Washington and the terms and provisions of this Agreement; provided that in no event shall Grower be subject to or liable for incidental or consequential damages. All rights and remedies of either party may be exercised consecutively, successively and cumulatively.
Because these limited remedies were not expressly agreed to in the contract to be exclusive remedies, resort to these remedies is optional under Washington's Uniform Commercial Code. See RCW 62A.2-719(1)(b); see also J. White & R. Summers, Uniform Commercial Code § 12-9, at 462-63 (2d ed. 1980). The Washington Comments state subsection (1)(b) is not intended to alter the rule expressed in Northwest Perfection Tire Co. v. Perfection Tire Corp., [227]*227125 Wash. 84, 215 P. 360 (1923). See Official Comment 1, RCWA 62A.2-719.
In Northwest Perfection Tire, Northwest agreed to furnish tires to Perfection Tire for sale and distribution. A large quantity of the tires were defective. The contract provided the following permissive remedy in case of defective tires: "The Company [Northwest] also guarantees all tires, tubes and casings to be in good condition and to make good all defects therein due to defective manufacture." Northwest, at 92. Relying upon this provision, Northwest argued that Perfection Tire could not seek damages because it was limited to the remedy of replacement. Northwest, at 91. The court rejected this argument.
We are unable to see in this language any plainly expressed intent to compel the Mt. Vernon company [Perfection] to resort exclusively to the remedy of replacement; but see therein only the intent to give it permission so to do. This seems to be a somewhat common provision in tire distributing contracts; made in view of the fact that even the best makes of tires will on rare occasions, have defective tires among shipments thereof of any considerable numbers; and when such occasionally defective tires appear, the dealer would quite probably prefer having replaced by perfect tires to his customers . . . But that does not mean that he is obliged to resort to that remedy unless the contract by unmistakable terms so provides.
(Italics ours.) Northwest, at 92.
The remedies provided for in this contract are similar to the remedy provided for in Northwest in that there is no expression of an intent of exclusivity. The limited remedies are permissive in nature; they are optional. Therefore, Indian Wells is not limited to the remedies provided in paragraphs 2.1, 5.2 and 9.3. Rather, Indian Wells has the option to seek other available remedies not validly excluded by the contract. The remedies available under the contract include the cost of cover for trees purchased as provided for in RCW 62A.2-711 and RCW 62A.2-712 and the recovery of market price damages for nondelivery of trees as provided in RCW 62A.2-711 and RCW 62A.2-713. Specifically, Indian Wells may recover its cover costs, the estimated value of trees short which could not be covered, and the [228]*228price of the Belgian rootstocks purchased by Mt. Arbor but not paid for less the contract cost avoided for trees that were not delivered. As to the trees which died after acceptance, the contract shifts the risk of this loss to the owner.
Once the limited remedies are determined to be nonexclusive and the available remedies identified, the inquiry is whether those remedies fail of their essential purposes. RCW 62A.2-719(2) provides as follows:
Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this Title.
There is disagreement over whether the failure of a limited remedy vitiates the validity of a conscionable exclusionary clause. Compare Lewis Refrigeration Co. v. Sawyer Fruit, Vegetable & Cold Storage Co., 709 F.2d 427 (6th Cir. 1983) (consequential damage limitation enforced even where a limited remedy fails of its essential purpose) with, e.g., Fiorito Bros., Inc. v. Fruehauf Corp., 747 F.2d 1309 (9th Cir. 1984) (failure of exclusive remedy clause rendered consequential damage clause unenforceable). This court has not yet addressed this issue. To determine whether it need be reached in this case, we must first decide whether the nonexclusive limited remedies fail of their essential purposes and whether the available remedies provide a fair quantum of remedy for Indian Wells. See Official Comment 1, RCWA 62A.2-719.
The Court of Appeals has held that an exclusive limited remedy fails of its essential purpose when there are unreasonable delays in providing the remedy or the party required to provide the remedy is unable to do so. See Lidstrand v. Silvercrest Indus., 28 Wn. App. 359, 365, 623 P.2d 710 (1981). An exclusive remedy has also been held to fail of its essential purpose when the party required to provide the remedy, by action or inaction, causes the remedy to fail or when defects in goods are not discoverable upon reasonable inspection. Marr Enters., Inc. v. Lewis Refrigeration Co., 556 F.2d 951, 955 (9th Cir. 1977) (and cases cited therein). See also Milgard Tempering, Inc. v. Selas Corp. [229]*229of Am., 761 F.2d 553, 556 (9th Cir. 1985); Fiorito Bros., Inc. v. Fruehauf Corp., supra. When there are alternate exclusive limited remedies, such as repair or refund, the exclusive remedies have been held not to fail of their essential purposes, although there was a failure to repair or replace the defective parts. Marr, at 955.
The limited remedies in this case, however, are nonexclusive. When a limited remedy is nonexclusive, it is harder to say the limited remedy failed of its essential purpose because resort to other remedies is available under the contract. Cf. J. White & R. Summers § 12-10 (cases arising under § 2-719(2) question whether exclusive remedy fails of essential purpose). The essential purpose of a nonexclusive limited remedy is to provide the full measure of damages afforded under the Uniform Commercial Code or, as an option, the limited remedy provided under the contract, exclusive of any valid limitation otherwise agreed to in the contract. The contract, itself, in section 9.3 provides that "[a]ll . . . remedies of either party may be exercised consecutively, successively and cumulatively." In this case, Indian Wells may (1) resort to the optional limited remedies of replacement of rejected nonconforming trees or a reduction in the purchase price coupled with the provision for 65,000 understocks to compensate for the mortality during the nursery phase, or (2) resort to the available remedies of cover or market price damages under RCW 62A.2-711(1)(a) or RCW 62A.2-711(1)(b) for those trees and the trees which were not delivered. The contract does provide "a fair quantum of remedy" to Indian Wells; the nonexclusive limited remedies, under the circumstances of this case, do not fail of their essential purposes. See Official Comment 1, RCWA 62A.2-719.
Because the available remedies do not fail of their essential purposes, the exclusionary clause in this case is enforceable. We need not reach the question as to whether the failure of an exclusive or nonexclusive limited remedy renders unenforceable a conscionable limitation of consequential damages.
[230]*230We next consider whether Indian Wells may recover incidental and consequential damages under a negligence theory. Generally, a breach of contract does not give rise to an action in tort. See 57A Am. Jur. 2d Negligence § 119 (1989). However, the negligent performance of a contract may create a tort claim if a duty exists independently of the performance of the contract. See 57A Am. Jur. 2d Negligence § 119, at 176. The trial court found Mt. Arbor negligent and negligent per se. Assuming, without deciding, the trial court properly based these findings on a tort duty arising independently from the contract, Indian Wells is still not entitled to recover incidental and consequential damages. The exclusionary clause is not void as against public policy and validly excludes the remedy of incidental and consequential damages regardless of whether the breach sounds in contract or tort.
The trial court held the exclusionary clause invalid on public policy grounds because bailees for mutual benefit are not permitted to disclaim or limit liability for negligence. The trial court, however, does not make any distinction between professional bailees and bailees for mutual benefit.
The general rule is that a party to a contract can limit liability for damages resulting from negligence. See Wagenblast v. Odessa Sch. Dist. 105-157-166J, 110 Wn.2d 845, 848, 758 P.2d 968 (1988). However, historically there are specific exceptions where limitations on liability are void as against public policy. See Wagenblast, at 849-51. One such exception prohibits professional bailees from limiting their liability for negligence. Wagenblast, at 849.
It is well settled in Washington that professional bailees may not limit their liability for negligence. See Wagenblast, at 849. However, the scope of this exception needs delineation. The distinction between bailees for mutual benefit and professional bailments has been blurred by two Court of Appeals cases. See S.S. Kresge Co. v. Port of Longview, 18 Wn. App. 805, 809, 573 P.2d 1336 (1977); King Logging Co. v. Scalzo, 16 Wn. App. 918, 922, 561 P.2d 206 (1977). These cases held that bailees for mutual benefit [231]*231may not disclaim liability for negligence. However, the precedent cited for this proposition neither supports that rule nor is it the rule in this state. In Althoff v. System Garages, Inc., 59 Wn.2d 860, 864, 371 P.2d 48 (1962), we stated that Washington had adopted the general rule in 43 A.L.R.2d 419 (1955) that professional bailees cannot disclaim liability for their own negligence. The cited annotation defines professional bailees as
persons who make it their principal business to act as bailees and who deal with the public on a uniform rather than on an individual basis, including primarily owners of parcel checkrooms, owners of parking places, garagemen, and warehouse-men.
Annot., Liability of Garageman for Theft or Unauthorized Use of Motor Vehicle, 43 A.L.R.2d 403, 419 n.2 (1955); Annot., Validity of Contractual Provision by One Other Than Carrier or Employer for Exemption From Liability, or Indemnification, for Consequences of Own Negligence, 175 A.L.R. 8, 111-12 (1948). Professional bailees are treated differently than other bailees because
the equality of bargaining power of the two parties to the [professional bailment] contract is largely theoretical in nature while actually the bailor, being in need of the services to be rendered by the bailee and usually being in no position to take his trade elsewhere, is compelled to agree to the terms stipulated by the bailee.
175 A.L.R. at 112. The rule in this state continues to be that professional bailees may not limit their liability for negligence; in every instance where a disclaimer of liability has been invalidated, a professional bailee was involved. See Althoff v. System Garages, Inc., supra at 864 (preprinted form used by a garageman); Ramsden v. Grimshaw, 23 Wn.2d 864, 866, 162 P.2d 901 (1945) (preprinted form used by a garageman); Sporsem v. First Nat'l Bank, 133 Wash. 199, 233 P. 641, 40 A.L.R. 854 (1925) (preprinted form for a safe deposit box); Patterson v. Wenatchee Canning Co., 59 Wash. 556, 110 P. 379 (1910) (public cold storage company); Carstens Packing Co. v. Southern Pac. Co., 58 Wash. 239, 108 P. 613 (1910) (common carrier); S.S. [232]*232Kresge Co. v. Port of Longview, supra (public warehouseman); King Logging Co. v. Scalzo, supra at 922 (common carrier).
While professional bailments are necessarily bailments for mutual benefit, not all bailments for mutual benefit are professional bailments. See White v. Burke, 31 Wn.2d 573, 583, 197 P.2d 1008 (1948). Bailments for mutual benefit include all nongratuitous bailments and arise when both parties to the contract receive a benefit flowing from the bailment. 8 C.J.S. Bailments § 16 (1988). The benefit to the bailee need not be in the form of cash. Rather, the benefit may derive from
a bailment [which] is a mere incident to the performance of services for which the bailee receives compensation or to the conduct of a business from which the bailee derives profit, or where the bailment is motivated by the bailor's desire to promote a sale . . ..
(Footnotes omitted.) 8 C.J.S. Bailments § 16, at 239; See also Burke, at 583. Thus, bailments arising from a service transaction are bailments for mutual benefit. These bailees are not professional bailees and may validly contract to limit their liability for negligence.
Mt. Arbor is a large commercial nursery which contracted with Indian Wells individually to grow apple trees from rootstocks. Mt. Arbor was to receive compensation for the service performed upon the bailed goods, the rootstocks. Mt. Arbor and Indian Wells had equal bargaining strength, and Indian Wells was free to choose another commercial nursery for the needed service. Mt. Arbor was not a professional bailee, rather the bailment was an incident to the performance of services for which Mt. Arbor was to receive compensation. There is no rule prohibiting Mt. Arbor, as a bailee for mutual benefit, from contractually limiting its liability for negligence.
The question whether this exclusionary clause violates public policy is properly analyzed under the Wagenblast standards recently set forth for situations arising outside [233]*233the historically settled exceptions. See Wagenblast, at 851-52.
[An] invalid exemption involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.
(Footnotes omitted.)
Wagenblast, at 851-52 (quoting Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 98-101, 383 P.2d 441, 32 Cal. Rptr. 33, 6 A.L.R.3d 693 (1963)).
Under this test, the exclusionary clause in question is not void as a matter of public policy. Mt. Arbor did not possess a "decisive advantage of bargaining strength". See Wagenblast, at 851. Nor did Mt. Arbor present Indian Wells with a standard adhesion contract. Although nurseries are an important business in this state, individual members of the public do not normally require such services as a matter of practical necessity. In addition, while this transaction may put the property of Indian Wells under the control of Mt. Arbor, this characteristic is involved in every bailment and, alone, is not sufficient to void a contracted for limitation on public policy grounds. See Wagenblast, at 852.
Lastly, Mt. Arbor contends the trial court abused its discretion in awarding $135,000 in attorney fees to Indian [234]*234Wells. The amount of attorney fees awarded is discretionary and will only be overturned for manifest abuse. Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 65, 738 P.2d 665 (1987). In determining the reasonableness of attorney fees, the following method should be employed by the trial court:
[T]he total hours necessarily expended in the litigation by each attorney, as documented by counsel, . . . should ... be multiplied by each lawyer's reasonable hourly rate of compensation considering inter alia the difficulty of the problem, each lawyer's skill and experience and the amount involved.
Singleton v. Frost, 108 Wn.2d 723, 733, 742 P.2d 1224 (1987); Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 599, 675 P.2d 193 (1983). Mt. Arbor contends the record indicates only the number of hours billed which is insufficient for the trial court to calculate a reasonable fee and moves this court to supplement the record pursuant to RAP 9.11. We agree the trial court should not determine a reasonable attorney fee merely by referencing the number of hours billed. See Sierracin, at 65. The trial court, however, did not base the reasonableness of the fee only upon the number of hours billed. To the contrary, it found:
Considering the complexity of this litigation, the issues of fact and law involved, the length of the trial, the expertise and standing of defense counsel in this field, the amount of the recovery, and all other factors essential to a determination of the reasonableness of attorney fees, the Court finds that $135,000 is a reasonable sum to be awarded to defendants as and for attorneys fees.
There is substantial evidence in the record to support this finding. We, therefore, deny Mt. Arbor's motion to supplement the record. However, because the trial court determined the reasonableness of the attorney fees, in part, by the amount of the recovery, we remand for a recalculation of attorney fees in light of the reduced recovery.
Indian Wells also seeks attorney fees on appeal. Mt. Arbor contends Indian Wells is precluded from recovering attorney fees on appeal because it failed to devote a section of its brief to a request for fees pursuant to RAP 18.1(b). However, because both parties have prevailed on [235]*235major issues, neither qualifies as the prevailing party under the contract. See Sardam v. Morford, 51 Wn. App. 908, 756 P.2d 174 (1988). We decline to award attorney fees on appeal.
We uphold the contract between American Nursery Products, Inc., and Indian Wells Orchards and affirm those damages assessed by the trial court under the terms of the contract. We find the exclusionary clause validly excludes incidental and consequential damages and reverse the award by the trial court of those damages. We remand to the trial court for further proceedings consistent with this opinion, including the recalculation of attorney fees.
Callow, C.J., and Utter, Andersen, and Durham, JJ., concur.