[dragonwriter]

> The risk about finding if a provision is binding exists for a plaintiff too

Your risks affect you whether or not you account for them.

The other party’s risks of litigation against you only benefit you when the other side properly (or overly) accounts for them. Or, looked at a different way, they are mitigated by the risk of a risk-tolerant counterparty. (This would be somewhat less true in non-US jurisdictions where lawsuits generally have a loser pays rules, since there would be a greater chance of having some or all of the cost of a lawsuit against you that fails compensated.)