The agreement caps each party's aggregate liability at the total fees paid by the subscriber in the 12 months prior to the first incident giving rise to liability, applicable in contract and tort regardless of legal theory. Payment obligations and indemnification obligations are expressly excluded from this cap.
This analysis describes what Fastly's agreement states, permits, or reserves. It does not constitute a legal determination about enforceability. Regulatory applicability and practical outcomes may vary by jurisdiction, enforcement context, and individual circumstances. Read our methodology
This provision establishes a mutual liability cap tied to 12 months of subscriber fees, meaning Fastly's maximum financial exposure to a subscriber is limited to amounts the subscriber has paid. Because payment and indemnification obligations are excluded from the cap, subscriber financial exposure under indemnification provisions may exceed the cap amount.
Under this clause, each party's maximum liability for claims under the agreement is capped at 12 months of subscriber fees paid. However, the subscriber's indemnification obligations and payment obligations are not subject to this cap, meaning subscriber financial exposure in indemnification scenarios is not limited by this provision.
Cross-platform context
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Compare across platforms →"A PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE 12 MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT SUBSCRIBER'S PAYMENT OBLIGATIONS UNDER SECTION 7 (FEES AND PAYMENT) OR EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 16 (INDEMNIFICATION).Excerpt from Fastly's Terms of Service
(1) REGULATORY LANDSCAPE: Mutual liability caps are standard in commercial SaaS and CDN agreements.
Enforcement risk, jurisdiction flags, contract triggers, and due diligence action items.
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This provision establishes a mutual liability cap tied to 12 months of subscriber fees, meaning Fastly's maximum financial exposure to a subscriber is limited to amounts the subscriber has paid. Because payment and indemnification obligations are excluded from the cap, subscriber financial exposure under indemnification provisions may exceed the cap amount.
Under this clause, each party's maximum liability for claims under the agreement is capped at 12 months of subscriber fees paid. However, the subscriber's indemnification obligations and payment obligations are not subject to this cap, meaning subscriber financial exposure in indemnification scenarios is not limited by this provision.
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