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Except for indemnification obligations, gross negligence, willful misconduct, and Contentsquare's fee collection rights, each party's total liability is capped at the fees paid by Customer in the 12 months preceding the liability-triggering event. Consequential, indirect, and punitive damages are excluded for both parties under Section 10.1.
This analysis describes what Heap'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 12-month fee-based liability cap and a broad exclusion of consequential and indirect damages. The carve-outs for gross negligence and willful misconduct are mutual, but the carve-out for unpaid fee collection applies exclusively to Contentsquare, allowing uncapped recovery of fees while Customer's breach of data obligations remains subject to the cap.
Under this clause, Customer's financial recourse against Contentsquare for most claims is limited to the fees paid in the preceding 12 months. The agreement excludes recovery for loss of profits, loss of data, business interruption, and similar indirect damages by either party, subject to the stated exceptions.
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"Except for: (a) the Parties' express obligations under Section 9 (Third-Party Claims); (b) damages resulting from death or bodily injury, or physical damage to tangible real or personal property, caused by either Party's gross negligence; (c) damages resulting from either Party's gross negligence or willful misconduct; and (d) Contentsquare's right to collect unpaid Fees due hereunder, to the extent permitted by law, the total, cumulative liability of each Party (and their respective Affiliates) arising out of or related to the Agreement will be limited to the amounts paid by Customer for the CS Service during the twelve (12) month period preceding the first event giving rise to liability.Excerpt from Heap's Terms of Service
1) REGULATORY LANDSCAPE: Limitation of liability clauses in B2B contracts are generally enforceable under the governing commercial law, subject to jurisdiction-specific constraints. Under English law and certain EU member state laws, liability limitations may be assessed for reasonableness. The GDPR may impose regulatory fines on data controllers independent of contractual liability caps; such regulatory obligations are not eliminated by this clause. 2) GOVERNANCE EXPOSURE: Medium. The 12-month fee-based cap means that in high-value, long-term deployments, the recoverable damages for a significant data incident or service failure may be substantially lower than the actual loss incurred. The consequential damages exclusion specifically names loss of profits, loss of data, and business interruption as excluded categories. 3) JURISDICTION FLAGS: In the UK, UCTA (Unfair Contract Terms Act 1977) and the Consumer Rights Act 2015 impose reasonableness tests on liability exclusion clauses, though UCTA applies primarily to B2B contracts. EU member states have varying standards for exclusion clause enforceability in commercial contracts. Customers in highly regulated sectors (financial services, healthcare) may face regulatory obligations that exceed the contractual cap. 4) CONTRACT AND VENDOR IMPLICATIONS: Procurement and legal teams should assess whether the 12-month fee cap is adequate relative to the potential business impact of a data processing failure or security incident, and consider whether the Order Form or a separate addendum should negotiate a higher cap for specific risk categories such as data breaches. The mutual application of the cap means Contentsquare's liability for service failures is also limited. 5) COMPLIANCE CONSIDERATIONS: Risk management teams should model the maximum contractual recovery against the estimated business impact of foreseeable failure scenarios, including data loss, prolonged service unavailability, and unauthorized disclosure of Visitor Data. Cyber insurance coverage should be assessed against the gap between the contractual cap and the estimated loss exposure.
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This provision establishes a mutual 12-month fee-based liability cap and a broad exclusion of consequential and indirect damages. The carve-outs for gross negligence and willful misconduct are mutual, but the carve-out for unpaid fee collection applies exclusively to Contentsquare, allowing uncapped recovery of fees while Customer's breach of data obligations remains subject to the cap.
Under this clause, Customer's financial recourse against Contentsquare for most claims is limited to the fees paid in the preceding 12 months. The agreement excludes recovery for loss of profits, loss of data, business interruption, and similar indirect damages by either party, subject to the stated exceptions.
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