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The agreement caps each party's total aggregate liability at the amount paid or payable by the Customer in the twelve months preceding the incident, and excludes lost profits, indirect, special, incidental, consequential, and punitive damages for both parties.
This analysis describes what HubSpot'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 the maximum financial recovery available to either party in the event of a breach or claim, capping HubSpot's liability at twelve months of fees paid and excluding categories of harm such as lost profits and consequential damages that may substantially exceed direct fees in a data breach or service failure scenario.
Interpretive note: Enforceability of the consequential damages exclusion and liability cap may vary by jurisdiction, particularly in the EU where mandatory consumer or data protection laws may override contractual limitations in specific circumstances.
The updated terms now explicitly state that AI is embedded throughout HubSpot's platform and is foundational to how subscription services operate. The agreement permits HubSpot to use customer data to train AI models, subject to contractual obligations. You can opt out of having your data used to train AI models by updating your settings in your HubSpot account.
View change record →Under this clause, the Customer's ability to recover damages from HubSpot in the event of a service failure, data breach, or breach of contract is limited to the fees paid in the prior twelve months. The agreement also states that neither party may recover lost profits or consequential damages, which may limit the practical recovery available to customers who suffer business losses resulting from a HubSpot service disruption or data incident.
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"IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING SHALL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.Excerpt from HubSpot's Terms of Service
1) REGULATORY LANDSCAPE: Limitation of liability clauses are standard in commercial software agreements and are generally enforceable under both US (Massachusetts) and Irish law, subject to certain exceptions. Under Irish and EU law, liability limitations may not apply to claims arising from gross negligence, fraud, or willful misconduct. GDPR Article 82 preserves data subjects' right to compensation for data protection violations regardless of contractual liability limitations, and EU data protection authorities may impose fines on controllers independently of contractual caps. The FTC's authority over deceptive practices is not typically constrained by private contractual liability limitations. 2) GOVERNANCE EXPOSURE: Medium. The twelve-month fee cap may be substantially lower than the actual business impact of a data breach or prolonged service outage, particularly for customers managing large CRM databases or mission-critical marketing workflows. Legal teams should assess whether the cap is adequate relative to the organization's reliance on the platform and the volume of personal data processed. 3) JURISDICTION FLAGS: EU customers should note that GDPR Article 82 liability for data subjects exists independently of this contractual cap, meaning Customer organizations may face regulatory and civil claims from data subjects that exceed the amounts recoverable from HubSpot under these terms. Some jurisdictions may not enforce exclusions of liability for gross negligence, fraud, or death and personal injury. 4) CONTRACT AND VENDOR IMPLICATIONS: Procurement teams should assess whether the twelve-month fee cap is commercially appropriate given the scale of data processing and operational dependency on the platform. For high-value or high-risk deployments, negotiating a higher liability cap or specific carve-outs for data breach scenarios may be warranted. The exclusion of consequential damages is standard in enterprise SaaS agreements but should be flagged for organizations where downstream business losses from a service failure could materially exceed direct fees. 5) COMPLIANCE CONSIDERATIONS: Organizations should ensure that their cyber insurance and vendor risk management frameworks account for the liability cap when assessing potential exposure from a HubSpot data incident. The interaction between this cap and GDPR Article 82 data subject compensation rights warrants review by privacy counsel, particularly for EU-based Customer organizations.
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This provision establishes the maximum financial recovery available to either party in the event of a breach or claim, capping HubSpot's liability at twelve months of fees paid and excluding categories of harm such as lost profits and consequential damages that may substantially exceed direct fees in a data breach or service failure scenario.
Under this clause, the Customer's ability to recover damages from HubSpot in the event of a service failure, data breach, or breach of contract is limited to the fees paid in the prior twelve months. The agreement also states that neither party may recover lost profits or consequential damages, which may limit the practical recovery available to customers who suffer …
ConductAtlas has identified this type of provision across 292 platforms. See the full comparison.
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