The agreement caps each party's total liability for any claim at the greater of fees paid in the six months preceding the claim or USD $100. This cap applies to all legal theories including contract breach and tort.
This analysis describes what Windsurf'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 financial ceiling on recoverable damages that, for low-spend or free-tier customers, defaults to USD $100 regardless of the nature or magnitude of the underlying claim. The cap applies to both parties but is operationally most significant for customers seeking recovery from Cognition.
Interpretive note: Enforceability of the USD $100 minimum cap may vary by jurisdiction, particularly in the EU for consumer users and in states that restrict liability limitations covering gross negligence.
The updated terms indicate that Windsurf is now operating as the Cognition Platform under Cognition AI, Inc., replacing the prior Exafunction, Inc. structure. The revised terms state that prior terms continue to govern use for 30 days from the posting date (July 1, 2026), and that continued access after that period constitutes acceptance of the updated terms. Users who do not agree with the new terms are instructed to stop using or accessing the Services. The specific substantive changes to user rights, data collection, fees, or service functionality are not detailed in the provided change summary.
View change record →Under this clause, any financial recovery from Cognition for claims arising under the agreement is capped at either six months of fees paid or USD $100, whichever is greater. For free-tier users or customers with limited spend, the effective cap defaults to USD $100.
Cross-platform context
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Compare across platforms →"NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) AND STRICT LIABILITY, EXCEED THE GREATER OF (A) THE TOTAL AMOUNTS PAID TO COGNITION UNDER THIS AGREEMENT IN THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (B) ONE HUNDRED DOLLARS (US$100).Excerpt from Windsurf's Terms of Service
(1) REGULATORY LANDSCAPE: Liability limitation clauses in consumer-facing contracts are subject to scrutiny under the FTC Act's unfair or deceptive practices standards and under state consumer protection laws.
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This provision establishes a financial ceiling on recoverable damages that, for low-spend or free-tier customers, defaults to USD $100 regardless of the nature or magnitude of the underlying claim. The cap applies to both parties but is operationally most significant for customers seeking recovery from Cognition.
Under this clause, any financial recovery from Cognition for claims arising under the agreement is capped at either six months of fees paid or USD $100, whichever is greater. For free-tier users or customers with limited spend, the effective cap defaults to USD $100.
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