Get the weekly research letter
Companies change their terms quietly. We read every version and catch what actually changed. One email a week on the changes that matter and what they mean. No account.
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
See how other platforms handle Aggregate Liability Cap and similar clauses.
Compare across platforms →Monitoring
Windsurf has changed this document before.
Receive same-day alerts, structured change summaries, and monitoring for up to 25 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. In the EU, limitation of liability clauses in consumer contracts may be subject to the Unfair Contract Terms Directive. California courts have occasionally assessed whether liability caps in consumer agreements are enforceable depending on context and whether they cover gross negligence or willful misconduct. (2) GOVERNANCE EXPOSURE: Medium. The USD $100 floor is notably low for an enterprise software platform and may be commercially insufficient to cover meaningful losses arising from data loss, service disruption, or security incidents. The exclusion of consequential, indirect, and punitive damages in Section 10.1 compounds this limitation. However, liability caps are a standard feature of commercial software agreements, and enforceability depends on jurisdiction and whether the cap covers gross negligence or intentional misconduct. (3) JURISDICTION FLAGS: EU consumer protection law may limit enforceability of this cap for individual users qualifying as consumers. Some U.S. states do not permit liability limitations that cover gross negligence or willful misconduct. Enterprise customers in regulated industries (financial services, healthcare) should assess whether this cap conflicts with their own vendor contract standards. (4) CONTRACT AND VENDOR IMPLICATIONS: Procurement teams negotiating enterprise agreements should assess whether this cap is commercially acceptable relative to the volume and sensitivity of data processed. Standard enterprise software contracts often negotiate higher caps tied to annual contract value. The mutual application of the cap (applying equally to both parties) should be noted. (5) COMPLIANCE CONSIDERATIONS: Legal teams should document the financial exposure ceiling created by this cap in vendor risk assessments. For customers in regulated industries where vendor liability adequacy is assessed by regulators, this cap may require disclosure or mitigation.
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.
No. ConductAtlas is an independent monitoring service. We are not affiliated with, endorsed by, or sponsored by Windsurf.