Super Cap Clauses in Contracts
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What is a super cap clause?
A Super Cap is higher-than-normal liability limit that applies to specific high-risk claims like data breaches, IP infringement, or confidentiality violations. It’s the middle ground between the general cap and full uncapped liability.
Also known as: increased cap, elevated cap, higher cap, enhanced cap, tiered cap, special cap, or specific liability cap
What super cap terms do most contracts have?
Based on data from more than 10,000 contracts:
5% of sales contracts in Common Paper include an increased cap, while 95% do not.
Of those including an increased cap:
82% chose a multiplier based increased cap instead of a fixed amount. Of those that used a multiplier:
- 82% used 5x
- 8% used 2X
Example super cap language
Sample language from the Common Paper standard Cloud Service Agreement:
If there are Increased Claims, each party’s total cumulative liability for all Increased Claims arising out of or relating to this Agreement will not be more than the Increased Cap Amount.
Risks to watch for in super cap clauses
| ⚠️ Risk Type | Description |
|---|---|
| 📈 Excessively High Super Cap | The cap for certain claims may be set far above reasonable exposure, creating outsized liability. |
| 🪤 Sneaky Super Cap Triggers | Clauses may quietly apply the super cap to more scenarios than intended, expanding risk. |
| 🌀 Confusion with General Cap | Poor drafting blurs the line between general and super caps, making enforcement unclear. |
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