This article applies only to version 3.0 of the Cloud Service Agreement. The Supercap was called the Increased Cap Amount in earlier versions. For versions 1.x and 2.x, see Increased and Unlimited Claims. Learn more about agreement versions.
Supercap and Increased Claims are optional variables that appear in the Cloud Service Agreement Cover Page, in the Key Terms section. Together they set a higher limit of liability for specific kinds of claims. Every other claim stays capped at the General Cap Amount.
The Supercap is the amount. Increased Claims is the list of claims that amount applies to.
Supercap
For the claims you list under Increased Claims, what should the maximum amount of damages be? The Supercap row begins with this sentence:
Notwithstanding Section 8.1, each party's total cumulative liability for all Increased Claims arising out of or relating to this Agreement will not be more than:
You then choose one of three ways to set the amount:
A multiple of the fees paid or payable by Customer to Provider in the 12 month period immediately before the claim
A fixed dollar amount
The greater of a fixed dollar amount or a multiple of those fees
Default: 5 times the fees paid or payable by Customer to Provider in the 12 month period immediately before the claim
Increased Claims
Which breaches should be capped at the Supercap rather than the General Cap Amount? The row begins with "The Supercap applies to the following claims:" followed by the options you select:
Breach of Section 3 (Privacy & Security)
Breach of Section 10 (Confidentiality) (however, excluding any data or security breaches)
An Indemnifying Party's indemnification obligation
Other, where you describe a claim in your own words
Those three claims, plus Other, are the only Increased Claims options.
Default: All three claims selected
Claims that should have no cap at all go under Uncapped Claims.
Using the two together
Include both rows or neither. The Supercap sentence refers to Increased Claims, and the Increased Claims row refers to the Supercap, but the app doesn't stop you from including only one. If you include the Supercap without Increased Claims, the agreement sets a higher cap without saying which claims it covers.
When a recipient proposes changes, they can change the Supercap amount and which claims are selected. They can't rewrite the opening sentence on either row.
What changed from version 2.x
Increased Cap Amount was renamed Supercap. Increased Claims kept its name.
The operative language moved from the Standard Terms onto the Cover Page, so the Supercap and Increased Claims rows each open with a fixed sentence.
An Indemnifying Party's indemnification obligation is now an Increased Claim by default. In version 2.x it was an Unlimited Claim by default.
The two gross negligence and willful misconduct options were removed from Increased Claims. Section 8.4 of the version 3.0 Standard Terms never limits liability for gross negligence, willful misconduct, or fraud, so those options were redundant.