DISCLAIMERS AND LIMITATIONS OF LIABILITY IN DIGITAL CONTRACTS: THE CASE OF CLOUD COMPUTING AND SOFTWARE AS A SERVICE (SaaS) CONTRACTS

Abstract

This article analyses the legal limits of clauses excluding or limiting civil liability in cloud computing and Software as a Service (SaaS) contracts. The study focuses on the tension between the private autonomy of technology providers — who rely on standardised form contracts to mitigate their duty to compensate for data loss or service disruptions — and the mandatory rules that protect contractual fairness. To determine the validity of these clauses, the research analyses Article 809 of the Portuguese Civil Code and the regime governing general contractual terms, cross-referencing them with comparative law. Finally, it explores the impact of the recent European Data Act on the regulation of unfair business-to-business (B2B) terms and their relationship with the GDPR.