Software Assistance and Maintenance Contracts

Abstract:

The paper analyzes the legal issues related to software assistance and maintenance agreements. Contracts generally provide for highly diverse performances and are aimed at providing a global service. Since the assistance and maintenance agreement generally entails a long-term relationship, the regulations for long-term supply contract’s apply. Nevertheless, in specific circumstances, even the rules for service contracts may be applied. In Italy, like in other EU jurisdictions, the applicable regulatory framework depends on the content of the contract. The provider company naturally tends to restrict its liability in proportion to effectively commissioned activity.

Exclusion clauses including intentional damage or gross negligence are void, while par. 2 of Article 1229 of the Italian Civil Code permits limitation of liability in cases of minor negligence. The impossibility of changing contractual terms disadvantages the weaker contracting party and the procedure imposed by par 2 of Art. 1341 c.c. has proved inadequate to protect the customer. Art. 9, of Law n 192 of 18 June 1998 (“Disciplina della subfornitura nelle attivita produttive”), which is now considered to be general principle allows exclusion clauses providing for minor negligence to be deemed void, if they oversimplify the debtor position, by defining the requirements of minor negligence. In addition, clauses regarding exclusion or limitation of liability towards third parties, beyond the limit set by Art. 1229, require an assessment based on the nature of the interest which is concretely protected.

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