CHILE Law and Practice Contributed by: Carolina Cabrera, LawTech
4. IT Services 4.1 Overlay of Requirements
The starting point is usually an aggregate cap linked to fees paid or payable over a defined period. For ordinary failures, delays, implementation issues, sup - port failures or non-critical downtime, suppliers seek to limit liability to direct damages. SaaS and man - aged services often use service credits for availability failures. Contracts commonly exclude indirect, consequential, punitive or special damages, loss of profit, revenue, business opportunity, goodwill, anticipated savings and business interruption. Customers resist broad exclusions where the service is critical, regulated or supports customer-facing operations, payments or core systems. Specific indemnities usually cover third-party IP claims, confidentiality breaches, unauthorised use of customer data, data protection violations, supplier- caused cybersecurity incidents, employment or sub - contractor claims, and damage caused by supplier personnel or subcontractors. Carve-outs are heavily negotiated. Customers seek uncapped or higher-capped liability for fraud, wilful misconduct, gross negligence, confidentiality, person - al data, IP, security breaches, supplier-caused regula - tory fines, audit/compliance breaches, data loss and failures affecting critical regulated services. 4.3 Warranties Warranties in Chilean IT services contracts are mainly contractual and should be tailored to the service, sec - tor, customer profile and data or systems involved. A standard package covers professional performance, specifications, personnel, legal compliance, IP, securi - ty, confidentiality, data protection and, where relevant, service levels, interoperability and continuity. A basic warranty is that services will be performed professionally and diligently, in accordance with the contract, statement of work, specifications, documen - tation, project plan and industry standards. Implemen - tation, support and managed services contracts also include milestones, deliverables, acceptance criteria, response times and SLAs.
Chile does not have a single statute comprehensively regulating IT services. The framework is layered: con - tract law applies first, then cross-cutting and sector- specific rules depending on the service, customer, data, infrastructure and regulated sector. General civil and commercial rules govern consent, obligations, liability, termination and damages. Where the service involves software licensing, development, implementation, support, maintenance or assignment of rights, IP rules are relevant for software, source code, documentation, databases, licences, permit - ted use and infringement risk. Data protection is a key overlay because IT provid - ers often process, host, access or support systems containing personal data. Contracts must address lawful basis, controller/processor roles, confidenti - ality, security, rights, subcontractors, international transfers, breach management, retention, deletion and auditability. Cybersecurity is another important layer, especially where IT services support essential services, critical infrastructure, managed IT, telecoms, financial servic - es, payments, healthcare, energy, water or transport. Customers increasingly expect security-by-design, privacy-by-design, incident response, vulnerability management, logging, continuity and reporting. Regulated financial entities face a stronger overlay on outsourcing, security, continuity, incidents, pro - vider controls, audit, subcontracting, data location, exit plans and regulatory access. Public-sector IT is affected by public procurement and digital govern - ment rules, while B2C services must also consider consumer protection and e-commerce requirements. 4.2 Liability Clauses A typical IT services liability clause in Chile combines a general liability cap, exclusions for certain damag - es, specific indemnities and carve-outs for higher-risk breaches. It should be tailored to the service, cus - tomer sector, data, system criticality and regulatory requirements.
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