PORTUGAL Law and Practice Contributed by: Luís Portela de Carvalho, Pedro Cortés and Cláudia de Azevedo Neves, Lektou
contracting, while preserving traditional formalities for certain categories of contracts, including certain family, succession, real estate (other than leases) and guarantee arrangements. The use of electronic contracting must also be vol - untary in the sense that parties are only required to contract electronically if they have agreed to do so. In consumer contracts, standard terms cannot force the consumer to contract only through electronic means. Practical Formation Requirements Most ordinary business-to-consumer e-commerce does not require a qualified electronic signature. In practice, the contract is formed through the consum - er’s express acceptance (eg, clicking an “order with obligation to pay” button), combined with the trader meeting its information and confirmation duties under Decree-Law No 7/2004 and Decree-Law No 24/2014. Common implementation steps include: • explaining the technical steps required to place an order; • allowing the consumer to identify and correct input errors before confirming the order; • using an order button or equivalent function that clearly indicates a payment obligation; and • sending confirmation of the order in a durable medium, usually by email. Certain regulated sectors may still require stronger signature or authentication requirements, but those are exceptions to the general position for everyday online business-to-consumer contracting. 2. Software Licensing and “As a Service” Provision 2.1 “On Premise” Licence Models Rather Than SaaS Solutions On-premise licence models continue to be used in Portugal where customers want greater operational control or have constraints that make cloud migration less attractive. This is most common in heavily regu - lated sectors, such as financial services, healthcare and the public sector, where customers may prefer
to keep sensitive data and key systems within infra - structure they manage directly. Other drivers include latency, performance and integration requirements. Some organisations still rely on legacy systems that are costly or risky to move to a SaaS environment. Existing investment in data centres and hardware may also make an on-premise model commercially appealing. Customers may also perceive on-premise arrangements as giving them more influence over cus - tomisation, upgrade cycles and change control. By contrast, SaaS products are often standardised and supplied on less negotiable terms. 2.2 Suspension Rights Suppliers usually frame suspension rights around situations where continued access would create pay - ment, security, legal or operational risk. Common trig - gers include: • non-payment, normally after a short cure period and sometimes following a staged approach from partial suspension to full suspension and termina - tion; • suspected misuse of the platform, security inci - dents, malware, credential compromise, denial-of- service attacks; • breach of acceptable use policies, illegal content and infringement of third-party rights; and • where required by law, by a regulator or by a com - petent authority. Customers typically negotiate limits on these rights. They often seek prior notice where practicable, with suspension limited to the affected users or functional - ity, prompt reinstatement once the issue is resolved and, in SaaS contracts, access to data for export dur - ing the suspension period where technically feasible. 2.3 Audit Rights Audit rights are negotiated differently depending on whether the arrangement is on-premises, hosted or SaaS. Customer Audit Rights Customers often ask for audit rights covering licence use, information security (sometimes referencing standards such as ISO 27001 or SOC reports) and
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