In the case of B to B Next is the case of B to B.
In this context, there are many judicial rulings concluding that a provision stipulating that there is no liability in the case of slight negligence. So, this type of disclaimer provision basically poses no problem.
Next is the issue of whether a provision stipulating limited liability in the case of intentional act or gross negligence, for example, by limiting [damages] to an amount equal to one month’s use fee, is valid.

This issue is gray since the judicial rulings are split. (For example, a ruling of the Tokyo District Court on January 23, 2014 found that liability in the case of gross negligence is not limited.)
However, since this is an issue that has not been finally settled, there are quite a few services with a limited liability provision in place.
The disclaimer provision in the FirstServer case discussed above stipulating that “the maximum amount of [such] compensation liability shall be the total amount paid by the contracting party to the Company as consideration for the Services” falls into the pattern mentioned in the paragraph above.

In the case of B to C The Consumer Contract Act applies in the case of B to C, clearly providing for the following two points.

1. Clauses completely exempting a company from liability to compensate for damages are void (paraphrased from the Consumer Contract Act, Article 8, Paragraph 1, Items 1 and 3); and
2. Clauses partially exempting a company from liability to compensate for damages arising from the company’s intentional act or gross negligence are void (paraphrased from the Consumer Contract Act, Article 8, Paragraph 1, Items 2 and 4).

In other words, it looks like this.

1. Clauses completely exempting a company from liability to compensate for damages are void (paraphrased from the Consumer Contract Act, Article 8, Paragraph 1, Items 1 and 3).
   This means that clauses completely exempting a company from the liability in the case of even slight negligence are void.
2. Clauses partially exempting a company from liability to compensate for damages arising from the company’s intentional act or gross negligence are void (paraphrased from the Consumer Contract Act, Article 8, Paragraph 1, Items 2 and 4).
   This literally means that disclaimer provisions are void in the case where there is an intentional act or gross negligence, and legally, there is liability in accordance with the law.

Therefore, this necessarily means that the scope of a partial limitation of liability is limited only to the case of slight negligence.

Understanding how specifically the disclaimer provision should be included

Based on the discussion above, let’s looks at some concrete examples that were discussed earlier, the exemption provisions in the FirstServer case.
They are repeated below for your convenience.

Article 35 (Disclaimer)
(Excerpt)
6.　The Company shall have no liability of any kind for indirect damages, including consequential damages, incidental damages, and lost profits for damages sustained by a contracting party or a third party in relation to the Services, regardless of whether [such damages] were foreseen or foreseeable.
(Excerpt)
8.　Paragraphs 2 through 6 of this Article shall not apply in cases where there are [damages attributable to] an intentional act or gross negligence of the Company or when a contracting party falls under the “consumer” category in the Consumer Contract Act.

Article 36 (Limitation on Amount of Compensation for Damages)
When the Company is liable for compensation for damages relating to the use of the Services, the maximum amount of such compensation liability shall be the total amount paid by the contracting party to the Company as consideration for the Services.

First, as a general rule, under Article 35, Paragraph 6, companies have no liability. However, as previously mentioned, since a complete release from liability “in the case of an intentional act or gross negligence” or “in the case where the Consumer Contract Act” applies is not recognized, there will be liability in these cases under Article 35, Paragraph 8.
Thus, Article 36 stipulates that even where there is liability, such liability is limited.

When this provision is applied to B to B (business to business) transactions, it looks like the diagram below.

Since, as previously mentioned, judicial decisions are divided with respect to limited liability in the case of intentional acts or gross negligence (the orange part), this means that the provision in the FirstServer case is favorable to companies.