SaaS agreement

This SaaS (software-as-a-service) agreement template has been designed to govern the legal relationship between a provider of SaaS and its customers. The substantive clauses of this document are very similar to those in our SaaS terms and conditions. The key difference is one of form: this document is intended negotiated by and signed by the parties, whereas the SaaS terms and conditions may form part of a non-negotiable online sign-up procedure.

This template has been updated to reflect the requirements of the General Data Protection Regulation (GDPR) with respect to controller-processor contracts.

The template comes in three forms: basic, standard and premium.

Basic – This version contains the core provisions that you would expect to find in any SaaS agreement. It is relatively short and therefore easy to work with, but excludes most of the optional clauses in the standard and premium versions.

Standard – This version represents comprise between the sophistication and flexibility of the long-form premium agreement, and the ease-of-use of the short-form basic agreement. Provisions added to the basic agreement in this version include:

1. clauses covering set-up services;
2. dedicated service level schedules for service availability, maintenance and support services;
3. a customer assistance clause;
4. more detailed data protection provisions;
5. indemnities protecting one or both parties; and
6. enhanced termination clauses.

Premium – Sophisticated and highly flexible, this template can be adapted for use in relation to a very wide range of different types of SaaS offering. Additional clauses to those in the standard agreement include:

1. a formal user acceptance procedure;
2. a change control mechanism;
3. clauses covering expenses and timesheets;
4. a clause protecting the confidential information of the service provider;
5. provision for customisations to the software made at the behest of the customer;
6. dedicated party representatives and project management clauses;
7. more detailed notices provisions; and
8. a clause restricting the poaching of personnel.

SaaS agreement (basic) contents:

1. Definitions
2. Term
3. Hosted Services
4. Maintenance Services
5. Support Services
6. Customer Data
7. Mobile App
8. No assignment of Intellectual Property Rights
9. Charges
10. Payments
11. Provider's confidentiality obligations
12. Data protection
13. Warranties
14. Acknowledgements and warranty limitations
15. Limitations and exclusions of liability
16. Force Majeure Event
17. Termination
18. Effects of termination
19. Notices
20. Subcontracting
21. General
22. Interpretation

Schedule 1 - Hosted services particulars
Schedule 2 - Acceptable use policy

SaaS agreement (standard) contents:

1. Definitions
2. Term
3. Set Up Services
4. Hosted Services
5. Maintenance Services
6. Support Services
7. Customer obligations
8. Customer Data
9. Mobile App
10. No assignment of Intellectual Property Rights
11. Charges
12. Payments
13. Provider's confidentiality obligations
14. Data protection
15. Warranties
16. Acknowledgements and warranty limitations
17. Indemnities
18. Limitations and exclusions of liability
19. Force Majeure Event
20. Termination
21. Effects of termination
22. Notices
23. Subcontracting
24. Assignment
25. No waivers
26. Severability
27. Third party rights
28. Variation
29. Entire agreement
30. Law and jurisdiction
31. Interpretation

Schedule 1 - Hosted services particulars
Schedule 2 - Acceptable use policy
Schedule 3 - Availability SLA
Schedule 4 - Maintenance SLA
Schedule 5 - Support SLA

SaaS agreement (premium) contents:

1. Definitions
2. Term
3. Set Up Services
4. Acceptance procedure
5. Hosted Services
6. Customisations
7. Maintenance Services
8. Support Services
9. Customer obligations
10. Customer Systems
11. Customer Data
12. Mobile App
13. No assignment of Intellectual Property Rights
14. Representatives
15. Management
16. Change control
17. Charges
18. Expenses
19. Timesheets
20. Payments
21. Provider's confidentiality obligations
22. Customer's confidentiality obligations
23. Publicity
24. Data protection
25. Warranties
26. Acknowledgements and warranty limitations
27. Indemnities
28. Limitations and exclusions of liability
29. Force Majeure Event
30. Termination
31. Effects of termination
32. Non-solicitation of personnel
33. Notices
34. Subcontracting
35. Assignment
36. No waivers
37. Severability
38. Third party rights
39. Variation
40. Entire agreement
41. Law and jurisdiction
42. Interpretation

Schedule 1 - Hosted services particulars
Schedule 2 - Acceptable use policy
Schedule 3 - Availability SLA
Schedule 4 - Maintenance SLA
Schedule 5 - Support SLA

How does the SaaS agreement deal with the misuse of the application?

A relatively detailed acceptable use policy is included with all versions of the SaaS agreement. This includes a general prohibition the use of the service in a way which is illegal or fraudulent or harmful. In addition, there are specific prohibitions relating to particular types of problem (e.g. copyright infringement). Broader optional provisions cover misuse which does not itself break the law or infringe any person's legal rights, such as breaches of internet etiquette.

How do these SaaS agreements differ from a standard software licence agreement?

Software as a service agreements are quite different from traditional software licence agreements. Because the customer does not get access to the software code (source or object), then the licensing tends to be simpler, and there is no need for delivery obligations on the part of the vendor. In addition, because the vendor retains control of the software platform, then there is less need for provisions concerning the enforcement of the licence (such as audit provisions). On the other hand, because the vendor will be hosting the customer's data, the vendor will usually expect warranties that that data will not cause any legal difficulties for the vendor.

Why are there separate service level schedules?

Detailed service level agreements (SLAs) like those in the premium and standard documents may be required to support a SaaS arrangement. For example, where the services being provided are business-critical, the customer will want to ensure that the platform remains available (perhaps via uptime guarantees), that the vendor does not apply upgrades that impair the functionality needed by the customer, and that the vendor's back-up procedures are sufficiently robust that, should there be a significant incident, the platform will be quickly operational again.

Can the way in which the customer is permitted to use the platform be restricted so that, for example, the customer is allowed to use the platform for purpose X but not for purpose Y?

Yes. The grant of a right to use the service includes some suggested text " ... a licence to use the Hosted Services ... for the internal business purposes of the Customer".

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This SaaS agreement is included in each of these packs:

• SaaS pack (all versions of this document are included in this pack)
• Software developer pack (all versions of this document are included in the premium version of the pack and the basic and standard versions of the document are included in the standard version of the pack)