Drafting contracts for SaaS companies: Tips from an IT law expert

Software as a Service (SaaS) has established itself as the dominant business model in the IT industry. For SaaS companies, careful and legally compliant contract drafting is crucial in order to minimize risks and create a solid basis for business relationships. This article highlights the most important aspects of contract drafting for SaaS companies and provides practical tips from the perspective of an IT law expert.

Legal classification of SaaS contracts

The legal classification of SaaS contracts is not always clear and can vary depending on the structure. As a rule, SaaS contracts are classified as rental contracts within the meaning of Sections 535 et seq. BGB, as the customer is provided with the software for use without acquiring ownership of it. However, elements of the service contract (Sections 611 et seq. BGB) or the contract for work and services (Sections 631 et seq. BGB) may also be present, particularly if additional services such as implementation or customizing are agreed.

This legal classification has important consequences for the drafting of contracts, particularly with regard to warranty rights and termination options. SaaS providers should therefore carefully examine the contractual structure and, if necessary, make clarifying provisions.

Core elements of a SaaS contract

A well-structured SaaS contract should contain the following core elements:

1. service description: A precise definition of the scope of services is essential. This includes the functionalities of the software, agreed service levels (SLAs), support services and any restrictions on use.

2. rights of use: The granting of rights of use should be clearly regulated, including any restrictions on the number of users, purpose of use or geographical limits.

3. remuneration: The remuneration structure, including any scales or additional costs, should be presented transparently.

4. term and termination: Clear regulations on the contract term, extension options and notice periods are important in order to create planning security for both parties.

5. data protection and data security: In view of the GDPR, detailed regulations on the handling of personal data are essential. This also includes agreements on order processing in accordance with Art. 28 GDPR.

6 Warranty and liability: The regulations on warranty and liability should be adapted to the SaaS model and provide for a fair distribution of risk between provider and customer.

7. reservation of the right to make changes: SaaS providers should reserve the right to further develop and update the software without affecting the core functionalities.

Special challenges and solutions

There are some specific challenges when drafting contracts for SaaS companies:

1. service level agreements (SLAs): The definition and measurement of availability and performance are critical points. It is advisable to define realistic and measurable SLAs and establish clear consequences for non-compliance.

2. data security and compliance: In view of increasing regulatory requirements, SaaS contracts must contain detailed provisions on data security, backup strategies and compliance measures.

3. exit strategies: The contract should include clear provisions for the end of the contract, particularly with regard to the return or deletion of customer data and support for migration to other systems.

4. international aspects: For globally operating SaaS companies, regulations on applicable law and jurisdiction as well as the consideration of international data transfer regulations are important.

5. subcontractors: If the SaaS provider uses subcontractors, clear contractual provisions should be made, particularly with regard to data protection and liability.

Practical tips for drafting contracts

Based on our experience as IT legal experts, we have the following practical tips for SaaS companies:

1. modularization: A modular contract structure with a framework agreement and specific service certificates enables flexibility and facilitates adjustments.

2. clear language: contractual clauses should be formulated clearly and comprehensibly in order to minimize room for interpretation and increase customer acceptance.

3. regular review: SaaS contracts should be regularly checked for up-to-dateness and compliance and adjusted if necessary.

4. transparency in the event of changes: Changes to the contractual terms or the software should be communicated transparently in order to create trust and minimize legal risks.

5. escalation mechanisms: The implementation of clear escalation mechanisms for disputes can help to resolve conflicts at an early stage and avoid lengthy legal disputes.

6. documentation: Careful documentation of all contract amendments and communication with the customer is essential for legal certainty.

Drafting contracts for SaaS companies requires careful consideration of legal and commercial aspects. A well-structured and balanced contract not only forms the legal basis for the business relationship, but can also serve as a marketing tool by demonstrating transparency and fairness.

Given the complexity and constant legal developments in the IT sector, it is advisable for SaaS companies to consult legal expertise when drafting contracts. A specialized IT lawyer can help to develop tailor-made contractual solutions that meet the interests of the company as well as the requirements of the market and case law.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.