Service Level Agreements (SLA) for SaaS start-ups in Germany – A guide to contract design

Service Level Agreements (SLAs) are a key instrument for SaaS start-ups to provide customers with clear service specifications and at the same time to steer their own liability into controllable channels. In this guide, we take a practical look at how SLAs can be structured professionally and legally compliant in Germany. We look at standard market availability commitments, the definition of maintenance windows, graduated support levels and response times, service credits and contractual penalties in the event of SLA breaches, as well as the admissibility of such clauses under German law on general terms and conditions. This overview is aimed at readers with an interest in law and business who want to develop a robust SLA for a SaaS start-up.

Availability commitments in the SaaS industry

A core component of every SLA is the available operating time of the cloud software (uptime). Very high availability commitments are common in the industry – absolute 100% are rarely guaranteed, but usually values in the range of 99% to 99.9% per period. Such figures seem small, but they correspond to considerable differences in the permissible downtime:

• 99 % availability – allows annual downtimes of up to ~87.6 hours (approx. 7 hours per month).
• 99.5 % availability – allows up to ~43.8 hours of downtime per year (approx. 3.6 hours per month).
• 99.9% availability – allows a maximum of ~8.8 hours of downtime per year, which is only about 44 minutes per month.

The higher the percentage value, the lower the tolerated downtime. “Five nines” (99.999%), for example, corresponds to only around 5 minutes of downtime per year, which is only realistic for highly available enterprise systems. For a start-up, three nines (99.9 %) is often sufficient as a target for business-critical services, while less critical applications can also be operated with ~99 %-99.5 % availability.

It is important to define values and reference periods precisely. A measurement per calendar month is common (this prevents failures from a bad month being “diluted” by good months). An SLA clause could, for example, read: “The SaaS service has an availability of 99.5% per month.” It should be made clear how availability is measured – for example, in relation to the total time minus defined maintenance times (see next section). It is also advisable to define what exactly counts as an outage (complete service outage vs. mere performance degradation). Some providers explicitly exclude “partial disruptions” or reduced performance from the downtime calculation. It is crucial that the availability indicator is transparent and comprehensible for both parties.

Maintenance window: planned vs. unplanned maintenance

Maintenance work is unavoidable, be it for updates, bug fixes or security patches. Maintenance windows should be defined in the SLA in order to clearly separate planned downtime from real disruptions. A distinction is usually made between planned maintenance and unplanned maintenance (emergency measures):

• Planned maintenance windows: This includes regular, pre-announced work. Fixed time windows are defined in which the service may only be available to a limited extent or not at all as planned, without this being considered an SLA violation. Many providers schedule these windows at low-traffic times, e.g. at night or at weekends. For example: “Maintenance work usually takes place on weekdays between 01:00 and 08:00 in the morning or at weekends”. The duration is also often limited, such as “max. 1 hour of scheduled maintenance per month”. The notice period is important: planned downtimes must be communicated in good time. Typically at least 24 hours in advance, preferably a few days. Bynder, for example, endeavors to announce maintenance 5 days in advance (but at least 24 hours in advance). This combination – limited frequency/duration and timely notification – allows customers to schedule maintenance windows without having to worry about unexpected outages.
• Unplanned (unscheduled) maintenance: This includes emergencies – such as security-critical updates or unforeseen technical problems that require immediate action. Here too, the SLA should regulate how such cases are handled. Best practice is for the provider to announce emergency interventions at least shortly beforehand if possible (e.g. by email or status page) and to ensure the least possible disruption. Some SLAs stipulate that unplanned maintenance outside the defined maintenance windows counts as downtime if the provider has not been informed at least 24 hours in advance, for example. This is to prevent the provider from simply carrying out spontaneous maintenance and declaring it as “planned” afterwards. Exceptions will still be allowed for absolute emergencies (e.g. acute security gaps) – however, such cases are rare and should be treated separately as force majeure or similar clauses.

The rules of thumb for maintenance clauses are as follows: Clearly define planned maintenance (times, duration) and exclude it from the availability calculation, announce this maintenance in good time and only allow unplanned interventions in an emergency. In this way, the provider retains the necessary flexibility for operation and updates without customers having to question the agreed uptime.

Support level and response times according to priority

In addition to technical availability, an SLA should also cover support: How quickly does the provider respond when the customer reports a problem? A professional support agreement is particularly important for B2B customers in order to resolve operational faults quickly. It is common practice to prioritize fault reports according to urgency and to define specific response times for each priority level:

• Priority 1 – Critical fault: This includes serious incidents, such as a total failure of the SaaS platform or a security-relevant incident that cannot be delayed. The response time (time-to-respond) should be very short, e.g. within 1 hour of receipt of the incident report (often even 30 minutes for high demands). Processing must at least begin within this time – for example, by calling back or taking initial measures.
• Priority 2 – High fault: Significant functional restrictions, but for which a workaround exists or the system is still running to a limited extent. Response times are somewhat longer here, e.g. within 4 hours.
• Priority 3 – Medium/low priority: Minor bugs, general inquiries or non-urgent problems. Longer response times are sufficient here, e.g. within 24 hours or by the next business day.

These examples show a possible scheme (often also categorized in P1/P2/P3 ). Important: The SLA should also define when the clock runs. Response times often only apply within defined support hours – such as Monday to Friday, 8:00-18:00. For example, “response time 1 hour” under business hours conditions means that a critical fault reported at 10 p.m. on Friday does not have to be processed until 9 a.m. on the next working day. If you want to offer 24/7 support, you must explicitly agree to this (often a cost issue for start-ups). Alternatively, you can offer premium support with extended hours for an additional charge.

In addition to the response time, a solution time (time-to-resolve) is sometimes agreed – e.g. for P1 faults, a solution or at least a workaround must be provided within 4 or 8 hours. However, this is tricky, as not every error can be resolved within a fixed time. It is often sufficient to define **response or recovery times as targets (service level objectives), without guarantees in the narrow sense. It is important that support processes are clearly described: How does the customer report faults (ticket system, hotline?), and how are they prioritized. A transparent process increases customer confidence and prevents false expectations.

Contractual penalties and credits for SLA violations

No SLA is complete without provisions on what happens if the provider fails to meet the promised service levels. This is where contractual sanctions come into play, ranging from contractual penalties to service credits. In the SaaS environment, service credits in particular have established themselves as a common solution – a kind of money-back guarantee in the form of a credit note that the customer can request if the SLA is not met.

Typical models for service credits: The provider and customer often agree on a certain percentage of the monthly fee that is credited, depending on how badly the SLA was missed. Example: If the guaranteed availability is not met, the provider grants a credit of y% of the monthly fee for every x hours of downtime. A concrete model from practice: “For every 30 minutes of downtime or part thereof, the customer receives a credit note in the amount of one day’s rent (1/30 of the monthly fee), up to a maximum of 50% of the monthly fee.”. This is a flat-rate compensation – the customer receives financial compensation (usually offset against future invoices) without having to provide complicated proof of each individual claim for damages. At the same time, the provider limits its liability upwards (e.g. to a maximum of half of one month’s remuneration). This model is intended to create an incentive to perform, but not to penalize the provider excessively.

Limits of service credits: It is important that such credits are granted automatically or at the simple request of the customer. There is usually a deadline within which the customer must report the SLA breach and claim the credit (e.g. “within 5 working days of the end of the month”). If the customer misses this deadline, the claim expires – this should be clearly stated in the contract. Cash payment of the credits is usually excluded; instead, they are offset against future payments. In addition, many SLAs stipulate that **Service Credits are the customer’s exclusive remedy, i.e. they are granted instead of other warranty or compensation claims. In this way, the provider tries to prevent the customer from asserting further claims (such as loss of profit, etc.) despite the credit. However, caution is advised: This limitation of liability must be permissible under German law (see next section).

Contractual penalty vs. liquidated damages: In legal terms, service credits are a form of liquidated damages or contractual penalty, depending on how they are structured. A contractual penalty (“contractual penalty”) primarily has a sanctioning character – it puts the provider under pressure to fulfill the performance obligation and makes it easier for the customer to receive compensation without proof of damage. In contrast, a genuine lump-sum compensation serves primarily to facilitate proof and is based on typical damages. In practice, the terms become blurred: “service credits” are often used to make the concept sound customer-friendly – ultimately, it is a contractually agreed compensation for reduced performance. Important: The amount and conditions of the credits should be clearly defined in the contract (preferably objectively measurable, e.g. percentages, times). And: No provider will agree to an unlimited penalty payment – this is why caps (ceilings) are common, such as 50% of the monthly fee in the example above. Special termination rights can also be agreed: In the event of serious SLA violations (e.g. availability falls far below the promised level for an extended period of time), the customer is given the right to terminate the contract without notice for good cause. This “exit clause” may seem dramatic, but it is an important means of exerting pressure on customers and increases the credibility of the SLA.

Admissibility under GTC law and limitation of liability in SLAs

For German SaaS start-ups, it is crucial that the SLA clauses comply with the law on general terms and conditions (Sections 305 et seq. BGB), as the SLAs are usually regarded as prefabricated contractual terms. A supposedly clever clause is of no use if it is ineffective in court. The following points should be observed:

• No “surprising” clauses: Contract terms that are so unusual that the customer could not reasonably have expected them are not part of the contract (Section 305c BGB). Therefore, important SLA and liability clauses should be formulated transparently and clearly, not hidden in the small print.
• Do not exclude liability for gross negligence: The exclusion or limitation of liability for intent and gross negligence is not permitted in GTCs. Damage resulting from injury to life, limb or health and liability for fraudulent intent may also not be excluded. Such exclusions of liability would be unreasonably disadvantageous (Section 307 BGB) and therefore invalid. An SLA clause must therefore never give the impression that the provider is not liable even in the case of intent or gross negligence – this would not be legally tenable.
• Use “guarantee” with caution: If a service is expressly promised as a guarantee in the SLA, this means that liability cannot be limited by other clauses in the event of non-compliance. Example: If the provider “guarantees that availability is 99.9%”, this could be interpreted as an independent guarantee obligation – in which case the statutory guarantee liability (Section 444 BGB analogously) applies and an exclusion of liability for this would be ineffective. Legal experts therefore recommend using terms such as “assure” or “agree” instead and explicitly regulating the legal consequences of non-compliance in the SLA (e.g. through service credits etc.) instead of using the word ” guarantee ” carelessly.
• Liability for slight negligence: In cases of simple (slight) negligence, liability can generally be limited in general terms and conditions – but not unlimited. Cardinal obligations, i.e. essential contractual obligations whose breach would jeopardize the achievement of the purpose of the contract, are an important limitation. If the provider breaches such cardinal obligationscase law requires that he must at least comply with the foreseeable damage typical for the contract must be replaced. In other words, a complete exclusion of liability for slight negligence in the case of essential services (such as the main service of SaaS provision) does not stand up to a GTC review. This means, for example, that a clause “In the event of service failure, any liability of the provider is excluded” would be invalid – the customer would be entitled to compensation for typical damages (e.g. rent reduction, see below) in an emergency, despite the GTC. However, it is permissible to limit the amount of liability (e.g. to a certain amount or to the sum of the fees paid), provided that The core obligations are not completely excluded from liability.
• No blanket exclusions for certain types of damage if these severely affect the customer: Providers often try to generally exclude liability for indirect damages, loss of profit, business interruption or loss of data in general terms and conditions. However, such blanket exclusions are legally risky. Under German law, they can be considered unreasonable, especially if they concern typically expected damages. For example, a complete exclusion for data loss is problematic if the SaaS provider owes data security by contract – a total exclusion of liability would put the customer at an unreasonable disadvantage. It is better to limit liability for such consequential damages to intent and gross negligence, but not to exclude liability for all negligence. In addition, customers should be contractually informed of backup obligations in order to ensure a fair distribution of risk (topic: data backup).
• Keep contractual penalties moderate: If a contractual penalty is agreed in the SLA for SLA violations (such as a fixed amount of money per hour of downtime), this must be reasonable. In consumer contracts, contractual penalties in general terms and conditions are generally not permitted under Section 309 No. 6 BGB. They are permitted in B2B contracts, but the amount is subject to limits: The BGH has ruled that contractual penalties agreed in GTCs that exceed 5% of the contract value are generally invalid. This means that a clause that awards the SaaS customer, for example, 10% of the monthly fee as a penalty per hour of downtime would exceed this threshold and could be enforced. Therefore: If penalties are to be imposed, then they should be low and better negotiated individually instead of being set too high in the GTC.
• Reduction in rent and statutory warranty: As SaaS is often legally classified as a rental agreement (provision of the software for a fee corresponds to transfer for use), the customer is generally entitled to a reduction in rent in the event of defects in accordance with Section 536 BGB. If the software is unavailable (downtime exceeding the contractually permissible level), this could be considered a rental defect, which could lead to a reduction in fees or even compensation. Many providers try to replace this statutory right to reduce fees with the SLA provision – e.g. by stipulating that service credits are the customer’s exclusive entitlement. However, such a clause must be drafted in such a way that it does not unreasonably disadvantage the customer (Section 307 BGB). In practical terms, this means that the compensation in the SLA (credits) should roughly correspond to the value of the statutory reduction. If the contractual credit would be much lower than what the customer could demand by law, the clause risks being invalid. In case of doubt, the customer should at least reserve the right to claim further damages if the actual damage is greater than the flat-rate credit – at least for cases for which the provider is responsible. Careful legal wording is recommended here.

To summarize: A legally compliant SLA design must maintain a balance between clearly defined commitments that are helpful for customers and effective limitations of liability for the provider. Surprises and one-sidedness must be avoided. In case of doubt, SLA clauses should be kept simple and fair so that they will stand up in an emergency and not be overturned in court.

Conclusion

A well-formulated SLA is worth its weight in gold for a SaaS startup: it creates trust with customers by bindingly promising availability, support and response times, while at the same time giving the provider a framework for risk control. Standard market availability commitments (such as 99% or 99.9% uptime) ensure that customers can trust the reliability of the service, while clearly defined maintenance windows give the operator enough room for updates and maintenance – without hidden downtimes. Graduated support levels with fast response times for critical problems demonstrate professionalism and customer proximity. And if the worst comes to the worst, service credits as contractual compensation ensure that customers are fairly compensated without having to take legal action. All of this contributes to professional customer communication and limits the provider’s liability in a predictable manner.

When drawing up an SLA, startups should always keep the legal framework in mind: What good is the best SLA clause if it doesn’t hold up in court? By adhering to the legal guidelines for general terms and conditions – no inadmissible exclusions of liability, appropriate regulations in the event of breaches of duty – the SLA becomes legally secure. If in doubt, it is worth seeking legal advice or taking the example of proven industry role models.

An SLA is ultimately more than just a contract: it is a performance promise to the customer. If it is done well, both sides benefit – the customer knows what they can rely on and the startup sets clear boundaries for its obligations. This makes the collaboration reliable, prevents disputes and allows the SaaS startup to focus on constantly improving its service without getting stranded in the liability jungle. A clear SLA design pays off in the long term – both in terms of customer satisfaction and legal certainty.

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.