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SaaS agreement (standard)

This software-as-a-service agreement template builds upon the provisions of the basic version.

In addition to the provisions of the basic agreement, this document includes: (i) an optional background section, where the parties can set out general information about the circumstances leading to the execution of the agreement; (ii) indemnities, allowing for the considered allocation of specific risks between the parties; (iii) an agreed minimum period during which the contract may not be terminated by either party without cause, and generally more flexible termination provisions; (iv) clauses covering the provision of set-up services, which may cover installation, integration and configuration of the software by the service provider; (v) detailed service level agreements relating to the availability of the service, and the provision of support and maintenance services; (vi) general customer co-operation obligations; and (vii) more detailed boilerplate clauses.

Many of these additional provisions are optional, and can easily be removed from the document.

The General Data Protection Regulation (GDPR) requires, from 25 May 2018, that certain clauses be included in contracts between personal data controllers and personal data processors. This agreement incorporates relevant clauses, as well as a schedule where the parties can set out the processing information required under the GDPR (eg details of whose data is processed, what data is processed and the security measures used to protect that data).

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SaaS agreement (standard) contents

  1. Definitions: definitions.
  2. Term: commencement of term; end of term.
  3. Set Up Services: obligation to provide set up services; set up services timetable; delays in set up services consequent upon second party delays; hosted services set up and intellectual property rights.
  4. Hosted Services: creation of hosted services account; grant of licence to use hosted services; limitations on use of hosted services; prohibitions on the use of the hosted services; prevention of unauthorised access to hosted services; availability of hosted services and SLA; hosted services acceptable use policy; no damaging use of hosted services; no unlawful use of hosted services; no access to platform code; suspension of hosted services.
  5. Maintenance Services: maintenance services provision; standard of maintenance services; maintenance services in accordance with SLA; suspension of maintenance services.
  6. Support Services: support services provision; standard of support services; support services in accordance with SLA; suspension of support services.
  7. Customer
    obligations:
    general second party obligations; access to computer systems.
  8. Customer
    Data:
    licence of second party data (hosted services); warranties relating to second party data; back-up of second party data; restoration of second party data.
  9. Mobile App: mobile App governed by separate terms.
  10. No assignment of Intellectual Property Rights: no assignments of intellectual property rights.
  11. Charges: obligation to pay charges; time-base charges limitations; amounts inclusive or exclusive of VAT; variation of charges.
  12. Payments: issue of invoices; time for payment of charges following invoice; payment methods; interest on late payments; interest on late payments.
  13. Provider
    's confidentiality obligations:
    first party confidentiality undertaking; disclosure of confidential information by first party to certain persons; exceptions to first party's confidentiality obligations; disclosures of second party confidential information mandated by law etc; first party confidentiality obligations after termination.
  14. Data protection: warranty of
    Customer
    's right to disclose personal data (GDPR); categories of data subject whose personal data is processed by 
    the Provider
     (GDPR); types of personal data processed by
    Provider
    (GDPR); personal data processed for specified purposes; duration of personal data processing by
    Provider
    (GDPR); personal data processed by
    Provider
    on instructions (GDPR); personal data processed by
    Provider
    as required by law (GDPR); confidentiality obligations on
    Provider
     persons processing personal data (GDPR); security of personal data processed by 
    Provider
     (GDPR); appointment of sub-processor by
    Provider
    (GDPR);
    Provider
     to assist with exercise of data subject rights (GDPR);
    Provider
     to assist with compliance (GDPR);
    Provider
     to provide information (GDPR); deletion of personal data by 
    Provider
     (GDPR);
    Provider
     to allow audit (GDPR); changes to data protection law.
  15. Warranties: first party general warranties; hosted services general warranties; warranty of legality of hosted services; hosted services intellectual property infringement warranty; breach of hosted services infringement warranty; second party warranty of authority; exclusion of implied warranties and representations.
  16. Acknowledgements and warranty limitations: hosted services not error free; hosted services not entirely secure; hosted services compatibility limitation; no legal etc advice with hosted services.
  17. Indemnities: indemnity upon breach: any provision or specified provisions (with definition); conditions upon first party indemnity; indemnity upon breach: any provision or specified provisions (with definition); conditions upon second party indemnity; limitations of liability vs indemnities.
  18. Limitations and exclusions of liability: caveats to limits of liability; interpretation of limits of liability; no liability for force majeure; no liability for loss of profits; no liability for loss of revenue; no liability for loss of use; no liability for loss of opportunities; no liability for loss of data or software (subject to back-up obligations); no liability for consequential loss; per event liability cap upon services contract; aggregate liability cap upon services contract.
  19. Force Majeure Event: obligations suspended for force majeure; force majeure notification and information; mitigation of effects of force majeure.
  20. Termination: termination without cause (optionally assymetric); termination by either party without cause; termination upon breach; termination upon insolvency; termination upon non-payment.
  21. Effects of termination: surviving provisions upon termination; termination does not affect accrued rights; charges on termination of contract.
  22. Notices: methods and deemed receipt of contractual notices; first party contact details for contractual notices; substitute contact details for notices.
  23. Subcontracting: no subcontracting without consent; subcontracting permitted; first party responsible for subcontracted obligations; subcontracting of hosting.
  24. Assignment: assignment by first party; assignment by second party.
  25. No waivers: no unwritten waivers of breach; no continuing waiver.
  26. Severability: severability of whole; severability of parts.
  27. Third party rights: third party rights: benefit; third party rights: exercise of rights.
  28. Variation: variation only in accordance with section; variation by signed written agreement; variation on first party's notice.
  29. Entire agreement: entire agreement: documents; no mispresentation; section subject to caveats to limits of liablity.
  30. Law and jurisdiction: governing law; jurisdiction.
  31. Interpretation: statutory references; section headings not affecting interpretation; calendar month meaning; no ejusdem generis.

Schedule 1 (Hosted Services particulars)

  1. Set Up Services: specification of software set up services prompt.
  2. Specification of Hosted Services: specification of hosted services prompt.
  3. Financial provisions: financial provisions prompt.
  4. Contractual notices: prompt for second party contractual notice address details.

Schedule 2 (Acceptable Use Policy)

  1. Introduction: definitions for acceptable use policy; parties to acceptable use policy; agreement to policy by using services; express agreement to policy; services user minimum age under policy.
  2. General usage rules: no damaging use of services; no unlawful use of services; content must comply with provisions of part.
  3. Unlawful Content: no unlawful user content: general prohibition; no unlawful user content: specific prohibitions; previous complaints and user content.
  4. Graphic material: age suitability of user content; no violence in user content; no pornographic user content.
  5. Factual accuracy: content must be truthful; content must not risk defamation.
  6. Negligent advice: no professional advice in user content; no negligent advice in user content.
  7. Etiquette: content appropriate etc; no offensive content; no annoying content; no hostile communications; no deliberate offense; no content flooding; no duplicate content; categorisation of content; appropriate content titles; courtesy to service users.
  8. Marketing and spam: prohibition on marketing activities; no spam in user content; sending spam using email addresses; no promotion of marketing schemes.
  9. Gambling: no gambling-related activities.
  10. Monitoring: acknowledgement relating to monitoring.
  11. Data mining: no data mining.
  12. Hyperlinks: no hyperlinks to prohibited content.
  13. Harmful software: no harmful software; no risky software.

Schedule 3 (Availability SLA)

  1. Introduction to availability SLA: purpose of hosted services availability SLA; informal definition of uptime.
  2. Availability: uptime commitment; measurement of uptime; reporting of uptime measurements.
  3. Service credits: earning service credits; amount of service credits; application of service credits; service credits are sole remedy; service credits upon termination.
  4. Exceptions: list of exceptions to availablity commitment.

Schedule 4 (Maintenance SLA)

  1. Introduction: introduction to maintenance SLA.
  2. Scheduled Maintenance Services: notice of scheduled maintenance to hosted services; times for provision of maintenance services.
  3. Updates: notice of SaaS updates; application of platform updates.
  4. Upgrades: obligation to release upgrades; notice of SaaS upgrades; application of SaaS upgrades.

Schedule 5 (Support SLA)

  1. Introduction: introduction to support SLA.
  2. Helpdesk: helpdesk obligation; purpose of support services helpdesk; access to helpdesk; times of helpdesk availability; all requests for support to go through helpdesk.
  3. Response and resolution: hosted services support issue categorisation; allocation of support issue severity categories; support response times; contents of response to support request; support resolution times.
  4. Provision of Support Services: support services to be provided remotely.
  5. Limitations on Support Services: excessive use of hosted services support; misuse of hosted service and support services.

Schedule 6 (Data processing information)

  1. Categories of data subject: prompt for categories of data subject.
  2. Types of Personal Data: prompt for types of personal data.
  3. Purposes of processing: prompt for personal data processing purposes.
  4. Security measures for Personal Data: prompt for security measures for personal data.
  5. Sub-processors of Personal Data: prompt for identifying sub-processors of personal data.
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