SaaS Agreements – Terms and Conditions – Data Processing Agreement

Under the Data Protection Act 1998 (DPA) UK SaaS suppliers currently have limited obligations to SaaS customers when processing personal data as part of their SaaS services. However, from the 25th of May 2018 the General Data Protection Regulation (GDPR) will impose numerous new data processing obligations on SaaS suppliers. In particular, the obligation for SaaS suppliers to enter into a written data processing agreement with SaaS customers and sub-contractors.

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SaaS Agreements – Terms and Conditions – Limitation Clauses

SaaS suppliers should always include limitation clauses in their SaaS terms and conditions to attempt to limit or exclude liability for certain types of losses and to cap their financial liability for breaches of contract. However, in order for limitation clauses to be valid, SaaS suppliers must ensure that the wording of the limitation clause is clear and unambiguous, otherwise the whole clause could be ruled void by a court and the SaaS supplier’s liability will then be unlimited.

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SaaS Agreements – Heads of Terms – Entire Agreement Clause

Heads of terms are often by SaaS suppliers where the final terms of the SaaS agreement have not yet been fully agreed with the SaaS customer. By using heads of terms the SaaS supplier can start to provide the SaaS services to the SaaS customer. However sometimes the parties are unaware of, or overlook, the legal implications and dangers of using heads of terms prior to finalising the terms of the SaaS agreement.

A recent court case in the UK highlights these problems.

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SaaS Agreements – Terms and Conditions – Safe Harbor Adequacy

European data protection authorities have recently raised serious reservations about the effectiveness of the safe harbour scheme and its ability to adequately protect SaaS customer data to the same standard as European data protection laws. If you are a SaaS supplier and are considering/or are already using a company located in the US to provide part of your SaaS services i.e. for hosting, you should be aware of the existence and limitations of the safe harbor scheme.

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SaaS Agreements – Terms and Conditions – The Bribery Act 2010

If your are a SaaS supplier or SaaS customer you should be aware of the provisions of the Bribery Act when negotiating the terms of a SaaS agreement. The Bribery Act 2010 (“Act”) has been in force since July 2011. It aims to distinguish between hospitality (which is permitted) and bribes which are illegal. A breach of the Act can result in an unlimited fine and a maximum prison sentence of 10 years.

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