The Advocate General ruled that the functionalities of software are simply “the service which the user expects” from the computer programme. For example, when using software to book an airline ticket the functionalities of the booking process will be the same regardless of which company’s software you use. Such services cannot be protected by copyright. However, what can be protected by copyright, is the means by which the functionalities are achieved as this reflects the author’s own intellectual creation. Protection will depend upon the degree of originality in the writing of the software.
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SaaS Agreements – Data Protection – Data Stored in the USA
SaaS suppliers who use data centres physically located in the USA to store or process data should be aware of a recent US Court of Appeals ruling that the Electronic Communications Privacy Act (ECPA) – an American law – protects the data of non-USA citizens when their data is stored on servers in the USA.
Continue readingSaaS Agreements – Reseller/Distribution – Terms to Include
When using a local partner to resell your SaaS software to customers outside of the countries in which you are based, you will need to have a distributor/reseller agreement in place between yourself and each distributor/reseller. This will in part mirror your standard SaaS terms and conditions but will also need to include additional clauses to cover the issues set out below. Applicable Law and Language Usually your reseller will be located in another country. The reseller will be selling your SaaS software to its customers using its own local
Continue readingSaaS Agreements – Need for an Escrow Agreement
Having an escrow agreement in place protects all parties involved in the development, supply and use of business critical SaaS applications. It provides customers with peace of mind for securing long-term availability of a critical SaaS application by enabling customers to update software and fix any bugs even if the supplier is no longer able to support them.
Continue readingSaaS Agreements – Reseller/Distribution – Need for a Reseller Agreement
Most SaaS suppliers use distributors to enable them to sell their software and services to customers who would not otherwise purchase the SaaS software, due to the Supplier’s:
– lack of physical presence in the customer’s country
– lack of sales channels of contacts in the reseller’s country
SaaS Agreements – Data Protection – Google Analytics in Germany
If your website uses Google analytics and you provide SaaS services to customers based in Germany you are now required to provide specific information to users in order to comply with recent changes to German data protection law. Google Analytics and German Data Protection Google analytics collects statistics about website users by „tracking” an individual’s use of a website. This information is then made available to website operators free of charge. Following an agreement between Google and the German data protection authorities it is now the responsibility of the operators
Continue readingSaaS Agreements – SLA – Data Backup
When providing SaaS services you must specify in your SaaS agreement who is responsible for the backup/loss of customer data. The extent of your backup duties should be included in the service level agreement (SLA) and these will be dependent on a number of factors set out below.
Continue readingSaaS Agreements – SLA – Security Issues
As a SaaS supplier you will have noticed the increasing concerns about security voiced by SaaS customers. Your SaaS agreement should provide comfort to your customer by including security provisions in the service level agreement (SLA). The specifc matters covered will depend on a number of factors set out below.
Continue readingSaaS Agreements – Entire Agreement Clauses
In the recent Court of Appeal decision Axa Sun Life Services Plc v Campbell Martin Ltd an entire agreement clause did not exclude liability for pre-contractual misrepresentations although the clause was reasonable under the Unfair Contract Terms Act (UCTA).
Continue readingSaaS Agreements – E-Discovery
As a SaaS supplier you may be ordered by a court as part of a litigation process to identify and disclose physical documents and electronically stored information (e-discovery). This creates problems for SaaS suppliers on a number of levels.
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