SaaS Agreement Checklist: Service Levels; Support and Maintenance; Severity Levels

By Drew Stevens - November 2, 2019 - Technology & IP

As a SaaS lawyer in Columbus, Ohio, there are a number of key provisions that I typically discuss with clients when reviewing their existing Software as a Services contracts or creating new SaaS agreement templates.

Three key areas of a well-defined Software as a Service agreement are service levels, support and maintenance, and service level severity levels. These are areas that young SaaS companies often don’t fully consider in detail, unless they have worked with a Columbus SaaS contract lawyer before. In taking the time to fully consider and address these issues early on, such proactiveness can save both the service provider and the customer several headaches if issues arise with the SaaS. SaaS Agreement Checklist: Service Levels; Support and Maintenance; Severity Levels

SaaS Agreement Service Levels

SaaS agreement service levels provisions can be as complex or as simple as the parties prefer. One of the primary goals of incorporating service level provisions is to define a tangible benchmark for the expected level of performance that the service provider and customer agree on, and what are the procedures are if a service level is not met.

If you’re the customer, there are a number of areas you may want to contemplate in negotiating the SaaS agreement. For one, you may want to insert a clause that provides for service level failure. If the specified uptime is not met, you may want to pursue various remedial options, including a performance credit, a notification requirement from the service provider, and perhaps a requirement that the service provider will use commercially reasonably efforts or best efforts to minimize the service outage.

Another concept to consider for customers is service level reports. Some SaaS agreement will feature a provision that requires service providers to issue a statement on a regular interval that shows various metrics. These statements and reports can include the total amount of uptime in the specified period, the amount of downtime, and the cause(s) for the downtime.

Sometimes, depending on how support services are priced or addressed with your primary SaaS agreement, it may make more sense to address services levels and corresponding issues in a separate SaaS Service Level Agreement (SLA). A good SLA may go into detail regarding server environments, hardware configuration, security, and availability measurements.

Software as a Services Support and Maintenance Legal Terms

To reduce ambiguity in the future, the parties may want to contemplate explicitly stating whether technical support and maintenance services are included within the agreement and pricing. Areas to consider include obligations to address upgrades, new versions, and bug fixes. Further, if the SaaS requires downtime for maintenance or system upgrades, the parties may want to incorporate a notice provision. This can be tiered to handle routine maintenance and emergency maintenance.

Even detailing the simpler end of business logistics can provide much needed clarity. This may include stipulating customer support contact methods, regular hours and availability, weekend, after hours, and emergency availability, and primary points of contact, depending on the issue. If the technical support includes specific product training, you may want to draft for this in an exhibit or statement of work.

SaaS Agreement Severity Levels and Response Times

Even the best written software will have issues. Customers and service providers can both benefit from defining “fires” by level of severity. For example, critical response issues that require immediate attention may include significant corruption of data or complete inaccessibility of the services.

Less critical response issues may include stipulating what happens in the event of things like login issues and uploading and downloading difficulties. Low-level problems may include aspects like minor plug-ins and aesthetic user experience components.

Great SLAs and SaaS agreements will usually incorporate a target resolution time. For example, with top priority issues, a resolution time might be one to two business days or a provision that states that specific issues will be worked on until a solution is found. With issues of a lesser priority, the target resolution time can be four to five business days or as agreed to by the parties.

SaaS Attorney Columbus Ohio and Drafting SaaS Agreements

Whether you’re a SaaS company founder or a customer, you may know your software as a services needs inside and out. However, SaaS agreements can present a number of complex legal issues. If you feel that you would like to speak with our SaaS law firm in Columbus, Ohio today, please do not hesitate to contact us.


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