The SaaS model has become a key concept in today’s software deployment. It is already among the mainstream solutions on the IT market. But however easy and beneficial it may seem, there are many legal aspects one must be aware of, ranging from licenses and agreements up to data safety and information privacy.
Usually the problem starts already with the Licensing Agreement: Should the customer pay in advance or in arrears? What kind of license applies? The answers to these particular questions may vary from country to country, depending on legal practices. In the early days of SaaS, the vendors might choose between software licensing and service licensing. The second is more common now, as it can be combined with Try and Buy agreements and gives greater flexibility to the vendor. Moreover, licensing the product as a service in the USA provides great benefit to the customer as services are exempt from taxes.
The most important, however, is to choose between a term subscription and an on-demand license. The former requires paying monthly, annually, etc. regardless of the real needs and usage, whereas the latter means paying-as-you-go. It is worth noting, that the user pays not only for the software itself, but also for hosting, data security and storage. Given that the agreement mentions security data, any breach may result in the vendor being sued. The same applies to e.g. sloppy service or server downtimes. Therefore, the terms and conditions should be negotiated carefully.
Secure or not?
What the customers worry the most is data loss or security breaches. The provider should therefore remember to take necessary actions in order to prevent such a condition. They may also consider certifying particular services according to SAS 70 certification, which defines the professional standards used to assess the accuracy and security of a service. This audit statement is widely recognized in the USA. Inside the EU it is recommended to act according to the directive 2002/58/EC on privacy and electronic communications.
The directive claims the service provider responsible for taking “appropriate technical and organizational measures to safeguard security of its services” (Art. 4). It also follows the previous directive, which is the directive 95/46/EC on data protection. Any EU and US companies storing personal data can also opt into the Safe Harbor program to obtain the EU certification in accordance with the Data Protection Directive. Such companies or organizations must recertify every 12 months.
One must remember that all legal actions taken in case of a breach or any other security problem will depend on where the company and data centers are, where the customer is located, what kind of data they use, etc. Therefore it is advisable to consult a knowledgeable counsel on which law applies to a particular situation.
Beware of Cybercrime
The provider as well as the customer should nevertheless remember that no security is ironclad. It is therefore recommended that the providers limit their security obligation. Should a breach occur, the customer may sue the provider for misrepresentation. According to the Budapest Convention on Cybercrime, legal persons “can be held liable where the lack of supervision or control […] has made possible the commission of a criminal offence” (Art. 12). In the USA, 44 states imposed on both the vendors and the customers the obligation to notify the data subjects of any security breach. The decision on who is really responsible is made through a contract between the SaaS vendor and the customer. Again, careful negotiations are recommended.
Another issue is SLA (service level agreement). It is a crucial part of the agreement between the vendor and the customer. Obviously, the vendor may avoid making any commitments, but signing SLAs is a business decision required to compete on a high level. If the performance reports are available to the customers, it will surely make them feel secure and in control.
What types of SLAs are then required or advisable? Support and system availability (uptime) are a minimum; “five nines” is a most desired level, meaning only five minutes of downtime per year. However, many factors contribute to system reliability, which makes difficult estimating possible levels of accessibility or performance. Therefore, again, the provider should remember to give reasonable metrics, so as to avoid terminating the contract by the customer if any extended downtime occurs. Typically, the solution here is to give credits on future services instead of refunds, which prevents the customer from termination.
-Always negotiate long-term payments in advance. Unconvinced customers can pay quarterly instead of annually.
-Never claim to have perfect security and service levels. Even major providers suffer from downtimes or breaches.
-Never agree on refunding services contracted prior to the termination. You do not want your company to go bankrupt because of one agreement or warranty breach.
-Never overlook the legal issues of SaaS – all in all, every provider should take more time to think over the agreement.
If you are interested in obtaining more detailed information regarding SaaS solutions, please contact Verax Systems at http://www.veraxsystems.com.