1. Representations and Warranties Indemnification Liability Caps
Evolution of IT Licensing: From Software Licensing to Software as a Service
Representations and Warranties
Indemnification
Liability Caps

2. SaaS Agreements: Reps & Warranties
Warranties typically very limited
Performance in accordance with [the Documentation/Services Policies]
“in material respects”
Reasonable and appropriate measures to secure Customer Content against accidental or unlawful disclosure or misappropriation
No viruses or other malware
For cases where cloud systems will interact with Customer systems
Disclaimer of all implied and other warranties
In some cases, SAAS Provider will make documentation available but may be unwilling to rep or covenant compliance

3. SaaS Agreements: Indemnification
By Provider: indemnity is often only for non-infringement
Provider obligations: modify the service, obtain a license, or terminate the service
Commonly negotiated exceptions:
Combinations with other services/technology
Use outside of scope provided in user documentation
Use of superseded version
By Customer:
Unauthorized or unlawful use of the service
Infringement by Customer Content

4. SaaS Agreements: Limitations on Liability
Commonly negotiated exclusions
Consequential damages
Punitive damages
Liability cap
Most common cap is 12 months fees
May include separate caps for different losses
Confidentiality
SLA failures
Reduced statute of limitations