A SaaS agreement is not a standard commercial contract with technology provisions bolted on. The subscription model, the cloud delivery architecture, the data handling relationship, and the scalability of SaaS products each create specific legal considerations that require deliberate, technically informed drafting. A poorly structured SaaS agreement creates risk at every point — in the relationship with customers, in the handling of customer data, and in the firm’s position if a customer disputes service quality or data loss.

EAGLEGATE advises SaaS providers on terms of service and enterprise agreements that are commercially effective and legally robust, and advises enterprise customers reviewing and negotiating SaaS terms. We approach SaaS agreements from genuine technical understanding — Nicole Murdoch’s engineering and IT background means we understand what the product actually does and what the agreement needs to govern.

Your SaaS terms govern every customer relationship at scale. Weaknesses in them are replicated across your entire customer base.

Key SaaS Agreement Expertise — Draft, Negotiate, Protect

EAGLEGATE advises SaaS providers and enterprise customers across the full range of SaaS agreement issues.

Terms of Service and Standard Form Agreements

SaaS providers typically present their terms of service as a standard form. Since November 2023, unfair contract terms in standard form consumer contracts with eligible small businesses are not merely void but illegal under the Competition and Consumer Act 2010 (Cth). EAGLEGATE advises SaaS providers on structuring terms that are commercially effective and compliant with the unfair contract terms regime, and advises enterprise customers on negotiating more favourable terms.

Data Ownership and Privacy Obligations

Who owns customer data that flows through a SaaS product? What can the provider do with it — aggregate, analyse, use for product improvement? What happens to customer data on termination — is it deleted, returned, or retained? These questions must be addressed in the SaaS agreement. For products handling personal information and where the Privacy Act applies, the agreement must also address privacy compliance — particularly the obligations that apply to a service provider handling personal information as a data processor on the customer’s behalf.

Intellectual Property — Platform and Customer Content

A SaaS agreement must clearly address: who owns the platform IP (the provider); who owns customer data and customer-generated content (the customer); what licence the customer grants to the provider to use customer data for service delivery; and whether the provider can use customer data for other purposes (product improvement, analytics, AI training). Under the Copyright Act 1968 (Cth), copyright in customer-created content vests in the customer absent an express provision — but the scope of the licence the customer grants to the provider for that content is entirely a matter of contract.

Service Level Agreements and Credits

Uptime commitments, incident response times, and support tier specifications are commercially significant — and the remedies for SLA failure must be proportionate to the impact on the customer. EAGLEGATE advises on SLA structures that are commercially realistic for the provider to commit to and meaningfully protective for the customer.

Termination and Data Return

What happens at the end of a SaaS subscription? The customer should have the right to export their data in a usable format before termination takes effect. The provider should have clear rights to delete customer data after a defined retention period. Termination for non-payment, termination for breach, and termination for convenience each need different provisions.

1. Understand the Product and the Customer Base

We understand what the SaaS product does, who its customers are, and where the key commercial and legal risks in the relationship lie before drafting.

2. Structure for Scalability

SaaS terms govern every customer relationship. We draft terms that work at scale — not just for the current customer base.

3. Draft and Negotiate

We draft standard terms, enterprise agreements, and data processing agreements, and negotiate with customers’ legal teams on enterprise deals. Our objective is an agreement both parties are willing to sign — one that protects the client’s rights and position without stalling the deal.

4. Update as the Product and Law Evolve

SaaS products change frequently, and the legal landscape around data and AI is developing rapidly. EAGLEGATE advises on updating SaaS agreements as both the product and the regulatory environment evolve.