As a provider of a B2B software-as-a-service (SaaS) product, your general terms and conditions (GTC) govern the legal relationships with your customers. GTC are ultimately standardized contracts that are used with multiple customers. As soon as such standard contracts are used, they are subject to the strict regulations of German GTC law (§§ 305 ff. BGB). This limits your options and, above all, creates challenges with regard to legal uncertainties.
In particular, the law on general terms and conditions is extremely restrictive when it comes to contracts with consumers. Although less strict standards apply to B2B contracts, the legal requirements must still be taken into account here as well.
A typical B2B SaaS contract often contains elements of a service contract, such as support services, in addition to aspects of tenancy law, for example for the use of IT infrastructure. Such contracts are considered to be “mixed-type contracts” and require precise legal drafting.
1. Product description
The first and most important step in drafting your terms and conditions is to provide a clear description of your product. Create an overview on a single A4 page of:
- The main functions of your SaaS solution
- The benefits for your customers
- The technical framework (e.g. server locations, availability, interfaces)
This description not only serves as the basis for the terms and conditions, but can also be added later as an attachment to the contracts. Clear information helps to avoid misunderstandings and strengthens your company's position in the event of legal disputes.
2. Remuneration and payment terms
Define how and when your customers should pay. Pay attention to:
- Pricing models: monthly license fees, one-time setup costs or usage-based fees.
- Payment terms: clear rules, such as “payment due within 14 days of invoicing.”
- Consequences of late payment: interest on arrears or the right to block services in the event of non-payment.
Particularly important: Make sure that clauses regarding price adjustments are clearly formulated and compatible with the T&C control.
3. Termination rules
B2B contracts should contain clear termination rules. The following points are relevant:
- Contract durations: Distinguish between fixed durations (e.g. 12 months) and flexible termination periods (e.g. “can be terminated monthly”).
- Reasons for termination: Define important reasons for extraordinary termination (e.g. breach of contract, insolvency).
- Post-termination obligations: Clarify what happens after termination, e.g. data migration or deletion of customer data.
4. Rights and obligations of the parties
This section governs the basic obligations between you and your customers:
- Rights of use: What rights does the customer have to your software? Usually, this is a simple, non-transferrable right of use.
- Support and availability: What service level agreements (SLAs) do you offer? Set minimum availability levels (e.g. “99.5% per month”).
- Duties of the customer: For example, compliance with security requirements or a ban on sharing access data.
5. Limitation of liability
SaaS providers should clearly limit their liability. Typical provisions include:
- Exclusion of liability for indirect damages (e.g. lost profits).
- Limiting the liability amount to a certain sum (e.g. the amount of the annual fee).
- Exclusion of liability for intent and gross negligence.
In the B2B sector, such limitations of liability are easier to enforce, but they must be formulated in a clear and understandable way.
6. Final provisions
This is the formal part of the terms and conditions, which regulates important legal framework conditions:
- Jurisdiction and applicable law: Usually “German law” and the registered office of your company.
- Text form clauses: Classic general terms and conditions often contain a clause stating that changes to the contract may only be made in writing. However, for online business models, it is advisable to use an adjustment clause in text form.
- Severability clause: Provision that the contract remains effective in all other respects if a clause is ineffective.
7. Attachments
Add relevant documents as appendices, e.g.:
- Product description and price list
- Data Processing Agreement
- SLA agreements
The modular structure with appendices ensures greater clarity and makes it easier for you to update individual documents when changes occur, without having to revise the entire terms and conditions.
Conclusion
Terms and conditions for a B2B SaaS business are the contractual basis for your business model and should protect it against legal risks. With a clear and concise structure, individually adapted to your business model, you create trust with your customers and avoid legal pitfalls.
Do you have any questions or need support in creating your terms and conditions? As an IT lawyer with experience in the SaaS sector, I am happy to support you in designing your contracts. Contact us for a non-binding initial consultation.