From time to time, we like to post the thoughts of other clear thinkers in the IT industry. Our friend, Derek Singleton, over at ERP Software Buyer's Guide, has written the following article and has graciously given us permission to repost it. We have previously written a post on the same subject and cover similar issues. You can see that article here.
9 Key Points to Negotiate in a SaaS Agreement 
By: Derek Singleton
ERP Market Analyst at Software Advice
derek@softwareadvice.com
Derek recently graduated from Occidental College with a degree in political science. He writes about various topics related to ERP software and covers the manufacturing, distribution, and supply chain management software markets. In his spare time he enjoys training in boxing and martial arts.
Article:
So you’ve decided to go with Software-as-a-Service (SaaS). It’s easy to implement, easy to use and has a friendly subscription pricing model. You’re psyched.
Then comes the contract.
While SaaS has simplified enterprise software in many ways, you will still need to review, negotiate and execute a fairly complex contract when subscribing to an “enterprise-class” system. In this post, we will walk you through the nine most important things to consider when negotiating your SaaS agreement.
1. Pricing and Discounts
By pricing software as a utility service, SaaS vendors have simplified software licensing considerably. Most SaaS pricing is based on a subscription – monthly or annual payments for using the system during that period. The subscription pricing is typically based on one simple metric (e.g. users, records, projects) that roughly ties subscription fees to the value of the system. Finally, SaaS vendors tend to publish their pricing openly.
Even with this simplicity and transparency, there is still a need to be vigilant as a buyer. For one, don’t assume that straightforward published pricing means there isn’t room for some negotiation. Many SaaS vendors will discount up to 20% to win your business. The bigger the deal, the bigger the discount. Moreover, if the vendor’s pricing metric doesn’t fit with your business model, you might be able to negotiate custom pricing. Of course, you’ll have to make a cogent argument that the standard metric fails to balance price paid and value received.
2. Additional Costs
Another key component to pricing is ferreting out any extra costs early in the process. Published pricing may appear to be a good value, but extra fees can add up quickly. Common additional costs include extra users, customizations, integrations, third-party services, training and set-up fees. Work with your sales rep early in the process to understand what additional charges might apply to your account.
By far the best way to keep the additional costs down is to avoid customizations to functionality and integration with other systems. The inherent complexity in custom development and data integration makes these services expensive. We recommend that you start with the base system, make use of its core functionality and then assess how important the custom features or integrations are to your success. Start small, think big, grow quickly.
3. Term
If you are negotiating with a vendor over pricing discounts, subscription metrics and additional fees, expect to give something in return. Oftentimes, this means committing to an extended contract term. Vendors like longer terms because it provides more predictability in their revenue forecasting. Terms can be as short as 30 days or as long as five years. If the vendor wants a long-term subscription, we recommend that you start with the shortest – probably one or two years.
If you do agree to a longer term of three to five years, make sure you have an out clause. Typically this would provide a window of opportunity to break the contract during a specific time window. For example, it might allow you to walk after one month of using the system but before 90 days. Another example might be the ability to break the contract if certain levels of service are not provided consistently.
4. Service Level Agreements (SLAs)
Regardless of what you pay for the system, reliability is paramount. The SLA is the vendor’s commitment to keeping the system up and running. It is typically expressed as a percentage of “up time.” You will almost always see the SLA represented as 99.9% or thereabouts. However, there is wide variation in how that number is calculated. Many vendors will simply start with 100% and subtract time during which their internal systems reported an error. Most of these SLAs leave far too much wiggle room for vendors.
If this new SaaS system is mission critical, push the SLA issue to see who is really ready to stand behind their service. The SLA topic is far too detailed to delve into all the considerations here, so we’ll refer you to this great blog post on SLAs. However, we’ll suggest you focus most on the penalty for breaking the SLA when negotiating. Usually these penalties are paltry discounts paid out against future purchases. Just pushing for bigger penalties will provide great insight into the reliability of the system.
5. Renewals
Hopefully, you will want to renew your contract. However, given that the renewal process provides an important exit opportunity from a bad contract, as well as an opportunity to re-negotiate, make sure you are still in control when the renewal date comes around. Be on the lookout for something known as an “evergreen” renewal. An evergreen automatically renews your term, usually 30 days prior to expiration.
If you spot an evergreen renewal, ask to remove it. When a company refuses to remove the clause, this is a red flag. The vendor should have to continue to win your business. Not the other way around. Vendors who offer quality services can be confident that their customers will renew based on value, not because the customer forgot to cancel in time.
6. Scalable Pricing
As your business changes, you may want to expand your use of the system; or, unfortunately, you might need to scale back your use if business deteriorates. It seems likely that your vendor will be more than happy to grow your account, but what if you need to downgrade? In the current economy, this is all too common. Present this scenario to the salesperson and know your options.
In most cases, the vendor will not let you downgrade until the end of your term – another reason to keep the term relatively short. However, if you get in a pickle, you might be able to offer to extend the term of your contract in return for lowering the scale of your subscription.
7. Support
No matter how good the system is, you will need a little help somewhere along the way. Knowing what help is included in your support package is very important. A key point you will want to know is how you will receive support. Is it delivered via the web, by email, phone, or chat? Also ask about the hours of support availability. Is support available 24 / 7 or only during business hours?
Moreover, you should know the quality of support included in your package. A valuable metric for support quality is the response time guarantee. The best support organizations guarantee a thirty minute response time for emergencies and two hours in all other cases. Having a dedicated support staff (i.e. a “customer success manager”) is also very helpful. Flesh these points out in the contract. Just keep in mind that high levels of support might cost a little extra.
8. Backups and Recovery
You’ve trusted someone else with valuable business data; you don’t want them to lose it. Luckily, almost every SaaS vendor performs regular data backups. However, some providers backup more frequently than others. Most vendors will backup data either on a daily or weekly basis. If you input valuable data every day, then you will want to ensure the provider performs a backup each day. Others might back up throughout the day.
The way the backups are performed is also important. Some vendors maintain numerous backups, while others maintain only one and overwrite the previous backup. Creating separate entries allows you to rollback to a prior date if necessary. This takes up a lot of space so you will probably have to ask for it specifically. The final consideration with backups is whether the data is backed up in a separate data center. Keeping it at a separate center will add a buffer against data loss in the event of a data center disaster.
9. Data export
Finally, you will want to include a clause about data export. Two things are key here: you should always retain ownership of your data and you should know how to get it back. This will be most important in two scenarios: 1) if you want to migrate to a new system because you are unsatisfied; or, 2) the vendor goes out of business and you need access to your data even before you select a new system.
The method for getting your data back will vary, but common methods include a XML, CSV, and HTML. For the very technical, a SQL export may be better. That’s all well and good but what happens if the company fails? Most SaaS vendors have prepaid the data center hosting company to “keep the lights on” for a couple months in case they go out of business. This will keep the doors open long enough to get your data exported.
In the comments section below, please share your personal experiences with contract neogtiations. Also, feel free to add other considerations that you feel are important.
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he U.S. at a discount, imported them and began selling them at a price lower than Omega sells them domestically. Omega sued Costco alleging copyright infringement. Costco replied that they were not copyrightable and even if they were, the First Sale Doctrine applied. Omega said, "Not so fast, Costco" (or words to that effect), "there is an image of a globe on the back of each watch that is half a centimeter in diameter and that gives us copyright rights". Costco, in a haughty rejoinder, said "Well, so's your Mom and we can do this because of the First Sale Doctrine" (I made up the Mom part). Omega then pointed out that the Copyright Law states in pertinent part that the First Sale Doctrine set out in the copyright act applies only to copies "lawfully made under this title" [Section 109(a)]. Omega said since the watches were made outside the U.S. they were not "made under this title" and hence no First Sale Doctrine. 
M contained a software program that was licensed and not sold, then the First Sale Doctrine also does not apply and resale of the used discs can be prevented under the copyright provisions. The case was Vernor vs. Autodesk and 