Lesson 1Warranties, representations, and compliance covenants: export controls, sanctions, anti-corruption (anti-bribery) representationsThis section analyzes warranties, representations, and compliance covenants in cross-border software and SaaS deals, focusing on export controls, sanctions, and anti-corruption rules, and how to allocate compliance risk between provider and customer, minimizing legal exposures.
Regulatory due diligence and risk mappingDrafting export control and sanctions clausesAnti-corruption and anti-bribery undertakingsOngoing compliance monitoring and reportingAudit, cooperation and information rightsLesson 2Data protection and data transfer clauses: data processing agreements, controller-processor allocation, standard contractual clauses (SCCs), binding corporate rules (BCRs)This section covers data protection clauses in cross-border SaaS, including roles of controller and processor, key terms of data processing agreements, lawful transfer mechanisms, and how to use SCCs and BCRs to manage international data flows, ensuring privacy compliance.
Identifying controller and processor rolesCore terms of data processing agreementsUse of SCCs for international transfersImplementing and relying on BCRsSecurity, breach notice and audit clausesLesson 3IP protection and licensing clauses: ownership, reserved rights, derivatives, open-source carve-outs, assignment, moral rights in GermanyThis section examines IP ownership and licensing in software and SaaS contracts, addressing allocation of rights, reserved and background IP, derivatives, open-source components, assignment limits, and specific issues around moral rights in Germany, protecting innovations.
Defining ownership and background IPLicense scope, territory and durationDerivatives, improvements and feedbackOpen-source disclosures and complianceAssignments, sublicensing and moral rightsLesson 4Limitation of liability and indemnities: drafting caps, consequential loss carve-outs, liability for breach of data protection and IP infringementThis section explores limitation of liability and indemnity structures in cross-border software and SaaS contracts, including caps, exclusions, carve-outs for data and IP, defense and settlement control, and coordination with insurance coverage, balancing risks effectively.
Overall caps and super-caps on liabilityExclusions and consequential loss carve-outsData protection and security liabilitiesIP infringement indemnity mechanicsInsurance, subrogation and recoveriesLesson 5Applicability of international instruments: CISG scope, software licenses, services vs goods, when CISG applies and strategies to exclude itThis section explains when the CISG may govern cross-border software and SaaS contracts, how to distinguish goods from services and licenses, interpret CISG scope, and draft clauses to include, modify, or exclude its application strategically, aiding contract certainty.
CISG scope and basic structureSoftware as goods, services or licensesTypical SaaS fact patterns under CISGDrafting CISG exclusion or modificationInteraction with domestic sales lawLesson 6Choice of governing law: principles, party autonomy, public policy limits, and enforceability in Germany and SingaporeThis section explains how to choose governing law for cross-border software and SaaS contracts, covering party autonomy, mandatory rules, public policy, and enforceability concerns, with specific focus on German and Singaporean conflict-of-laws regimes, ensuring enforceability.
Party autonomy and its legal limitsMandatory rules and public policyComparing German and Singapore approachesCoordination with jurisdiction clausesImpact on enforcement and remediesLesson 7Termination, migration and post-termination assistance: data retrieval, transition services, escrow options for hosted servicesThis section addresses termination structures in SaaS contracts, including triggers, notice and cure, data retrieval rights, migration and transition services, escrow for critical hosted components, and post-termination confidentiality and assistance, facilitating smooth exits.
Termination triggers, notice and cureCustomer data export and retrieval rightsTransition and migration service obligationsSource code and data escrow optionsPost-termination confidentiality dutiesLesson 8Essential contract clauses for software and cloud services: scope of license, delivery, acceptance, service levels (SLA), uptime and maintenance obligationsThis section identifies essential clauses for software and cloud contracts, including license grant, service description, delivery and acceptance, SLAs, uptime and support, maintenance windows, and remedies for service failures or chronic downtime, upholding service quality.
Defining scope of license and servicesDelivery, go-live and acceptance testingService levels, uptime and creditsSupport, maintenance and updatesChange management and service evolution
