However, in the event of misrepresentation (or misrepresentation), the deceived party may cancel the entire contract and recover the sums paid. In the event of a breach of the warranty, the refundable damages are the difference in the guaranteed value (i.e.: As they should have been) and the value they received. This is because „assurances” should be statements by a party after the investigation and convinced that such statements are true, and „guarantees” should be statements that a party makes when it is prepared to assume financial liability if the statement turns out to be false, that it is actually investigating or should have investigated. SaaS contracts are essentially service contracts and not software license agreements. As a result, much of the Legacy language of the last 30 years of software license does not match well. And the form files of lawyers who design SaaS contracts sometimes need to be updated to get provisions that fit better. This contribution is based on the negotiation of a hundred SaaS service agreements in order to highlight the really important issues. Before we get to the points you need to keep in mind during your next negotiation, we define what exactly insurance and guarantees are. Technically, a presentation is a promise that something is true at this point, and a guarantee is a promise that something will remain true in the future. A contract is nothing more than a series of exchanged promises – you give me something, and I give you money, and we both agree on a number of other minor points (that we all own our intellectual property, state laws, etc.).
So aren`t insurance and guarantees just more promises? This is what they certainly look like: a guarantee is an obligation or provision that a particular fact is or will be as indicated or promised with respect to the subject matter of the contract; and refers to an agreement to protect the beneficiary from loss if the fact is or becomes false (i.e.: Tacit compensation). „The SaaS Service Provider represents and warrants to the User: (i) that it has the right, power and ability to enter into and perform this Agreement; (ii) has all the rights necessary to grant the rights and licences granted under this Agreement; (iii) its performance under this Agreement and the provision of SaaS services comply with all applicable laws; and (iv) retains all licenses, permissions, and other authorizations necessary to provide the SaaS Services. A software license agreement is an agreement by which one copyright holder (licensor) will grant the use of a given software to another (licensee). It may be useful to imagine a software license agreement in a range from an End User License Agreement (EULA) to a software development agreement….