How to create and earn SaaS (Accidentally forgotten Part 9 / Legal Fog SaaS)
Situation - your team develops a SaaS service, you even sell it, and before selling it would not hurt to make a user agreement, to understand what SaaS means from legal and contractual points of view. You sit down together with lawyers, partners and colleagues, and here begins a complete fog, which I will try to disperse today with respected market experts.
* aaS top view
Time * aaS in the Russian legislation has not yet arrived, and so far all lawmaking, unfortunately, does not play in the field of clouds, but hits them. From a good, a few weeks ago, a landmark event occurred for the cloud segment of the IT industry - a council was created under the Ministry of Communications and Mass Communications of the Russian Federation, the purpose of which is to regulate legislatively cloudy market initiatives, including Several independent RCCPA participants have joined the council - and this gives us hope for the speedy development of Russian cloud standards and the creation of a legislative base * aaS.
While in cloud computing, business as a whole is guided by NIST standards and its experience. Experience is rather the use of existing practices and their adaptation to the cloud format. An example is the implementation of a user agreement in classic and cloud hosting is very similar and, by and large, for a client there is no difference what services to consume “iron” or cloud, but there are, as they say, nuances that, I hope, are governed by the aforementioned advice.
')
The best example of the nuance and the service seems to be there, but no one knows where he is.
Option A SaaS is Licenses.
SaaS is developed by companies that have historically left the “boxed” software and most of their work operate with the concepts of “License for the right to use software” and hence the whole contractual game is based on software licensing, transfer of rights with amendments to NK - VAT exemption benefits, transfer of rights by partners and its replication. What we see in this approach tezisno:
- When a service is sold, software rights are transferred and the lack of a service — I do not provide services for access to software.
- There is no need for licensing activities - telematic services ... and why do I need it?
- In the case of working with partners, I give a license, on the basis of a license, a partner forms a service, adds VAT / or a partner transfers the right to software to the client without VAT / or a partner an agent who receives a fee for resale or software or services (as agreed excellent freedom of choice of options for the use of intellectual property rights).
- In SLA, you can put all that relates to access to the service, its efficiency and data integrity, but still the key word in this scheme is the License with all that it implies. SLA can be affiliate. Example, placement of software in a data center certified by TIER 3. I transfer part of the responsibility (access, data integrity, backups) to the partner and this is its value.
- 2 contracts with the client - Licensed and Technical Support (SLA).
- No VAT.
- The offer is questionable.
Thin place - the question of working with software / software delivery to the user. On the one hand, I don’t care what and how the user works with the application (provider, browser, client) and transfer my business right, on the other hand, I understand perfectly that all calculations are performed on my servers (partner servers) and I must to be more responsible for the processes of work and the delivery of the results of the work of applications to users.
Option B SaaS is a hardware-software complex that guarantees the serviceability of the service, its availability and data integrity. In fact, a developer company with this approach turns into a service provider from its public or partner cloud. Here it is:
- Provided service to provide service.
- There is a VAT.
- The concept of license is leveled. Although everything should be built around it (see the comments of experts).
- There is a need to obtain a license for telematics.
- In the case of working with partners, there is only an agent scheme.
- Perhaps there are direct obligations on data integrity.
- User agreement includes SLA explicitly.
- Work with the offer is even more doubtful.
Yes, in practice, developers and even cloud service shops use both schemes. Quickme and I love the first one and it works great and I give the floor to highly respected experts.
Lyudmila Kharitonova Partner of the Law Company "Zaritsyn & Partners"
Admittedly, a few years ago, the words of Saas sounded terrible for Russian lawyers. Disputes about the legal nature of the contract for Saas have not subsided even now.
This is largely due to the lack of legislative regulation and judicial practice.
In my opinion the most correct from the point of view of the law is precisely the license agreement, since This is the construction provided for by the Civil Code for the transfer of rights to an intellectual property object.
At the same time, if related services constitute a significant share, that is, to draw up a separate service contract. To reduce the whole structure only to the provision of services is not true, since At the heart of everything is the use of software (even if this is not a familiar way).
In judicial practice, the issue of legal nature was not posed. I know only one court decision which indirectly refers to the provision of software based on Saas (together with a large number of other independent services). There, the court indicates that these relations are the provision of services (see. AC Decision of the Novosibirsk Region. Dated June 4, 2014, in case No. A45-402 / 2014). But such a single decision can not yet be taken as a basis for action.
Yaroslav Osetrov CEO cloud platform for the automation of dental clinics Dental-Cloud
Alexey, the value of my product is to give clinics a simple and convenient automation tool in the cloud. The fact that the patient's medical data is forbidden to be stored in the cloud, we understand and will think about it. As an option, we implement the storage of patient's personal data on the clinic side and this will be some kind of hybrid cloud - that is, we are ready to adapt our decisions to lawmaking and do not do this immediately because of the opacity of the rules and the lack of clear comments from the new Russian law .
I build a service on Azure and I don’t need to create my own cloud, i.e. comfortable option A from your classification and I will ask colleagues questions related to the legal aspects of working with the platform.
Askar Rakhimberdiev CEO MoySklad
The main legal question that arises when selling SaaS is the choice of the type of contract between the provider and the user. There are two relatively equivalent options - a license agreement and a service agreement. Let's look at both contracts from the point of view of the provider and the user.
A license agreement is a familiar way of transferring rights to use software. For the provider, it is convenient, first of all, because it is not subject to VAT. In this case, user rights are limited quite strongly, and the responsibility of the provider is minimal. You cannot include the terms of the SLA in the license agreement - for this you need to enter into a separate agreement for the provision of technical support. Most providers do not do this, which means that from a legal point of view, the quality of service (availability, performance) is not regulated at all. Another point: you can not return the purchased license. If you bought a one-year subscription to the service under a license agreement and six months later you wanted to return the unspent funds, the provider is not obliged to do so.
A service contract is a traditional form of agreement, according to which hosting, telecom services and the like are usually provided. In general, this gives more user rights and imposes more stringent requirements on the provider. SLA conditions fit well into it. If, under a license agreement, the licensor is only obliged to transfer the license and is not responsible for anything further, then the provider must ensure the quality of the service when providing the service. Further, according to the Civil Code, the customer has the right to demand an unspent advance payment under the contract. Thus, whatever is written in the service agreement, the user always has the right to return the unspent part of the advance.
There are two other important legal issues that cause a lot of discussion. Does the SaaS provider need a license to provide telematic communication services and how to ensure compliance with Law 152- on personal data.
In general, I would say that the legal aspects of the provision of cloud services are still poorly developed. I hope that the advisory council recently formed at the Ministry of Communications will help to get things off the ground. ( http://minsvyaz.ru/ru/doc/?id_4=1137 )
Aida Legrand STO Witget.com
It must be borne in mind that your relationship with the client / user is not limited to the transfer of rights or the provision of services to him: you will also have to receive money from him and, accordingly, in some way arrange it. Our service is designed for a scalable market, and the average check is unlikely to be more than $ 30. Therefore, considering our relations with potential clients, it was critical for us not to “dig in” in accounting problems, printing, signing and sending packs of acts each month.
In option B, you provide a service, respectively, to "report" to the client by an act you have to. And also send him the original by mail, get his signature, get a second copy ...
For Witget, we have chosen the option of entering into a license agreement to a greater extent precisely in order to save both ourselves and our clients from the monthly burden.
Alexey Kalachnikov /
Blog author http://www.bootstrap24.ru/
Materials series "How to create and earn on SaaS"
* aaS top view
Time * aaS in the Russian legislation has not yet arrived, and so far all lawmaking, unfortunately, does not play in the field of clouds, but hits them. From a good, a few weeks ago, a landmark event occurred for the cloud segment of the IT industry - a council was created under the Ministry of Communications and Mass Communications of the Russian Federation, the purpose of which is to regulate legislatively cloudy market initiatives, including Several independent RCCPA participants have joined the council - and this gives us hope for the speedy development of Russian cloud standards and the creation of a legislative base * aaS.
While in cloud computing, business as a whole is guided by NIST standards and its experience. Experience is rather the use of existing practices and their adaptation to the cloud format. An example is the implementation of a user agreement in classic and cloud hosting is very similar and, by and large, for a client there is no difference what services to consume “iron” or cloud, but there are, as they say, nuances that, I hope, are governed by the aforementioned advice.
')
The best example of the nuance and the service seems to be there, but no one knows where he is.
SaaS - legal designs, as a result of the views of the business
Option A SaaS is Licenses.
SaaS is developed by companies that have historically left the “boxed” software and most of their work operate with the concepts of “License for the right to use software” and hence the whole contractual game is based on software licensing, transfer of rights with amendments to NK - VAT exemption benefits, transfer of rights by partners and its replication. What we see in this approach tezisno:
- When a service is sold, software rights are transferred and the lack of a service — I do not provide services for access to software.
- There is no need for licensing activities - telematic services ... and why do I need it?
- In the case of working with partners, I give a license, on the basis of a license, a partner forms a service, adds VAT / or a partner transfers the right to software to the client without VAT / or a partner an agent who receives a fee for resale or software or services (as agreed excellent freedom of choice of options for the use of intellectual property rights).
- In SLA, you can put all that relates to access to the service, its efficiency and data integrity, but still the key word in this scheme is the License with all that it implies. SLA can be affiliate. Example, placement of software in a data center certified by TIER 3. I transfer part of the responsibility (access, data integrity, backups) to the partner and this is its value.
- 2 contracts with the client - Licensed and Technical Support (SLA).
- No VAT.
- The offer is questionable.
Thin place - the question of working with software / software delivery to the user. On the one hand, I don’t care what and how the user works with the application (provider, browser, client) and transfer my business right, on the other hand, I understand perfectly that all calculations are performed on my servers (partner servers) and I must to be more responsible for the processes of work and the delivery of the results of the work of applications to users.
Option B SaaS is a hardware-software complex that guarantees the serviceability of the service, its availability and data integrity. In fact, a developer company with this approach turns into a service provider from its public or partner cloud. Here it is:
- Provided service to provide service.
- There is a VAT.
- The concept of license is leveled. Although everything should be built around it (see the comments of experts).
- There is a need to obtain a license for telematics.
- In the case of working with partners, there is only an agent scheme.
- Perhaps there are direct obligations on data integrity.
- User agreement includes SLA explicitly.
- Work with the offer is even more doubtful.
Yes, in practice, developers and even cloud service shops use both schemes. Quickme and I love the first one and it works great and I give the floor to highly respected experts.
Expert opinions
Lyudmila Kharitonova Partner of the Law Company "Zaritsyn & Partners"
Admittedly, a few years ago, the words of Saas sounded terrible for Russian lawyers. Disputes about the legal nature of the contract for Saas have not subsided even now.
This is largely due to the lack of legislative regulation and judicial practice.
In my opinion the most correct from the point of view of the law is precisely the license agreement, since This is the construction provided for by the Civil Code for the transfer of rights to an intellectual property object.
At the same time, if related services constitute a significant share, that is, to draw up a separate service contract. To reduce the whole structure only to the provision of services is not true, since At the heart of everything is the use of software (even if this is not a familiar way).
In judicial practice, the issue of legal nature was not posed. I know only one court decision which indirectly refers to the provision of software based on Saas (together with a large number of other independent services). There, the court indicates that these relations are the provision of services (see. AC Decision of the Novosibirsk Region. Dated June 4, 2014, in case No. A45-402 / 2014). But such a single decision can not yet be taken as a basis for action.
Yaroslav Osetrov CEO cloud platform for the automation of dental clinics Dental-Cloud
Alexey, the value of my product is to give clinics a simple and convenient automation tool in the cloud. The fact that the patient's medical data is forbidden to be stored in the cloud, we understand and will think about it. As an option, we implement the storage of patient's personal data on the clinic side and this will be some kind of hybrid cloud - that is, we are ready to adapt our decisions to lawmaking and do not do this immediately because of the opacity of the rules and the lack of clear comments from the new Russian law .
I build a service on Azure and I don’t need to create my own cloud, i.e. comfortable option A from your classification and I will ask colleagues questions related to the legal aspects of working with the platform.
Askar Rakhimberdiev CEO MoySklad
The main legal question that arises when selling SaaS is the choice of the type of contract between the provider and the user. There are two relatively equivalent options - a license agreement and a service agreement. Let's look at both contracts from the point of view of the provider and the user.
A license agreement is a familiar way of transferring rights to use software. For the provider, it is convenient, first of all, because it is not subject to VAT. In this case, user rights are limited quite strongly, and the responsibility of the provider is minimal. You cannot include the terms of the SLA in the license agreement - for this you need to enter into a separate agreement for the provision of technical support. Most providers do not do this, which means that from a legal point of view, the quality of service (availability, performance) is not regulated at all. Another point: you can not return the purchased license. If you bought a one-year subscription to the service under a license agreement and six months later you wanted to return the unspent funds, the provider is not obliged to do so.
A service contract is a traditional form of agreement, according to which hosting, telecom services and the like are usually provided. In general, this gives more user rights and imposes more stringent requirements on the provider. SLA conditions fit well into it. If, under a license agreement, the licensor is only obliged to transfer the license and is not responsible for anything further, then the provider must ensure the quality of the service when providing the service. Further, according to the Civil Code, the customer has the right to demand an unspent advance payment under the contract. Thus, whatever is written in the service agreement, the user always has the right to return the unspent part of the advance.
There are two other important legal issues that cause a lot of discussion. Does the SaaS provider need a license to provide telematic communication services and how to ensure compliance with Law 152- on personal data.
In general, I would say that the legal aspects of the provision of cloud services are still poorly developed. I hope that the advisory council recently formed at the Ministry of Communications will help to get things off the ground. ( http://minsvyaz.ru/ru/doc/?id_4=1137 )
Aida Legrand STO Witget.com
It must be borne in mind that your relationship with the client / user is not limited to the transfer of rights or the provision of services to him: you will also have to receive money from him and, accordingly, in some way arrange it. Our service is designed for a scalable market, and the average check is unlikely to be more than $ 30. Therefore, considering our relations with potential clients, it was critical for us not to “dig in” in accounting problems, printing, signing and sending packs of acts each month.
In option B, you provide a service, respectively, to "report" to the client by an act you have to. And also send him the original by mail, get his signature, get a second copy ...
For Witget, we have chosen the option of entering into a license agreement to a greater extent precisely in order to save both ourselves and our clients from the monthly burden.
Alexey Kalachnikov /
Blog author http://www.bootstrap24.ru/
Materials series "How to create and earn on SaaS"
- Part I / remove all unnecessary, hit the target, experiment
- Part 2 / invaluable experience of Russian ISV
- Part 3 / sales through an affiliate channel that may not be needed
- Part 4 / Startta Quickme - communication and collaboration of small teams
- Part 5 / pervasive SaaS integration, how nice the threat is to the rest of the software business or how 1 + 1 turns into 3
- Part 6 / Quickme story for partners or 7 reasons to do things together
- Part 7 prefinal / why not sell SaaS?
- Part 8 - FINISH / SaaS - the realities of the Russian market
- Accidentally forgotten Part 9 / Legal SaaS fog
- Part 10 / Business Model Metrics
- Part 11 / Cloud Services Reviews / UX and Usability Testing
Source: https://habr.com/ru/post/231099/
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