3 key contract issues to sustain your SaaS business

By Hayden Delaney / 16 August 2022
6 min.

As inflation spikes and cheap money looks like a thing of the past, many are turning their attention to some of the sky-high valuations in the technology sector. Time will tell as to whether those valuations sustain or come crashing back to Earth as interest rates continue to rise. However, if recent experience is anything to go by, tech companies with robust balance sheets, reliable annuity revenue, and lower leverage seem to be faring well.

HopgoodGanim Lawyers act for many businesses in tech, big and small, particularly those in the Software as a Service or Platform-as-Service sector. For simplicity we will refer to both as SaaS in this article. 

From our experience in that sector, there are a number of unique factors that drive and sustain the high valuation and multiples of SaaS businesses. Interestingly, these three factors really underpin what makes the SaaS or cloud space attractive to investors in the first place:

  1. a business model that prioritises what is deemed to be “good” revenue (i.e. recurring or subscription revenue), over “other” revenue (one-off or ad-hoc revenue);
  2. term-locked, rolling licenses which bundle the software licence with other carefully scoped associated services, such as support and maintenance; and
  3. a scalable service offering that is, by design, the same for each and every customer and not intended to be customised in an infrastructure or core software sense – this is what is commonly referred to as a multi-tenanted application or platform.  

All of these factors can create a robust, resilient, and highly scalable business.

Yet, time and time again, we see businesses forgetting to ensure that these unique factors are actually translated into their contracts. The consequences on an exit or M&A event can range from receiving a sub-par valuation, to an entire deal falling over.

This article examines three key factors to address in each SaaS contract that can make or break a deal in the SaaS space, whether that be a capital raise or an acquisition.

1. Recurring revenue reigns supreme – but does your contract actually reflect this?

As noted above, a key reason for high valuations in the SaaS sector is because businesses in that sector are, or should, be underpinned by contracts which push all the value into a recurring service fee which is paid in regular (often monthly) instalments. This results in more regular, less-lumpy, cash flow. From an investor or acquirer’s perspective, reliable cash flow in a fixed-term contract is attractive, particularly in a business that has the capacity to scale up that model with rapid growth in revenue.

Despite this, it is common to see contracts for SaaS services that undermine the recurring revenue model and seek to fetter or split a recurring fee into many one-off fees, together with broad termination rights (discussed further in 2 below), scope variations and delay cost clauses. This often can be driven by the customer’s preferred “standard form” contract, or procurement teams trying to squeeze a square peg into a round hole. But there are consequences for this – do not expect to receive the same high SaaS sector valuation for your business, at least from a sophisticated investor.

One-off revenue arising from custom development or lengthy implementations typically have lower profit margins, and are more prone to being eroded by scope creep, delay, and disputes. That is why many SaaS vendors seek to carve off that side of the business or refer it to third party implementation and integration specialists.

A properly drafted SaaS contract should attempt to define a clear software licence scope, together with a clearly scoped maintenance and support services offering, all wrapped up in a subscription fee. The subscription fee itself may vary based on consumption of the service. You may wish to consider drafting the contract so that it does not even contemplate the ability to pay for services on a one-off basis, unless there is a good business reason for doing so. 

2. Fixed term, rolling licences

The right to use the software and receive services should be bound by a fixed term or duration, and ideally rollover for future recurring terms.

There should not be any perpetual licenses to software or intellectual property (IP) rights in software.

In our experience, this can be common where government framework agreements and standard form procurement contracts are utilised.

Despite government framework agreements accommodating cloud services via specific modules, these can sometimes be poorly implemented. It is not uncommon to see perpetual licences to IP encompassed in broad definitions, such as “deliverables”. Granting a perpetual licence to a SaaS product is completely anathema to the business model and will do damage to your business if you are a vendor of those products. 

In addition, rights to terminate for convenience or notice should be avoided. This is because the cost of the various services and infrastructure wrapped up in a SaaS contract are usually spread across the duration of the contract and early termination could result in those costs not being recovered. Finally, a contract with a termination of convenience right in it, will not entitle the entire contract value to be counted as revenue, which in turn adversely affects the valuation of the business.

3. Scalable and multi-tenanted

The final factor that is very important to remember is that the scalability and profitability of many SaaS businesses is underpinned by the simple fact that the service offering is, by design, the same for each and every customer and not intended to be customised. This enables a SaaS business to grow quickly as in theory, customers can be efficiently onboarded with minimal customisation to the underlying core software and infrastructure. This in turn, leads to the ability to sign-up customers rapidly and to grow the business.

From a contractual standpoint, SaaS vendors should be on the lookout for clauses that undermine the scalable, multi-tenanted nature of the product. For example, a clause which requires the SaaS vendor to comply with specific technical or operational security requirements is unlikely to be practical. This is because a multi-tenanted product has the same underlying infrastructure, technical and operational security measures for all customers. 

If you have any questions or would like to discuss your circumstances, get in touch with our Intellectual Property and Technology team

Key Contacts
Hayden Delaney
Hayden is a Partner and he leads HopgoodGanim’s Intellectual Property, Technology and Cyber Security team. Hayden has extensive experience in the information, communications and technology sector, and intellectual property law.

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