Accepting the test of a SaaS without a contract: what are the risks for the SaaS company?

It is not uncommon, in the life of a SaaS company, for a prospect to want to test the solution before engaging.

Nothing unusual: to convince a customer, especially a large account, a demonstration or test phase is often essential.

The problem arises when this test is carried out without any contract.

This scenario, which may seem trivial, nevertheless exposes the SaaS company to significant legal risks. These risks are all the greater when the test goes beyond a simple demonstration to involve real deployment, under production conditions.

‍

The concrete risks of a test without a contractual framework

Without a contract, the SaaS company has no safety net. Three points are particularly problematic:

1. Unlimited liability

‍In the absence of limiting clauses, the SaaS company may be held liable without limit. If a malfunction occurs during the test phase — service interruption, data loss, security breach — there is no contractual mechanism to limit the amount of potential damages.

‍

2. The absence of a DPA (Data Processing Agreement)

‍If the test involves the processing of personal data, article 28 of GDPR imposes a written data subcontracting contract between the customer and the SaaS company. Without DPA, both parties are in a situation of non-compliance, which may result in sanctions from the CNIL or another supervisory authority.

‍

3. The lack of a user license‍

Without a contract, the use of the software by the prospect is not subject to any license. This means that the rights of use are not regulated: no limitation on users, on duration, or on the functional scope. In the event of a dispute, the SaaS company will find it difficult to demonstrate abusive use.

‍

The operational consequences

A test without a contract not only poses a legal problem: it can also disorganize the commercial relationship.

For example:

The customer expects a high level of support, while the SaaS company has not planned any commitment in this area.
The scope of the test is unclear: the prospect gradually extends his use, until using the solution as if he had signed a production contract.
Business discussions turn into crisis negotiations if an incident occurs during the test.

In a B2B context, these situations can quickly compromise the relationship with a promising prospect.

‍

Best practices for overseeing a test phase

Fortunately, there are several solutions to secure a test phase, while maintaining the commercial flexibility necessary to close the sale.

‍

1. The complete POC contract‍

The Proof of Concept (POC) is a contract dedicated to the test phase. It states:

The functional scope of the solution provided
The duration of the test
Limits of liability
Support modalities
The conditions of access to data and the obligations related to the RGPD via a DPA

The advantage: a clear and specific framework that protects both parties.

The downside: you have to negotiate and sign an additional contract, which can make the sales process longer.

‍

2. The complete SaaS contract with early exit clause

‍This option consists in signing the final SaaS contract directly, but with a termination clause for convenience, valid for an initial period (30, 60, or 90 days, for example).
If the customer is not convinced, they can end the contract without penalty.
‍

Advantage: only one contract to negotiate, which speeds up the closing phase.

Disadvantage: the customer may not be ready to close the contract immediately.

‍

3. The trial period via a self-service tunnel

‍For SaaS companies who have an online offer with direct registration, it is possible to provide a trial period (7, 14 or 30 days) integrated into the customer journey.

In this case, the acceptance of the terms and conditions and a DPA is integrated into the registration process, which automatically secures the test phase.

‍

4. Testing limited to a sandbox environment

‍It is the fastest option but also the least secure:

The customer tests in an isolated environment
No real data is processed
Features are limited

This solution considerably reduces legal risk, but does not always allow the customer to validate the solution in conditions close to real life.

‍

Key points to include in a test contract

Whichever option is chosen, certain clauses must be included in the contract. I covered this topic in this article: https://www.pacaud-avocat.fr/blog/poc-saas-contrat-specifique

‍

Finding the balance between legal security and commercial fluidity

The challenge for a SaaS company is twofold:

Do not hold back sales with unnecessary administrative complexity
Do not expose yourself to a disproportionate legal risk

The key is therefore to adapt the contractual solution to the context:

Large account, sensitive data → solid POC contract
SMEs, short cycle → SaaS contract with exit clause
Standardized online offer → supervised trial period