Spot the risks in a software contract
Task
You are advising the customer, a 40-person design agency, before it signs this software subscription agreement. List the three biggest risks to the customer in order of importance. For each, explain the risk in one or two sentences and propose replacement wording. Keep the whole answer under 250 words. Clause: "In no event shall Provider's aggregate liability arising out of or related to this Agreement exceed the fees paid by Customer in the one (1) month preceding the claim. Provider may modify the Services or these terms at any time by posting notice on its website, and Customer's continued use constitutes acceptance. Customer shall indemnify Provider against all claims arising from Customer Data, including claims caused by Provider's negligence. This Agreement renews automatically for successive twelve (12) month terms unless Customer gives written notice of non-renewal at least ninety (90) days before the end of the then-current term."
Top Three Risks to the Customer
1. Indemnity covers Provider's own negligence
The agency must pay Provider's losses for Customer Data claims even when Provider caused them, such as a breach of client files through Provider's poor security. This exposure is uncapped and reverses who bears the fault.
Replacement: "Customer shall indemnify Provider against third-party claims alleging that Customer Data, as provided by Customer, infringes third-party rights, except to the extent caused by Provider's negligence, willful misconduct, or breach of this Agreement."
2. Liability cap of one month's fees
If Provider loses or leaks client work, the agency's recovery is limited to roughly one month's subscription. That is almost no remedy.
Replacement: "Provider's aggregate liability shall not exceed the greater of fees paid in the twelve (12) months preceding the claim or $[X]. This cap shall not apply to Provider's breach of data security or confidentiality obligations, indemnification obligations, gross negligence, or willful misconduct."
3. Unilateral changes by website posting
Provider can change the services or any term, including risks 1 and 2, without direct notice. Continued use then counts as acceptance.
Replacement: "Provider may not materially reduce the Services during a term. Changes to these terms require thirty (30) days' written notice to Customer by email. If a change is adverse, Customer may terminate without penalty and receive a pro-rata refund of prepaid fees."
Also negotiate: Shorten the 90-day non-renewal notice to 30 days, and require Provider to send a renewal reminder.
1. Broad, potentially uncapped customer indemnity
The agency could have to defend and pay claims caused by the Provider’s own negligence, while only the Provider benefits from the liability cap.
Replacement: “Customer shall indemnify Provider only against third-party claims to the extent caused by Customer’s unlawful provision of Customer Data, excluding losses attributable to Provider’s negligence, misconduct, or breach. This obligation is capped at twelve months’ subscription fees. Customer controls the defense; settlements imposing obligations on Provider require Provider’s reasonable consent.”
2. Provider liability capped at one month’s fees
This could leave the agency recovering almost nothing after a serious outage, lost client work, or data breach.
Replacement: “Provider’s aggregate liability shall not exceed the fees paid or payable for twelve months of Services. For breaches of confidentiality or data-security obligations, the cap shall be twice that amount. No cap applies to Provider’s fraud, willful misconduct, or liability that cannot lawfully be limited.”
3. Unilateral changes compounded by renewal lock-in
The Provider can change functionality or contractual protections without meaningful consent, while the 90-day deadline risks trapping the agency in another annual term.
Replacement: “Material changes to these terms require Customer’s express written agreement. Provider shall give 60 days’ advance written notice of materially adverse Service changes; Customer may terminate before implementation and receive a prorated refund of prepaid unused fees. Renewal requires Customer’s written agreement; otherwise, this Agreement expires at the end of the current term.”
What a strong answer includes. The clause contains four customer risks: a one-month liability cap, unilateral changes by website notice, an indemnity that covers the provider’s own negligence, and a 90-day auto-renewal notice window. Strong answers prioritize the liability cap and the negligence indemnity and give usable replacement wording.