How to Negotiate a Saas Agreement Under Romanian Law

Whether you are a buyer procuring a cloud platform for your Romanian operations or a vendor selling into the Romanian market, knowing how to negotiate a SaaS agreement under Romanian law is the single most important step you can take before signing. Romania sits at the intersection of EU regulatory frameworks, principally the GDPR, and its own Civil Code contract rules, creating a negotiation landscape that rewards preparation and punishes vague drafting. At Olawru, I routinely advise both sides of the table on SaaS contracts that must work under Romanian jurisdiction, and this guide distils the clause-by-clause playbook I use in practice.

Below I set out the six pillars every negotiator should address, complete with sample language, buyer and vendor positions, and the Romanian-specific regulatory hooks that most generic guides miss.

SaaS negotiation checklist for Romania, at a glance:

• Scope & service definition. Pin down what the SaaS service includes, who may use it, and how changes are controlled.
• Service levels & remedies. Set measurable SLAs with enforceable credits and escalation triggers.
• Data protection. Include a GDPR-compliant Data Processing Addendum (DPA), map cross-border transfers, and align with ANSPDCP guidance.
• Security & audit rights. Define technical and organisational measures, audit frequency, and vendor IP protections during audits.
• Liability, indemnities & insurance. Agree on liability caps, carve-outs for data breaches and IP infringement, and minimum insurance levels.
• Exit assistance & data portability. Guarantee data return in a usable format, transition support, and deletion obligations at contract end.

Understanding the Commercial Scope and Parties

The foundation of any SaaS contract in Romania is a precise definition of the service. A poorly drafted scope clause is the most common source of disputes I encounter, because it creates ambiguity about what the vendor is obliged to deliver and what the buyer is entitled to receive.

Defining the service

SaaS, hosted, and managed services are treated differently under the Romanian Civil Code (Book V, “On Obligations”), particularly when classifying the contract as one of services (prestări servicii) versus a licence. Clarify whether the vendor is providing access to a standard multi-tenant platform, a single-tenant hosted instance, or a managed service with customisation. Each model carries different obligations regarding uptime, data isolation, and update frequency.

Licensed users vs named users

Specify whether licences are per named user, per concurrent user, or based on consumption metrics (API calls, storage, transactions). Include a mechanism for overage billing, reporting frequency, and reconciliation. In my experience, disputes about user counts often escalate when the contract fails to define “active user” versus “provisioned user.”

Change control procedure

Romanian contract law permits freedom of contract under the Civil Code, but any material change to the service scope should flow through a documented change control procedure. At minimum, the contract should require:

• Written change requests with impact assessment (cost, timeline, scope).
• Mutual written approval before any change takes effect.
• A versioning mechanism for the service description annex.

Sample clause, buyer-lean: “No amendment to the Service Description shall take effect unless approved in writing by both parties. The Vendor shall provide at least 30 days’ prior notice of any material change to functionality, including an impact assessment.”

Sample clause, vendor-lean: “The Vendor may update the Service in its sole discretion, provided that such updates do not materially reduce core functionality. The Vendor shall notify the Customer of material changes via the platform dashboard.”

Negotiating Service Levels, Monitoring and Remedies for a SaaS Agreement Under Romanian Law

Service level agreements are the commercial backbone of a SaaS contract. Under Romanian law, the enforceability of SLA remedies depends on whether they are structured as liquidated damages (clauză penală) under Articles 1538–1543 of the Romanian Civil Code, which means courts can reduce penalty clauses they deem manifestly excessive. Getting the structure right matters.

SLA measurement and reporting

Define uptime as a percentage of available minutes per calendar month, excluding scheduled maintenance windows. Specify the measurement tool (vendor’s monitoring system or an independent third-party tool) and require the vendor to publish monthly availability reports. Buyers should insist on access to a real-time status dashboard and the right to dispute availability data within a defined window.

Remedies and limitations

Service credits are the standard remedy, but their enforceability under Romanian law depends on clear drafting. Credits framed as a pre-estimate of loss (rather than a punitive penalty) are more resilient to judicial reduction.

Escalation matrix and penalties

Beyond credits, include an escalation matrix that maps severity levels to response and resolution times. Tier 1 (service unavailable) should trigger a response within one hour and an update every two hours until resolution. From what I see in practice, the most successful SaaS agreements tie escalation to named personnel on both sides, rather than to generic support queues.

Sample clause, buyer-lean: “If Availability falls below 99.9% for any two consecutive calendar months, the Customer may terminate the affected Service Order on 15 days’ written notice and receive a pro-rata refund of prepaid fees.”

Sample clause, vendor-lean: “Service Credits shall be the Customer’s sole and exclusive remedy for any failure to meet the SLA. Credits shall not exceed 15% of the monthly fee for the affected Service.”

Data Protection and Cross-Border Transfers Under GDPR and Romanian DPA Rules

Data protection is where Romanian data protection SaaS obligations become most granular. The GDPR (Regulation (EU) 2016/679) applies directly, but the Romanian National Supervisory Authority, the ANSPDCP, has issued guidance that adds practical layers. In my view, this section of the contract receives more red-lines during negotiation than any other.

DPA essentials

Article 28 of the GDPR mandates a binding contract between the controller and processor. The Data Processing Addendum should, at a minimum, cover:

• Subject matter and duration of processing, tied to the SaaS subscription term.
• Nature and purpose of processing, be specific (e.g., “hosting and processing Customer’s employee HR data for the purpose of payroll administration”).
• Types of personal data and categories of data subjects, avoid catch-all phrases; enumerate the data fields and subject groups.
• Controller instructions, the DPA should make clear that the processor acts only on documented instructions from the controller, and must inform the controller if an instruction infringes GDPR (Article 28(3)).
• Sub-processor obligations, Article 28(2) requires either specific or general written authorisation. In practice, I recommend buyers insist on a current sub-processor list as an annex, a notification mechanism for new sub-processors, and a reasonable objection window (typically 30 days).

Cross-border transfer options

When personal data leaves the European Economic Area, the transfer must rely on a lawful mechanism. The primary options under GDPR Chapter V are:

• Adequacy decisions, transfers to countries the European Commission has found to provide adequate protection require no further safeguards.
• Standard Contractual Clauses (SCCs), remain the most common mechanism. The European Data Protection Board (EDPB) has published guidance on supplementary measures that may be required alongside SCCs following the Schrems II judgment.
• Binding Corporate Rules (BCRs), suitable where the vendor transfers data within its own corporate group and has obtained BCR approval from a lead supervisory authority.

For Romanian customers, I advise mapping every sub-processor’s location and confirming which transfer mechanism applies. The ANSPDCP has supervisory authority over controllers and processors established in Romania, and has the power to suspend cross-border transfers if safeguards are insufficient.

Breach notification and cooperation

Under Article 33 of the GDPR, the controller must notify the competent supervisory authority of a personal data breach within 72 hours of becoming aware of it. For SaaS agreements, the critical contractual point is: how quickly must the processor notify the controller? The GDPR requires notification “without undue delay” (Article 33(2)). In practice, I recommend that the DPA set a concrete time limit, 24 hours is increasingly common in Romanian SaaS deals, to give the controller sufficient time to assess the breach and, if necessary, notify the ANSPDCP within the 72-hour window.

Sample clause, buyer-lean: “The Processor shall notify the Controller of any Personal Data Breach within 24 hours of becoming aware of it, providing sufficient detail to enable the Controller to fulfil its obligations under Articles 33 and 34 of the GDPR.”

Sample clause, vendor-lean: “The Processor shall notify the Controller of a confirmed Personal Data Breach without undue delay and in any event within 48 hours, providing such information as is then reasonably available.”

Security Obligations, Audits and Vendor Protections

Security clauses translate regulatory requirements into operational commitments. The GDPR’s Article 32 requires both controllers and processors to implement “appropriate technical and organisational measures” (TOMs), but what counts as “appropriate” is context-dependent and negotiable.

Acceptable audit scope and process

Buyers have a right under Article 28(3)(h) of the GDPR to conduct audits or inspections. The negotiation challenge is balancing this right against the vendor’s legitimate interest in protecting its intellectual property and serving other customers. In my experience, the following framework works well:

• Frequency: one audit per 12-month period, with additional audits permitted following a security incident or material breach.
• Scope: limited to the systems, processes, and data centres relevant to the customer’s data, not the vendor’s entire infrastructure.
• Confidentiality: auditors must be bound by NDA obligations at least as restrictive as those in the main agreement.
• Substitution right: vendors may satisfy audit requests by providing current SOC 2 Type II or ISO 27001 audit reports, unless the customer has a specific, documented concern.

Security SLAs and incident response

Beyond general TOMs, specify encryption standards (AES-256 at rest, TLS 1.2+ in transit), backup frequency and retention, vulnerability scanning cadence, and penetration testing obligations. The contract should require the vendor to maintain and share an incident response plan, and to conduct post-incident reviews with the customer.

Certifications to request

While no Romanian law mandates specific certifications for SaaS vendors, requesting ISO/IEC 27001 certification and SOC 2 Type II reports has become market standard. These certifications reduce audit burden and provide independent assurance. If the vendor does not hold them, negotiate a roadmap with a commitment date, or require enhanced audit rights as a compensating control.

Sample audit clause, balanced: “The Customer may, at its own cost, audit the Vendor’s compliance with this Agreement and applicable data protection law once per calendar year, on 30 days’ written notice. The Vendor may satisfy this right by providing a current SOC 2 Type II report and ISO 27001 certificate, unless the Customer demonstrates a specific, documented security concern requiring on-site inspection.”

IP, Licensing and Escrow Considerations

Intellectual property allocation in a SaaS contract Romania deal should be unambiguous. The default under Romanian copyright law (Law No. 8/1996 on Copyright and Neighbouring Rights, as amended) is that the creator retains IP unless assigned in writing.

Data ownership vs metadata

Customer data uploaded to the platform belongs to the customer. The contract should confirm this explicitly and restrict the vendor from using customer data for any purpose beyond service delivery, including training machine learning models, benchmarking, or analytics, unless separately and specifically authorised. Metadata and aggregated, anonymised usage data may be retained by the vendor, but the scope should be defined and limited.

Escrow triggers and mechanics

Can a Romanian buyer force source code escrow? There is no statutory obligation, but escrow is a legitimate and enforceable contractual mechanism under the Civil Code’s freedom of contract provisions. Escrow clauses should define clear trigger events, vendor insolvency, failure to maintain the service for a defined period, or material unremedied breach, and specify the escrow agent, deposit frequency, and permitted use of escrowed materials. From what I see in practice, escrow is most commonly negotiated for mission-critical systems where the buyer has limited alternative suppliers.

Liability, Indemnities and Insurance

Liability clauses in SaaS contracts operating under Romanian law must navigate the Civil Code’s provisions on contractual liability (Articles 1350–1376) and the general principle that limitation of liability clauses are enforceable, provided they do not exclude liability for intentional fault (dol) or gross negligence (culpă gravă).

Limitation of liability drafting

The standard market structure is an aggregate cap expressed as a multiple of fees paid or payable over a defined period. My advice to clients is to negotiate carve-outs carefully, certain heads of liability should sit outside the general cap.

Insurance minimums

Require the vendor to maintain professional indemnity insurance and cyber liability insurance, with minimum coverage levels proportionate to the contract value and the sensitivity of the data processed. I typically recommend minimum coverage of EUR 1–2 million for each policy, with the buyer named as an additional insured or loss payee where the insurer permits.

Pricing, Termination and Exit Assistance

SaaS exit assistance is one of the most neglected areas in contract negotiation, yet it becomes the most important clause when the relationship ends. Whether termination is for cause or for convenience, the buyer needs a guaranteed transition pathway.

Exit assistance SLA

Define an exit assistance period (typically 3–6 months from the effective date of termination) during which the vendor continues to provide the service and cooperates with data migration. Specify the format for data export, CSV, JSON, API-based extraction, or database dump, and require the vendor to support reasonable migration testing. Price exit assistance separately or include it as a contract entitlement.

Data handover checklist

• Export of all customer data in the agreed format within 30 days of termination.
• Written certification of data deletion from vendor systems (including backups) within 90 days, unless retention is required by law.
• Return or destruction of any confidential information exchanged during the term.
• Cooperation with the replacement vendor during the transition period, subject to reasonable confidentiality protections.

Sample clause, buyer-lean: “Upon termination or expiry, the Vendor shall provide Exit Assistance Services for a period of six months at no additional charge. During this period, the Vendor shall export all Customer Data in [CSV/JSON/API] format and cooperate with any replacement service provider designated by the Customer.”

Sample clause, vendor-lean: “Exit Assistance Services shall be available for up to three months following termination, at the Vendor’s then-current professional services rates. Data export shall be limited to the formats supported by the platform at the date of termination.”

Dispute Resolution and Enforcement

Choosing the right dispute resolution mechanism is critical for SaaS contracts with a Romanian nexus. Romanian courts have jurisdiction over contracts governed by Romanian law, but parties are free to agree on arbitration or foreign jurisdiction, subject to certain consumer protection and public policy limits.

Enforceability considerations and interim relief

For cross-border deals, I often recommend arbitration under the rules of the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania, with Bucharest as the seat. Romanian courts readily enforce arbitral awards under the New York Convention, making arbitration a practical choice for foreign vendors concerned about local court proceedings. For urgent matters, such as injunctions to prevent data destruction or IP misuse, the contract should preserve each party’s right to seek interim relief from competent courts regardless of the arbitration clause.

Sample clause, balanced: “This Agreement shall be governed by and construed in accordance with the laws of Romania. Any dispute arising out of or in connection with this Agreement shall be settled by arbitration administered by [the Court of International Commercial Arbitration attached to the CCIR], in accordance with its rules. The seat of arbitration shall be Bucharest. Nothing in this clause shall prevent either party from seeking interim or injunctive relief from a court of competent jurisdiction.”

Conclusion: Your SaaS Contract Negotiation Playbook

To successfully negotiate a SaaS agreement under Romanian law, treat the contract as six interconnected negotiations: scope, SLAs, data protection, security, liability, and exit. Each requires Romania-specific drafting to align with the Civil Code’s mandatory rules, GDPR processor obligations, and ANSPDCP expectations. In my practice, the contracts that work best are those where both sides invest in a structured term sheet before drafting, identify their non-negotiables early, and use sample clause language as a starting point rather than an end point.

If you are entering a SaaS negotiation with a Romanian dimension, whether as buyer or vendor, I recommend engaging specialist technology counsel early, the cost of fixing a poorly drafted SaaS contract far exceeds the cost of negotiating it properly from the start. You can find technology law specialists for Romania through the GLE lawyer directory.

Sources

1. EU General Data Protection Regulation (GDPR), Regulation (EU) 2016/679
2. European Data Protection Board (EDPB), Guidance and Opinions
3. ANSPDCP, Romanian National Supervisory Authority for Personal Data Processing
4. Legislatia.just.ro, Romanian Official Legislation Portal
5. Monitorul Oficial al României, Official Gazette
6. University of Bucharest, Faculty of Law