As the IT Procurement & Sourcing Summit UK 2026 approaches, in which Aurele IT will participate in November 2026, we have prepared a practical guide addressing one of the practices of major US software vendors that regularly concerns our clients: changes imposed during the contract term that result in reduced usage rights or increased costs.
These changes typically include:
- Changes to product bundles: the vendor imposes new combinations of products, requiring customers to pay for additional software or services simply to retain access to what they already use;
- Removal of features: the vendor removes a feature previously included in the solution and makes it available as a separately paid option.
Effective negotiation of a SaaS contract should therefore protect not only today’s pricing, but also tomorrow’s usage rights and costs.
The first line of defence lies in the contract negotiation itself. Where adequate contractual protections are absent, certain legal remedies and negotiation levers may still be available, including potential recourse to the courts.
The importance of the governing law
IT projects often have an international dimension. Many major software vendors are US-based and subject their contracts to California law, where they are headquartered. However, some US vendors contract with European customers through European subsidiaries, under the laws of a European jurisdiction.
The governing law chosen by the parties largely determines the legal protections available against changes imposed during the contract term.
Under French law, a contract may only be amended by mutual agreement, pursuant to Article 1193 of the French Civil Code, unless the contract expressly authorises the vendor to modify certain provisions unilaterally.
The risks of incorporating online contractual documents by reference
This is frequently the case where the contract refers to online documents covering specific terms (SLAs, licensing metrics, etc.), which the vendor may amend unilaterally at any time.
Under French law, Article 1119, paragraph 1, of the Civil Code provides:
“Standard terms and conditions invoked by one party have effect against the other party only if they have been brought to the latter’s attention and accepted by that party.”
These documents are therefore binding on the customer if they have been brought to its attention and accepted.
To protect against unilateral changes, customers should seek to negotiate the following safeguards:
- Freeze the applicable versions of key contractual documents by attaching dated versions to the contract;
- Restrict unilateral amendment rights concerning material terms (bundles, pricing, etc.): require a substantial notice period and give the customer the right to reject the proposed amendment or, failing that, terminate the contract without penalty and obtain a refund of prepaid amounts.
Specific contractual best practices
To protect against changes to product bundles, it is also advisable to:
- Define the product by reference to a detailed list of components and usage rights attached to the order form, rather than relying solely on its commercial product name;
- Negotiate a product continuity commitment: preserve the right to renew the existing product SKU during the contract term, with a substantial advance notice period before any discontinuation of the product.
To protect against the removal of features, it is also advisable to:
- Include a commitment to maintain existing functionality, capacities and usage limits (such as storage allowances) throughout the contract term;
- Anticipate the possibility of an included feature being moved to a separately priced module, by securing continued access at no additional cost until the end of the contract term.
The importance of contract renewal
Upon renewal, the vendor generally regains its freedom to set new commercial terms, unless renewal conditions were capped or otherwise restricted during the initial contract negotiations.
It is essential to negotiate in advance a cap on increases in the total contract cost at constant scope and usage, rather than merely capping unit prices. A unit-price cap can easily be circumvented through changes to product bundles or licensing metrics.
Legal remedies available in the absence of contractual protections
Standard-form contracts
Where a contract has not been negotiated and qualifies as a standard-form contract (contrat d’adhésion) under French law, the customer may challenge any clause creating a significant imbalance between the parties’ rights and obligations and ask the court to declare it unenforceable.
The following conditions must be met:
- The clause or clauses must have been predetermined and non-negotiable;
- They must create a significant imbalance between the parties’ respective rights and obligations.
See our article: Standard-form contracts and significant imbalance under French law.
Protections under the EU Data Act
The EU Data Act facilitates switching away from cloud and SaaS services falling within its scope. These provisions may apply even where the contract is governed by US law, provided the service is supplied to a customer in the European Union.
Under the Data Act, switching charges are being progressively phased out. Until 11 January 2027, such charges may still be imposed, but only to the extent of the costs directly attributable to the switching process. From 12 January 2027, switching charges will be prohibited. These charges should be distinguished from any early termination fees, which are subject to a different legal framework.
See our article: EU Data Act: What It Means for SaaS Providers and How to Get Ready.
However, pursuing legal remedies can be lengthy, costly and uncertain. The priority should therefore be to incorporate these protections into your upcoming negotiations, whether for new software acquisitions or contract renewals.
AURELE IT supports businesses in negotiating SaaS contracts with major software vendors, helping them secure their IT projects.