Uptime commitments and service credits

An uptime commitment is a number the customer will hold the supplier to, and most numbers in SaaS terms were chosen by looking at a competitor's website rather than the supplier's monitoring. The clauses have to start from what the service delivers, define availability so that it is measured the same way by both sides, exclude what the supplier does not control, provide credits that compensate without bankrupting, make the credits the customer's remedy short of persistent failure, and sit inside the liability cap. I draft those clauses, as a schedule to a set of SaaS terms or as a replacement for the ones in yours, for a fixed fee of £995, delivered in five working days.

Who this is for

SaaS businesses in England and Wales that publish or negotiate an availability commitment for their product, and want the uptime and credit clauses drafted around their own performance data and their own infrastructure.

What matters in uptime and service credit clauses

Choosing the number

The commitment should be a percentage per calendar month that the supplier's monitoring shows it has met over the past year with room to spare, because each additional nine cuts the permitted downtime from hours to minutes. The clauses should state the number for each service or tier, say whether it applies to all customers or to those on plans that include it, and leave the supplier free to publish a higher target as an aspiration without committing to it.

Defining availability and downtime

Availability should be defined as the percentage of minutes in the month during which the core functions of the service are accessible at the supplier's edge, measured by the supplier's monitoring tools, with downtime counted from the time the supplier's monitoring detects the outage or the customer reports it, whichever is earlier, and ending when service is restored. Degraded performance, slow responses and the failure of a single feature should be dealt with expressly: either excluded, or counted at a stated fraction.

The exclusions that keep the commitment achievable

Scheduled maintenance within published windows and with notice, emergency maintenance to address security, outages caused by the customer's systems, networks, credentials or configuration, failures of third-party services and networks the supplier does not control, attacks and other events outside the supplier's reasonable control, suspension permitted by the terms, and beta or preview features should not count as downtime. An exclusion list is what turns a commitment the marketing team wrote into one the engineers can keep.

Credit bands, the cap and how credits are paid

Credits should rise in bands as monthly availability falls below the commitment, expressed as a percentage of the monthly fee for the affected service, capped at a stated percentage of that fee, applied against the next invoice rather than paid in cash, and forfeited if the subscription ends. A single band that pays the whole month's fee for one bad hour is the credit clause suppliers regret; bands calibrated to the impact are the ones that survive.

Claims, evidence and the process

The customer should claim credits in writing within a stated period after the month in question, identifying the outage, and the supplier's monitoring records should be the evidence of availability absent manifest error, with the supplier reporting monthly availability on request. The customer must be up to date with payments to claim. A claim process is not a trick; it is how both sides know which month is in dispute and what the number was.

Sole remedy, the termination threshold and the liability cap

The clauses should say that credits are the customer's sole and exclusive remedy for failure to meet the commitment, which is enforceable against a business customer where reasonable under section 3 of the Unfair Contract Terms Act 1977, and should give the customer a right to terminate and recover prepaid fees for the remaining term where availability falls below a stated lower threshold in a stated number of months, because a defined exit is what makes the sole remedy reasonable. Credits should count towards the liability cap in the main terms, and the clauses should say so, with the supplier's obligation to provide the service with reasonable care and skill under section 13 of the Supply of Goods and Services Act 1982 given content by the commitment rather than sitting alongside it.

What it costs

SaaS terms of service, £995. Your standard customer-facing terms. Five working days.

Buying online forms the engagement on payment. The scope is what the saas and technology contracts page describes, you accept the Terms of Service at checkout, and I email you within four working hours to get started. If you would rather ask something first, email me.

What you get

• A bespoke contract drafted for how your product is sold, delivered and supported
• Service levels you can meet, with remedies that are proportionate rather than aspirational
• A liability position that is defensible and will survive enterprise procurement
• IP and data provisions that fit together rather than contradicting each other
• A commercial note on where you will get pushback and what is worth conceding
• One round of amendments

What is not included

• Negotiating individual enterprise deals, which I quote separately
• Advice on the law of jurisdictions outside England and Wales
• Technical security certification or audit
• Regulatory advice for regulated sectors such as financial services or health

Questions I am often asked

Our monitoring shows ninety-nine point nine five per cent over the last year. What should we commit to?

Less than that, with a margin for the months the past year did not contain. The clauses state a number your data supports and let you advertise the higher figure as a target.

A customer wants credits paid in cash rather than against invoices. Should we agree?

Credits against future invoices are the norm and keep the cash in the business. Enterprise customers sometimes negotiate a cash refund at termination for accrued credits, which the clauses can provide for as an exception.

Does a sole remedy clause stop the customer terminating?

Not on its own, and it should not try to. A termination right for persistent failure, at a defined threshold, is what makes the sole remedy clause enforceable. The clauses include it.

Related guidance and services

• SaaS and technology contracts, £995, the service this page describes
• Contract review, £495
• Data protection agreements and privacy terms, £795
• Service level agreement for a SaaS product
• Reviewing a service level agreement and service credits

This page is general guidance for businesses in England and Wales, not advice on your own circumstances. Last reviewed: September 2026. Email geoffrey@caesar.co.uk.