As Thanksgiving approaches, we want to share our gratitude - for the opportunity to train hundreds of students this year. David Tollen's courses about technology contracts ranged from Tech Contracts Master Classes and webinars, to in-house programs, to LinkedIn Live conversations. We hope you will check out our next (free)... read more →
Nov
21
Nov
14
David Tollen's courses about technology contracts offer practical knowledge, in a convenient format, for businesspeople and lawyers. And, they are a great way to earn continuing legal education (CLE) credit. Remaining 2022 trainings: In our one hour webinar on Nov. 17, David Tollen demystifies the often-misunderstood role of professional services... read more →
Nov
07
[Missed the Oct./Nov. 2022 Master Class series? Fear not - you can enroll in our January 2023 series here: https://www.techcontracts.com/product/tech-contracts-master-class-jan-2023/. 2 hours CA CLE available per class, 8 hours for the series]. Registration is still available for our four-part Tech Contracts Master Class™ series (Oct. 26 - Nov. 16) and... read more →
Nov
03
Here are ten issues to consider when addressing data in IT contracts. This issue-spotter serves both customers and providers, though generally the former benefit more from data protection. Type of Deal: If your contract involves cloud services (SaaS, PaaS, etc.), the provider will hold customer data. So data terms become... read more →
Oct
28
[Missed the Oct./Nov. 2022 Master Class series? Fear not - you can enroll in our January 2023 series here: https://www.techcontracts.com/product/tech-contracts-master-class-jan-2023/. 2 hours CA CLE available per class, 8 hours for the series]. We know our webinars and Master Classes on tech contracting issues - all presented by industry expert David... read more →
Oct
23
Is your head spinning trying to keep up with headlines about personal data? You are in good company. Here, we take on – at a high level – recent events impacting cross-border transfers of personal data—from the EU or UK to the U.S. Re the EU, there’s the U.S. Data... read more →
Oct
20
[Missed the Oct./Nov. 2022 Master Class series? Fear not - you can enroll in our January 2023 series here: https://www.techcontracts.com/product/tech-contracts-master-class-jan-2023/. 2 hours CA CLE available per class, 8 hours for the series]. "Excellent course breaking down the fundamentals of the IT contract's various complex elements with real life applications." (Tech... read more →
Oct
13
[Missed the Oct./Nov. 2022 Master Class series? Fear not - you can enroll in our January 2023 series here: https://www.techcontracts.com/product/tech-contracts-master-class-jan-2023/. 2 hours CA CLE available per class, 8 hours for the series]. "David's experience representing both sides is invaluable." We love this feedback from a previous student of our webinar,... read more →
Oct
11
Contracting parties often debate whether the limit of liability should apply to indemnity obligations. IT contracts probably answer "no" more often than "yes." But you can support either answer with good arguments. The Argument Against Limiting Indemnity Liability The indemnity is unusual. It seems to address liability, but it really... read more →
Oct
06
Register now for our next Tech Contracts Master Class™ series (October 26- November 16), and our webinar on November 17, IT Professional Services Contracts. All are taught by industry expert David Tollen. These are our last public programs for 2022 - we hope you will join us. Tech Contracts Master... read more →
Sep
12
Does the European Union (“EU”)’s General Data Protection Regulation (“GDPR”) apply to your contracts’ transfers of Personal Data from the European Economic Area (“EEA”) to a country (such as the United States) that the EU deems to lack “adequate” safeguards? If so, do you rely on contract terms to permit... read more →
Sep
08
Our Sept./Oct. Tech Contracts Master Class series, presented by David Tollen, is sold out. Seats are still available for the Oct./Nov. series (our last of 2022). Don't miss your chance - more information and registration is available here: https://www.techcontracts.com/tech-contracts-master-class-registration/. Additionally, we have webinars: This month, our topical webinar is a... read more →
Aug
29
Mark Lemley of Stanford Law School recently pointed out a problem with clickwraps and other take-it-or-leave-it form contracts. I've discussed the same issue in many of our trainings and in my class at UC Berkeley. Clickwraps generally don't involve any choice for the customer. So they don't look a lot... read more →
Aug
17
Students and trainees often ask me how long a warranty of function should last. And contract negotiators regularly debate it. Someone should do a thorough survey, but in the absence of good data, I'll offer my experience. Duration I don't often see software warranties shorter than ninety days. Thirty days... read more →
Apr
07
Last week, David Tollen taught a two-hour workshop for the Association of Corporate Counsel (ACC). The ACC Mountain West Chapter held its annual Tech Law Symposium in Salt Lake City. And David taught Key Terms in Cloud and Software Contracts: Intellectual Property, Commercial Terms, and Liability. ... read more →
Mar
30
We just discussed privacy terms in tech contracts, in a free short (28 min.) audio/visual program on LinkedIn. Topics covered included: Terms re moving personal data to the U.S. under GDPR (after Schrems II) and under the UK's post-Brexit rules (including through contract attachments called "IDTAs") Use of standard contractual... read more →
Mar
29
Do the UK General Data Protection Regulation and Data Protection Act govern your transfers of personal data to the United States? (Or do they apply to your personal data transfers to another country without “adequate” safeguards?) The UK has launched new mandatory contract terms for those using contracts to legitimize... read more →
Mar
07
We're proud to announce that David Tollen was recently cited and relied upon as an expert witness in a Massachusetts appellate decision. The case was Akamai v. Commissioner of Revenue, and David testified for Akamai, the prevailing (winning) party. Akamai provides the world's largest content delivery system: a backbone component... read more →
Mar
04
Tech Contracts Academy will accept no Russian Federation customers until Ukraine is free again. The same goes for my law firm, Sycamore Legal. For our Russian friends who don't support this assault on democracy and freedom -- and on the peace that... read more →
Jan
05
Happy New Year! As you plan to expand your tech contracting knowledge in 2022, consider enrolling in Tech Contracts Academy's trainings - which include live Q&A with David Tollen: Tech Contracts Master Classes™: The next series of four on-line Tech Contracts Master Classes launches January 20th. If you're on the... read more →
Nov
08
Everyone should know about a new movement: open source contracts. Products and services would be sold under terms posted online by uninvolved third parties -- and widely accepted by the community of customers and providers. The parties could avoid or reduce negotiation and drafting by adopting those contracts. Like open... read more →
Nov
03
[We updated this post in November of 2022. Click here for the new version.] Here are ten issues to consider when addressing data in IT contracts. This issue-spotter serves both customers and providers, though generally the former benefit more from data protection. Type of Deal: If your contract involves cloud... read more →
Oct
25
We recent discussed data issues in IT contracts, on LinkedIn Live. Click the image below to see the video -- about 20 minutes.
Oct
07
Here are two vital tips for software distribution contracts. They're for any software provider retaining another company as a distributor. That includes value-added reseller (VAR) and original equipment manufacturer (OEM) deals. If you get a percentage of distributor revenues, set a minimum royalty in dollars. Imagine you get a 20%... read more →
Sep
30
IT providers often add their copyright (DMCA) and privacy policies to their contracts. They incorporate those policies by reference or just promise to comply. That's a mistake. If you're the provider, you gain nothing by incorporating your policies. In fact, you pay a price. Privacy Policies A privacy policy explains... read more →
Sep
28
We are excited to launch our inaugural Tech Contracts Master Class™ series on October 5. Join us! And check out our webinars; next one is October 20. What are the Master Classes? What do they cover? These four online classes are a comprehensive series designed to cover all the essential... read more →
Sep
24
Don't confuse liquidated damages and early termination fees. Liquidated damages compensate a party for the other's breach of contract. They work like any other damages, except the parties agree on the amount in advance. (The parties liquidate the damages so they won't have to fight about the amount later, like... read more →
Sep
23
We recently discussed typical IP issues in tech contracts, live on LinkedIn. If you have a LinkedIn account, you can watch the program, which lasts just 25 minutes ... and costs nothing. Just click the image below. David Tollen discusses IP issues in tech contracts,... read more →
Sep
13
Some companies refuse to accept California law for their deals. In most IT contracts, that's a mistake. California Employment and Consumer Protection Laws These anti-California companies worry that the state has business-unfriendly laws. But California's arguably unusual laws relate mostly to employee and consumer rights. B2B IT contracts don't govern... read more →
Aug
25
This fall is the time to expand your information technology contracting expertise. Don’t wait! Join us. Tech Contracts Academy® distance learning opportunities include Tech Contracts Master Classes™ (a 7 ½ hour program covering all clauses typically found in IT contracts, in four classes), one hour+ topical webinars, and customizable in-house... read more →
Aug
19
Some contract drafters define material breach in their termination provisions. They find “material” too vague on its own. That’s a mistake because defining the concept can limit your rights in ways you’ll eventually find unacceptable. And “material breach” is not vague, believe it or not. A contracting party needs the... read more →
Aug
13
In service contracts, termination for convenience clauses often call for a long notice period. The customer (usually) can terminate for any reason, but it has to give 90 days' notice -- or maybe 180 days' or more. In many cases, the customer also has to pay an early termination fee.... read more →
Aug
11
We’re excited to announce our new Tech Contracts Master Classes™. Tech Contracts Master Classes™ provide an in-depth yet unusually concise, accessible review of all the clauses typically found in information technology contracts. The Master Classes program is broken into four sessions taught by your instructor, David W. Tollen, with live Q&A... read more →
Jul
28
During 2020, we developed terms to address Covid-19: a clause that lets the customer suspend professional services and provides a procedure to restart. It looks like we're not out of the woods yet (Delta variant, etc.), so those sorts of terms deserve a look. The clause below goes beyond force... read more →
Jun
09
I’m excited to announce the third edition of my book, THE TECH CONTRACTS HANDBOOK. You can buy a paperback or e-book from Amazon and other retailers or direct from ABA Publishing. It’s for both lawyers and businesspeople, including contract managers and procurement staff. (It’s selling fast, but don’t worry if... read more →
Jun
02
In a non-compete clause, one party promises not to compete with the other. In IT contracts, customers sometimes ask their professional services providers for non-compete terms. The service provider promises not to serve the customer's competitors. (Click here for a sample clause from The Tech Contracts Handbook -- and see... read more →
May
03
We're excited to announce that we've posted a complete new library of clauses here at TechContracts.com. ABA Publishing is about to release the 3rd edition of my book, The Tech Contracts Handbook, and the new clauses match those in the new edition. (The prior clause library matched the 2nd edition.)... read more →
Apr
28
“Don’t cross the streams,” says Egon in Ghostbusters (the 1984 original). “It would be bad.” Why? “Try to imagine all life as you know it stopping instantaneously and every molecule in your body exploding at the speed of light.” You could face less extreme consequences if you cross the payment... read more →
Apr
01
We're delighted to announce a new award for our founder's law firm. Worldwide Financial Advisor Awards Magazine just announced Technology Contracts Law Firm of the Year - USA in its Golden Advisor Awards. David Tollen's firm, Sycamore Legal, P.C.. was the winner. Sycamore Legal is based in the San Francisco... read more →
Mar
23
Some intellectual property indemnities exclude claims about IP registered after the contract's effective date. The tech provider argues that it shouldn't be responsible for IP it didn't know about when it created its product -- or at least when it signed the contract. "If we couldn't have known about that... read more →
Mar
15
Cloud services providers often say they can't negotiate their SLAs. All customers get the same SLA, so customizing terms for one customer would require changing procedures used for everyone. That's often true, but customers should test the limits of SLA flexibility. Not all SLA revisions require that the provider change... read more →
Feb
10
Here's a typical grant of rights from a software end-user license agreement (EULA): Provider hereby grants Customer a license to use 30 copies of the Software. Common though that clause may be, it's dysfunctional. On-premise software licenses grant rights under copyright. And the copyright statute does not address a right... read more →
Nov
09
Contracting parties often debate whether the limit of liability should apply to indemnities. But few notice the problem. Even if the contract specifically says the limit applies to an indemnity ... it doesn't. The indemnity obligation remains unlimited. I'm serious. The indemnitor could be in for... read more →
Sep
24
IT providers often argue that they can't negotiate service level agreements (SLAs). They're right in most cases, but with important exceptions. SLAs govern procedures for fixing broken technology, as well as credits for downtime. The provider generally can't modify the procedures and software it uses for that support -- at... read more →
Sep
11
An assignment clause governs whether and when a party can transfer the contract to someone else. Often, it covers what happens in a change of control: whether a party can assign the contract to its buyer if it gets merged into a company or completely bought out. But that doesn't... read more →
Sep
09
Today, we updated one of Tech Contract Academy's key sample contract forms: the Hybrid Cloud Agreement with Professional Services. It's available to you, along with the rest of our forms, at the Contracts Page. This is the first update based on best practices and changes featured in the third edition... read more →
Jul
15
This year, the Rocky Mountain IP Institute is hosting a virtual conference, featuring David as a speaker for two sessions. On Thursday, July 16, David's on-demand session Open Source Software 201: Myths and Realities of OSS Licenses will be released. During this session you will learn: How OSS licenses workOSS... read more →
Jun
16
I'm excited to announce the publication of my new e-book, THE TECH INDEMNITIES POCKET GUIDE: Indemnities in Software and Other IT Contracts for Lawyers and Businesspeople (ABA Publishing 2020 - IP Section). There is nothing on the market like this book. Businesspeople and lawyers argue over indemnities more -- and... read more →
Apr
06
Some courts won't enforce a force majeure clause without specifics. They want to see "hurricane" specifically listed as force majeure if you claim a hurricane excuses performance. So heed the coronavirus' warning and check your standard contracts (and any you're currently negotiating). Do they list "epidemics"? If not, add it.... read more →
Feb
20
Contract drafters regularly confuse cloud services with traditional products and services. They approach software-as-a-service (aka SaaS) and other cloud services as if they were either software products or old-style services, like professional services. That leads to perplexing negotiations and contracts full of errors. Much of the trouble stems from the... read more →
Dec
23
On January 27 and 28 of 2020, David Tollen will be speaking at the Advanced Licensing Agreements 2020 conference in San Francisco, from the Practicing Law Institute (PLI). It's a two-day program on intellectual property licensing and related legal issues, and CLE will be included. David's session is "Cloud Computing... read more →
Dec
10
The one hour webinar David Tollen presented on December 3rd is now available online. Click here to access it through our host, The Western Banker's Association. The presentation addresses how banks and other tech buyers can get the best terms for cloud computing contracts. It covers key issues at stake... read more →
Aug
29
On Thursday September 5th, David Tollen will participate in a webinar entitled Back to the Future, Predictions for technology and negotiation in 2030 and beyond. The workshop begins at 11:00 a.m. EDT and lasts one hour. This is an "Ask the Expert" program from IACCM: The International Association for Contract... read more →
Jul
30
On August 26, David Tollen will be speaking at the 2019 Education Summit & Regulatory Compliance Conference -- a Western Bankers Association (WBA) event. David is giving the Technology & Ops presentation. His topic is "Cloud Computing Contracts: How Banks Can Get the Best Terms." The conference is in Huntington... read more →
Jul
23
Most SaaS vendors rely on automatic renewal terms -- and love them. If the customer doesn't think to cancel shortly before the term ends, the contract automatically renews. But the U.S. states have begun to clamp down on auto-renewal in B2C contracts -- in agreements with consumers. South Dakota passed... read more →
Jul
18
By Jennifer L. Sheridan, Esq. Use Model Clauses (or EU's standard contractual clauses) for data exporter-data importer transactions, which have been amended to be GDPR compliant As discussed in the last blog post, EU personal data may not be exported to any non-EU country (any non-European Economic Area or “EEA” countries)... read more →
Jul
09
Last month, the U.S. Department of State started requiring that visa applicants list their social media handles. Would-be immigrants and visitors to the U.S. don't have to provide passwords, but they do have to provide their "identifiers" on Facebook, LinkedIn, Twitter, and other networks. The new requirement apparently drew little... read more →
Jun
25
The Tech Contracts Handbook warns website operators not to rely on browsewraps: contracts posted online without a click-to-agree requirement. In fact, the book warns against any contract executed or even amended without without clear consent from the customer, like an "I agree" click. (See TCH 2nd Ed. Ch. III.S and... read more →
Jun
17
If you're feeling a creeping sense of panic about drafting compliant privacy terms, relax. You're still sane, and you're in good company. We are, in fact, seeing continuous change in state privacy laws, creating overlapping and potentially conflicting obligations. You might be tempted just to add the following to all... read more →
Jun
11
By Jennifer L. Sheridan, Esq. My last post on Data Privacy discussed the best practice of adopting a US and EU law compliant privacy policy in the context of BizConnect, a hypothetical startup software company. This post examines self-certifying as compliant with the U.S. Privacy Shield. What is the Privacy... read more →
Jun
04
The feedback license appears in many tech contracts. It usually gives the vendor a broad, perpetual license to any "feedback" from the customer's staff: any suggestion about the vendor's products or services. Sometimes the clause goes further, assigning ownership of feedback to the vendor. (Click here if you want a... read more →
May
29
As most readers know, the California Consumer Privacy Act (CCPA) is poised to change privacy compliance all over the world. Large businesses will face a new set of rules if they hold information belonging to California consumers. One of the open questions has been whether protected “consumers” include employees. In... read more →
May
07
There is no universally accepted industry standard that defines key terms like “cloud computing,” “software-as-a-service,” “platform-as-as-service,” or “infrastructure-as-a-service.” Experts disagree on these terms’ definitions, and that points to the need to define common terms within contracts. Here are definitions used in The Tech Contracts Handbook, which provide a good starting... read more →
Apr
02
Recently, I sat down for a “Thought Leader” discussion on the Coming to the Table video podcast. It’s a program on the future of negotiation, hosted by Keld Jensen and the Thunderbird School of Global Management, at Arizona State University. Mr. Jensen is himself a thought leader and author, as well as... read more →
Mar
22
Some businesspeople and lawyers debate whether proposed contract terms would be fair. I think that’s an unhelpful view of contracts, for two reasons. First, it’s hard or even impossible to define “fair” in contract negotiations. Second, a focus on what’s fair may lead you to reject deals that make economic... read more →
Feb
26
Colin Levy just posted an interview with our founder, David Tollen. Colin is corporate counsel at Salary.com, and he runs a great blog about legal innovation and legal technology, at ColinSLevy.com. Please click here to read the interview!
Feb
11
We are very proud to announce that our founder's law firm has won another award! Sycamore Legal P.C., was awarded Most Innovative Information Technology Law Firm 2019 - California, by Acquisition INTL Magazine. Here's what AI magazine says about the award: "Our 2019 Global Excellence recipients are handpicked by AI magazine based... read more →
Dec
11
We are proud to announce that David Tollen, our founder and trainer, will soon begin teaching at the UC Berkeley School of Law. Starting in January of 2019, David will teach a course for both J.D. and Ll.M. candidates, called Tech Industry Contracts: Drafting and Negotiating Software Licenses, Cloud Computing... read more →
Dec
02
In contracts about complex services, the hardest terms to draft appear in statements of work. SoW’s for large projects demand long lists of duties from the vendor. And usually they’re interwoven with supporting tasks from the customer and its other suppliers, along with countless contingencies, assumptions, and exceptions. Putting all... read more →
Oct
14
David Tollen will present a workshop at the IACCM Americas conference at the end of this month, in St. Petersburg, Florida. The conference is October 29 to 31, and David will be speaking on the first day. His topic is Simplifying IT Contract Negotiations. The workshop outlines the clauses that most often... read more →
Sep
28
By David W. Tollen Your client or colleagues wants “friendly” contract terms, to avoid offending the other side. For instance, you’re the vendor, and you have two pretty tough-sounding clauses in your standard terms. "Customer will be responsible and liable to Vendor for any misuse of the System by Customer’s... read more →
Sep
14
By David W. Tollen Many tech contracts require that one or both parties “comply with applicable law.” Or they require compliance with specific laws, like “all privacy laws and other laws governing the handling of Project Data.” Should you make that promise? What's Wrong with Promising to Obey Applicable Law? You... read more →
Sep
07
By David W. Tollen Tech industry professionals use “intellectual property” to describe two different creatures. They also use “IP lawyer” for a broad list of professionals with little in common. Few recognize the many meanings of "intellectual property", so the term creates a lot of confusion -- and screws up lots... read more →
Aug
27
We are excited to announce that David Tollen's law firm has won another award. Sycamore Legal, P.C. won Technology Sector Contracts Law Firm of the Year in California, for 2018 -- from Global Law Experts. This is David's and Sycamore's fourth award in the last two years. Sycamore Legal won the... read more →
Aug
10
By Jennifer L. Sheridan, Esq. In the last post, I introduced BizConnect, a hypothetical startup software company concerned about privacy law compliance. BizConnect is in discussion with several prospective EU customers who have been talking about this new law, the General Data Protection Regulation or GDPR, which became effective on May... read more →
Jul
29
By Jennifer L. Sheridan, Esq. Last month, Facebook’s founder and CEO Mark Zuckerberg testified before the U.S. Senate and House about his company’s data privacy practices. A whistleblower had revealed that over 80 millions users’ personal information had been sold to Cambridge Analytica, a political consulting firm, and other third... read more →
Jul
19
By David W. Tollen Last week, I taught a technology contracts masterclass in Kampala, in partnership with the largest bank in Uganda, Stanbic Bank. It was an amazing experience. We had a great audience of 200+ attendees, including lawyers, accountants, and entrepreneurs, and they were very engaged. Thank you so... read more →
Jul
11
Today, David Tollen was interviewed on Ugandan television about his upcoming training program in Kampala -- and about technology agreements in Africa. (This YouTube version seems to pause for a moment after the program's logo comes up, but it will start again after a few seconds.) We're honored to be... read more →
Jul
09
By David W. Tollen Problem Your contract’s force majeure clause says hurricanes, earthquakes, wars, and other disasters excuse the vendor's service obligations. But the contract also has disaster recovery and business continuity terms (which I’ll call “DR/BC” terms). The whole point of those terms is that the vendor’s systems will... read more →
Jun
18
By David W. Tollen You're negotiating a contract, and you send your company's standard form agreement. The other party then marks it up -- "redlines" it -- and sends it back. What should you do now? Your instinct may be to accept some changes and reject others, and maybe write... read more →
Jun
08
By David W. Tollen Many tech contracts include terms like the following: "If Customer disputes an invoice in good faith, it may withhold the amount in dispute but shall pay the balance on the date due." That's often followed by duties to negotiate in good faith and to keep performing... read more →
Jun
01
Many software-as-a-service (SaaS) contracts grant a "license" to use the vendor's software. That's a mistake. Licenses are for on-premise software. SaaS is a service, as the name implies, and it doesn't need a license. And if you're the vendor, a license can hurt you. SaaS Customers Don't Copy Software The... read more →
May
25
We're very pleased to announce that our founder, David Tollen, has joined the LegalSifter Board of Advisors. LegalSifter provides cutting-edge artificial intelligence technology that helps lawyers and their clients review contracts. Users upload draft contracts into LegalSifter. From there, the Sifters review the document. Sifters are software agents trained to read... read more →
Apr
10
CIO.com recently published an article by our founder, David Tollen. Please click here.
Mar
23
We are pleased to announce that our founder and his law firm were recently honored with two awards for excellence. David Tollen was named Internet & E-Commerce Lawyer of the Year in California for 2018, by International Advisory Experts. IAE is a global alliance of legal, financial and consulting firms.... read more →
Feb
16
By David W. Tollen This is the fifth in a series of five posts on Open Source in Software Procurement. Click here for the prior post, and click here for the intro, which lists all five topics. Many licensees worry about the security of open source software. Does OSS in vendor... read more →
Feb
02
By David W. Tollen This is the fourth in a series of five posts on Open Source in Software Procurement. Click here for the prior post, and click here for the intro, which lists all five topics. In most cases, the licensee does not need an "open source indemnity." It doesn't need terms... read more →
Jan
30
By David W. Tollen This is the third in a series of five posts on Open Source in Software Procurement. Click here for the prior post, and click here for the intro, which lists all five topics. Fear of open source software leads licensees to draft terms like this: “Vendor warrants... read more →
Jan
26
By David W. Tollen This is the second of five posts in a series called Open Source in Software Procurement. Click here for the first/introductory post. Open source software is software licensed (a) with its source code included and (b) with the right to modify and redistribute. What’s wrong with that?... read more →
Jan
26
Contract drafters rarely understand open source software (OSS). They see it as a threat, so when they're buying software, they try to exclude OSS from their vendors' products. In most cases, the concern is misplaced. Software licensees may have good reason to worry about copyleft software, which is one type of... read more →
Nov
17
We're very pleased to announce that David Tollen's law firm, Sycamore Legal, was awarded Technology Sector Contracts Law Firm of the Year, for California. The awards are presented annually by Global Law Experts, which publishes a magazine and online guide on premiere attorneys around the world. You can see the awards publication... read more →
Oct
20
by Deborah Pulido If you are an internet service provider taking advantage of the Digital Millennium Copyright Act safe harbor, you have until December 31, 2017 to re-register your designated DMCA agent. As David Tollen reported back in 2016, the Library of Congress has changed the rules for designating an... read more →
Jun
12
This is a good article from the ABA's Business Law Today publication: Online Contracts: We May Modify These Terms at Any Time, Right? In short, no, it doesn't reliably work to tell customers or website visitors that you can unilaterally amend their contracts, just by posting a new version. You need notice... read more →
Jun
07
A South Carolina Law Review article cites The Tech Contracts Handbook -- and in fact relies upon it heavily. The article is THE UNDERCOVER DETECTIVE LOOKS AT DATA BREACH CONTRACT CLAUSES: WHO SHOULD BE RESPONSIBLE UNDER THE CONTRACT FOR COSTS OF COVER? (67 S.C. L. Rev. 535, Spring 2016). The author... read more →
Apr
26
by David W. Tollen and Nathan Leong You’re a lawyer looking for online software and other tools to run your firm—tools like email, word processing, calendaring, timenotes, legal research, and particularly document management. You stumble across a great suite of tools from a reputable company and sign up. You love... read more →
Apr
20
By Phil Brown and David W. Tollen Lawyers love tradition, but many clients want to communicate with 21st Century tools. Texting, Skyping, SnapChatting: all of these would mystified most lawyers ten years ago. But habits change. The flood of technological “advances” in communication methods brings new threats to attorney-client privilege... read more →
Dec
17
We’ve posted a new contract in the forms library — and it’s available in MS Word (no charge, as always). It's meant to serve as a customer's primary contract for purchasing any and all IT (other than hardware or IaaS): namely, licensed software, software-as-a-service (SaaS), and/or IT professional services. You... read more →
Dec
09
Capterra's IT Management Blog just published an article by David Tollen: 5 Simple Rules for Negotiating Software and IT Contracts. It's a customer-focused articles, addressing five mistakes customers tend to make in their tech contracts. (Sorry vendors! Capterra's blog mainly serves customers.) Please check it out ...
Nov
17
In its ongoing effort to keep us on our toes, the Library of Congress has changed the rules governing the Digital Millennium Copyright Act. In short, if you're already signed up to take advantage of the DMCA safe harbor, you must re-designate your agent online by the end of 2017.... read more →
Nov
15
FYI, The Tech Contracts Handbook is the number-one bestseller on Amazon's Business Purchasing and Buying list! Please check it out! David Tollen, THE TECH CONTRACTS HANDBOOK: Cloud Computing Agreements, Software Licenses, and Other IT Contracts for Lawyers and Businesspeople, 2nd Edition (ABA Publishing, IP Section, 2015)
Oct
24
We've posted a new contract in the forms library -- and it's available to you in MS Word (no charge, as always). The new form is for professional services by a consultant. It's friendly to the consultant, though it does give the company ownership of any IP generated on the... read more →
Oct
14
We've posted a new contract in the forms library -- and it's available to you in MS Word (no charge, as always). The new form is a mobile app terms of service: a "clickwrap" contract, meant to be downloaded with software that goes on a mobile phone or other mobile... read more →
May
25
We've just updated all the clauses and contracts at TechContracts.com to address the Defense of Trade Secrets Act of 2016 (the "DTSA"). That includes the NDA's and the other contracts that include confidentiality clauses at the Contracts page, as well as the confidentiality-related terms in the Clauses library. (On the... read more →
May
05
I’m very pleased to announce the new TechContracts.com. It’s a portal on software licenses, cloud computing agreements, and other information technology contracts. It offers contract negotiators and drafters: Hundreds of Free Clauses: Including all the examples in my book, The Tech Contracts Handbook: Cloud Computing Agreements, Software Licenses, and Other Information Technology Contracts for... read more →
May
01
Lawyerist.com recently interviewed me on cloud computing agreements, and you can listen to the podcast at their site. Lawyerist focuses on the needs of small law firms, but the interview addresses the contracts most small businesses sign with their SaaS and other cloud vendors. In it, I discuss the negotiable... read more →
Feb
02
Hours ago, EU and U.S. negotiators agreed on a new framework for data sharing across the Atlantic. It's called the "EU-US Privacy Shield." Cutting to the chase, we should soon have new procedures American companies can follow to make them kosher recipients of European consumers' private data. If so, European... read more →
Jan
25
I use the table of contents from The Tech Contracts Handbook as an issue-spotter for software licenses, cloud computing agreements, and other IT contracts. I'm posting the table so others can do the same. Simply peruse the topics listed below and ask yourself whether your contract needs a clause addressing... read more →
Dec
15
This article is a report I prepared for one of the parties in litigation outside the United States. I served as what American courts would call an expert witness. This article is published with my client’s permission. The parties’ names have been replaced, and identifying information has been removed. This... read more →
Dec
10
Earlier this week, I reported that The Tech Contracts Handbook was Amazon's #1 new release in the "Business Purchasing & Buying" category. Now it's number one in the far larger, more general "Cloud Computing" category! The Tech Contracts Handbook: Cloud Computing Agreements, Software Licenses, and Other IT Contracts for Lawyers... read more →
Dec
08
Managing and sharing big data creates technical challenges unlike anything found in traditional data-sharing relationships. But big data contracts don’t involve a whole new field of legal knowledge. If you’ve already worked on cloud computing agreements or traditional data licenses, you have most of the tools needed for big data... read more →
Oct
26
Here's a good post on transfers of European private data to U.S. computers (from BakerHostetler). Of course, it's in response to the October 6 decision by the E.U.'s Court of Justice, invalidating the Safe Harbor certification system. I think the best replacement for Safe Harbor, as of now, is the... read more →
Sep
30
I'm very pleased to announce that the American Bar Association has published the second edition of my book: The Tech Contracts Handbook -- Cloud Computing Agreements, Software Licenses, and Other IT Contracts for Lawyers and Businesspeople. The book is available directly from the ABA's online bookstore. (You don't need ABA... read more →
Jan
28
In an earlier post, I explained that the standard "feedback license" arises out of a misunderstanding of IP -- and generally asks too much from the would-be licensor. After some kvetching in the comments from Professor Eric Goldman, I suggested a "Disclaimer of Idea Restrictions" instead of a feedback license.... read more →
Jan
24
A lot of companies send their partners contract drafts with write-protection: with word processing protections that force the user to track changes through redlining. This tells your partners that you don't trust them to point out all their contract revisions. Why do that when no one needs write protection to... read more →
Mar
26
A lot of software licenses grant the recipient the right to "use" software. But the use license springs from a misunderstanding of copyright law. As a result, it's not clear. A use license may give broader rights than the provider intends or narrower rights than the recipient needs. I'm going... read more →
Oct
14
In last week's post, I addressed the myth of idea ownership. I explained that no one can own an abstract idea. I also argued that, therefore, no one needs a "feedback license." In a feedback license, a company's contractors or partners give it a license to any suggestions they provide... read more →
Oct
06
Technology companies often worry about ownership of ideas they hear. If a contractor or partner gives us an idea, do we need a license to use it? What if it's an idea about our own product or service? The concern often prompts a "feedback license": a sentence or two tacked... read more →
Sep
21
This post departs from our usual discussion of contract terms and talks about redlining and redlining software. A redline (sometimes called a "blackline") provides a quick and easy view of the differences between a new contract draft and an old one. Usually, redlining software underlines added terms and strikes through... read more →
Sep
12
Most IT contract drafters know the difference between a software license agreement and a technology services contract. In a license, the customer gets rights to copy and use software, while in a services contract, the customer gets a service, like tech support or IT consulting. But software as a service... read more →
Sep
01
When one party has to protect information belonging to the other, we tend to pull out a nondisclosure agreement: an NDA. Or if we don't want a separate NDA, we add the NDA's key provisions to our tech contract as a confidentiality or nondisclosure clause. That makes sense if we're... read more →
Aug
22
In a recent IT contract negotiation, the other party's lawyer insisted that the choice of law clause call for Delaware law and courts. His client wasn't based in Delaware and neither was mine. And our IT project wasn't happening in Delaware. Why then choose Delaware law? Because Valerie Bertinelli comes... read more →
