David Tollen recently spoke about the impact of artificial intelligence on lawyers and other contract-drafters. You can watch the webinar for free by clicking here or on the image below.
Many software-as-a-service (SaaS) contracts grant a "license" to the vendor's software. That's a mistake. Licenses authorize making copies of on-premise software. Customers don't copy SaaS, so they don't need a... read more →
Tech contracts use indemnities to address third party lawsuits. The indemnitor promises to defend a lawsuit against the indemnified party and to pay any judgments. (Those terms imply that the... read more →
This is what I call a nuclear indemnity: "Vendor shall indemnify Customer against any third party claim arising out of or related to Vendor's breach of this Agreement." It's nuclear... read more →
There's been a notable development since our October post (Third Time Lucky? Personal Data Transfers between the U.S., EU, UK). Here's a quick update. EU On December 13, 2022, the... read more →
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... read more →
[Things don't stand still in the world of data privacy. Check out our December 15, 2022 update here]. Is your head spinning trying to keep up with headlines about personal... read more →
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... read more →
[Things don't stand still in the world of data privacy. Check out our short updates: Third Time Lucky? Personal Data Transfers between the U.S., EU, UK; Draft EU “Adequacy Decision" for... read more →
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... read more →
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... read more →
[Things don't stand still in the world of data privacy. Check out our short updates: Spring Cleaning: Fix Contract Terms for Data Transfers From The UK; The Clock is Ticking:... read more →
[Things don't stand still in the world of data privacy. Check out our short updates: The Clock is Ticking: Are Your Contract Terms Out-of-Date for Transfers of Personal Data Subject to... read more →
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,... read more →
Tech Contracts Academy will accept no Russian Federation customers until Ukraine is free again. The same goes for my law firm, Sycamore Legal. The flag of free... read more →
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... read more →
[Things don't stand still in the world of data privacy. Check out our short updates: Spring Cleaning: Fix Contract Terms for Data Transfers From The UK; The Clock is Ticking:... read more →
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)... read more →
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... read more →
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... read more →
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... read more →
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... read more →
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... read more →
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... read more →
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... read more →
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... read more →
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... read more →
“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... read more →
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... read more →
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... read more →
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... read more →
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... read more →
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... read more →
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... read more →
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,... read more →
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... read more →
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,... read more →
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... read more →
[Things don't stand still in the world of data privacy. Check out our short updates: Spring Cleaning: Fix Contract Terms for Data Transfers From The UK; The Clock is Ticking:... read more →
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... read more →
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... read more →
[Things don't stand still in the world of data privacy. We hope to provide an update re US State law developments (of which there are many). Meanwhile, for developments across... read more →
[Things don't stand still in the world of data privacy. Check out our short updates: Spring Cleaning: Fix Contract Terms for Data Transfers From The UK; The Clock is Ticking:... read more →
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... read more →
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... read more →
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... read more →
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... read more →
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... read more →
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... read more →
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... read more →
[Things don't stand still in the world of data privacy. Check out our short updates: Spring Cleaning: Fix Contract Terms for Data Transfers From The UK; The Clock is Ticking:... read more →
[Things don't stand still in the world of data privacy. Check out our short updates: Spring Cleaning: Fix Contract Terms for Data Transfers From The UK; The Clock is Ticking:... read more →
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... read more →
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... read more →
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... read more →
Many software-as-a-service (SaaS) contracts grant a "license" to use the vendor's software. That's a mistake. Licenses authorize making copies of on-premise software. SaaS isn't copied, so it doesn't need a... read more →
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... read more →
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... read more →
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... read more →
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... read more →
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... read more →
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... read more →
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... read more →
[Things don't stand still in the world of data privacy. Check out our short updates: Spring Cleaning: Fix Contract Terms for Data Transfers From The UK; The Clock is Ticking:... read more →
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... read more →
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... read more →
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... read more →
[Things don't stand still in the world of data privacy. Check out our short updates: Spring Cleaning: Fix Contract Terms for Data Transfers From The UK; The Clock is Ticking:... read more →
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... read more →
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... read more →
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.... read more →
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... read more →
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... read more →
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... read more →
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... read more →
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... read more →
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... read more →
