Don’t blindly accept unlimited liability for breach of nondisclosure terms
This week’s unsolicited advice on tech contracts … In software contracts, the limit of liability (LoL) almost always comes with exceptions. One of the most common has to do with confidentiality. Liability for breach of the nondisclosure clause has no limit. Why? Most LoLs exclude nondisclosure breaches from the LoL … because that’s what we […]
Don’t blur the lines between confidentiality and data protection
This week’s unsolicited advice on tech contracts … IT contracts often include data in the definition of “Confidential Information.” In other words, they use the confidentiality clause to protect “Customer Data” – or whatever else they’re calling the data at issue. That’s not … the worst idea I’ve ever heard. But it leads to some […]
Cooperation After Divestiture
If Customer divests one of its business units that receives Software or Services pursuant to this Agreement, such divested business unit (“Divested Entity”) will continue to receive Software and Services pursuant to this Agreement, through Customer, for a period of ________ (the “Continuation Period”) as set forth below in this Section __, unless Divested Entity […]
Divestiture with Assignment
If Provider divests its Responsible Division (as defined below), Provider may assign this Agreement to the divested Responsible Division (the “Divested Entity”) at any time until 30 days after closure of the divestiture transaction. Divestiture pursuant to the preceding sentence includes, without limitation, any transaction that transfers ownership of the Responsible Division to a third […]
Assignment Allowed with Change of Control
Neither party may assign this Agreement or any of its rights or obligations hereunder, either voluntarily or by operation of law, without the other’s express written consent, except that either party may assign this Agreement to the surviving entity in a merger of that party into another entity or in an acquisition of all or […]
Anti-Assignment and Termination for Change of Control
Neither party may assign this Agreement or any of its rights or obligations hereunder, either voluntarily or by operation of law, without the other’s express written consent. Any Change of Control (as defined below) will be considered an assignment pursuant to the preceding sentence (and therefore require the other party’s prior written consent). (“Change of […]
Anti-Assignment and Permitted Assignment
Neither party may assign this Agreement or any of its rights or obligations hereunder, either voluntarily or by operation of law, without the other’s express written consent. No assignment of this Agreement becomes effective unless and until the assignee agrees in writing to be bound by all the assigning party’s obligations in this Agreement. Any […]
Waiver of Juries and Class Actions
EACH PARTY HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY FOR DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION COUNTERCLAIMS REGARDING SUCH DISPUTES, CLAIMS RELATED TO THE PARTIES’ NEGOTIATIONS AND INDUCEMENTS TO ENTER INTO THIS AGREEMENT, AND OTHER CHALLENGES TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT. THE WAIVER IN […]
Arbitration
Any claim arising out of or related to this Agreement, including without limitation claims related to the parties’ negotiations and inducements to enter into this Agreement, shall be submitted to mandatory, binding arbitration under the auspices of ___________ (the “ADR Association”), in __________ [city], with the parties sharing equally the costs of arbitration. Arbitration will […]
Escalation and Mediation
In case of a dispute, either party may call for escalation by written notice to the other. Within __ business days of such notice, each party shall designate an executive with authority to make commitments that would resolve the dispute (a “Senior Manager”). The parties’ Senior Managers shall meet in person or by video conference […]