Updates and Errors, The Tech Contracts Handbook
The third edition of the Tech Contracts Handbook (2021) remains quite up to date. (And it’s a huge bestseller: among the top three from ABA Publishing and regularly in the #1 spot on Amazon for Computer and Internet Law, Science and Technology Law, etc. – though catching up to The Lord of the Rings still […]
Don’t accept a “registered after the Effective Date” exception to your IP indemnity
This week’s musings on tech contracts… Some IP indemnities exclude claims about intellectual property registered after the contract’s effective date. The vendor argues that it shouldn’t be responsible for IP it couldn’t have known about when it signed the contract. “If we couldn’t have known, we’re not at fault if our product infringes.” That argument […]
Should the Limit of Liability Cover Indemnities?
This week’s musings on tech contracts… 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 […]
Don’t blindly accept unlimited liability for breach of nondisclosure terms
This week’s musings 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 did […]
Don’t blur the lines between confidentiality and data protection
This week’s musings 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 questions. […]
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 […]