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
11
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
10
David Tollen will be speaking and teaching about tech contracts at two events next week, and both are available to the general public. They're below. Live Program, Wednesday 4/17/19, 6:00 p.m. PDT, San Francisco Financial District - ASAP CA Chapter - SaaS Go-To-Market Partnering Contracts: What Does and Doesn't Work.... 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 →
Feb
05
By David W. Tollen Many tech contracts require that one party indemnify the other against claims “resulting from the Indemnitor's negligence or other wrongdoing.” In other words, the indemnity obligation gets triggered by the indemnitor's fault -- by something it did wrong. Unfortunately, these fault-triggered indemnities work poorly at best. To... 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
By David W. Tollen In contracts about complicated 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,... 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
By David W. Tollen 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... 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
20
We are very excited to announce the launch of Tech Contracts Academy, LLC. It’s a new business that provides training on drafting and negotiating technology contracts — for contract managers, procurement officers, IT staff, and other businesspeople, as well as for lawyers. We offer the tools professionals need to do... 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
By David W. Tollen 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... 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 →
Nov
02
FYI, in October and November of 2017, we updated all the forms on the TechContracts.com Contracts page. The edits relate mostly to minor changes in our view of best practices. A few correct small errors. None involves a large-scale change. But it's usually best to use the latest version ...
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 →
Oct
05
On October 11, I’ll be moderating a panel-webinar for lawyers, provided by the American Bar Association. It's called What You Need to Know: Threats Your Technology Poses to Confidentiality and Attorney-Client Privilege. The panelists and I will discuss the technology law firms use to communicate with clients and store documents --... 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
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 2016.... 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 →
Nov
06
When does an indemnity clause belong in an IT agreement? Without some rule or guiding principle, you'll find it difficult to negotiate indemnity requests. You'll find it hard to know when the other party's request is reasonable, or when your own indemnity request makes sense and you should stick to... 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 →
Aug
20
[This post has been superseded by a new one: Indemnifying for Negligence Make a Mess.] Imagine an IT contract negotiation. One party asks the other to indemnify and defend it against certain suits by third parties. Maybe it's a customer asking its vendor for an IP indemnity. Or maybe it's... read more →
