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 up a few compromise... read more →
Jun
18
Jun
12
On Thursday, June 14, Rimini Street will interview David Tollen about protecting data in cloud computing agreements -- in a live webinar. The program is at 10:00 am Pacific Time / 1:00 pm Eastern Time and will last roughly 30 minutes. Best of all, it's free! Please click here to register.
Jun
08
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 during the dispute. It... 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
16
David Tollen will be speaking in a webinar on Tuesday, April 17 at 10:00 a.m. PDT / 1:00 p.m. EDT. The topic is SaaS, PaaS and IaaS: Evaluating Cloud Service Agreement Models, Negotiating Key Terms, Minimizing Contract Disputes. The live program is open to the public, through the Strafford organization, for $297.... 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
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 products have vulnerabilities... read more →
Feb
02
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 specifically addressing copyleft... read more →
Jan
30
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 that the Licensed... read more →
Jan
26
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? Nothing. Concerns about... 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... read more →
Nov
28
Please join Tech Contracts Academy and Black Duck Software for a webinar on November 30th, at noon PST, as we discuss the implications of open source software in tech contracts. Open source issues have stood the forefront of the technology industry for many years, but as the use of open... 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
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 a distributor asking its supplier for an indemnity against product liability suits. Either way, the... read more →
