Software Agreement Drafting
Arbitration vs. Litigation: Which is Better for a SaaS Contract?
I was recently asked by a client whether arbitration or litigation in a contract was better. The issue had been raised by an attorney on the other side of the contract, who had not only tried to persuade my client to revise the specific clause in that case, but had also provided my client the…
Read MoreWhy “SaaS Agreements” are not “SaaS Licenses”
Have you ever heard the term “SaaS license” or “SaaS Licensing” being used among lawyers and businesspeople? There is a misconception that there is such a concept as a “SaaS license.” However, in fact, two principles are actually being confused: the “software license” and the “SaaS agreement.” Why does this matter? Well, if you…
Read MoreForce Majeure and the Coronavirus Pandemic: What Does Your Software Company Need to Know?
If you are on a law firm mailing list, it is likely that you have seen emails or alerts in the last few weeks that discuss the concept of “force majeure.” Why has the concept of force majeure suddenly become a favorite topic of law firms around the country? Well, over the month of March,…
Read MorePractice Tips for Renegotiating Contracts due to Coronavirus Uncertainty and Changed Business Conditions
If your software company is like many, you are probably already contemplating the renegotiation of certain contracts due to the uncertainty and changed business conditions arising from the coronavirus pandemic. However, the renegotiation of contracts will inevitably open your software company up to the possibility of having to agree to terms and conditions far less…
Read MoreCapitalizing on SaaS Sales Opportunities During the Coronavirus Crisis Without Creating New Legal Risks
Although many businesses are concerned about the potential economic fallout of recent shelter-in-place orders in Silicon Valley as well as more limited office and business closings across the United States, the coronavirus crisis is presenting a unique sales opportunity to savvy SaaS companies, given the fact that much of the United States workforce has suddenly…
Read MoreWhy Software Companies Need to Anticipate Insurance Requirements Before Commencing Negotiations on Significant Deals
If your company is like most, you postpone the procurement of insurance policies until you absolutely have to obtain them, expecting to be able to obtain whatever you need on demand. However, if your company is in the software space and you anticipate a significant deal is on the horizon, you should be anticipating your…
Read MoreWhy Big Development Projects Can Equal Big Legal Headaches without Well-Drafted Agreements
If your company has just landed a big development project for a third party, do not underestimate the importance of the agreement in protecting the revenue stream you are being offered in exchange for your development services. The typical development agreement requires lump sum payments in installments throughout the term of the relationship. Also, the…
Read MoreTop Mistakes Made in Software Deals without the Representation of Experienced Software Counsel
I was recently asked for a list of the top mistakes the average company will make when they enter into a software deal without getting an experienced software lawyer involved early in the negotiations. I thought it was an excellent question, so I wanted to share my thoughts on the issue with this audience. First…
Read MoreWhat SaaS Companies Need to Know About Source Code Escrow Agreements
If you are a SaaS company, you may come across a customer or prospective business partner who insists on the inclusion of a source code escrow agreement as part of the deal terms. If this scenario arises, you may be inclined to immediately agree to the prospective customer or business partner’s terms in order to…
Read MoreDrafting Software Hosting Agreements for ASPs and SaaS Hosting
I recently presented for myLawCLE on the topic of drafting software hosting agreements. I am pleased to now be able to share a recording of the full, two-hour presentation with interested Software Law Blog readers:
Read MoreSix Signs You Are Reviewing a Poorly Written Software Contract
I was recently asked how to recognize that a software contract is poorly written. Upon consideration, I’ve come up with six signs to watch for in order to identify a poorly written software contract. In my experience, the first sign of a poorly drafted contract is that contract completely confuses the software licensing and SaaS…
Read MoreNegotiating the Purchase of SaaS Company Assets: Key Problems to Anticipate in any Deal
In light of the popularity of the SaaS model of doing business, it is not uncommon to come across deals in which one software company is buying a third party company’s SaaS assets. While there are many reasons to be wary of these types of deals, regardless of what side of the transaction you are…
Read MoreCommon Software Agreement Fee Drafting Problems and How to Fix Them
When a client sends me a software license agreement or SaaS agreement to review or update, I always make a priority of reviewing any terms in the contract involving fees and then carefully reviewing the website and any marketing materials or fee schedules to confirm that the fee terms in the contract clearly match the…
Read MoreDoes Your Customer Software License or SaaS Agreement Leave Your Software Company Vulnerable to a Legal Dispute Over Implementation?
If your software company is like most software companies these days, you likely set up a software interface and train your customers on how to use the product at the very beginning of the relationship. You probably even charge some sort of fee for these initial services that you provide. And the set-up process may…
Read MoreService Level Agreements: What is a Service-Level Agreement or “SLA” and When Do You Need One?
If you are in the software industry, you may have heard of a “service level agreement” or “SLA,” but do you really understand what a “service level agreement” actually is or when you might need one? A “service level agreement” or “SLA” is a technical agreement that defines that parties’ expectations of the level of…
Read MoreRecent Software Class Actions Provide Valuable Lesson on Why SaaS Contracts Should Be Drafted to Fit Company’s Business Model
When SaaS companies and start-ups first contact me, they are often doing so with the idea that there are a few really well SaaS template contracts circulating in the SaaS industry and they seeking the” right” attorney to provide that industry-standard template to them. Alternatively, they contact me telling me that they’ve already put together…
Read MoreInsurance Industry Guidance to Consider When Negotiating a SaaS Indemnification Clause
As a software attorney advising SaaS companies in contract negotiations, I am frequently asked for advice on negotiating indemnification clauses. While clients all have different risk tolerances when it comes to the issue of indemnification, it is always challenging to advise parties on either side of the negotiating table, as it is difficult to provide…
Read MoreCareful Drafting of Pricing Terms is Key to all Software Licenses and SaaS Agreement
As a software company, do you make a special point of sending all your price schedules, payment terms, and price-related clauses to software counsel for review before you send them out the door to your potential customer? If your company is like most, my expectation would be that you are probably handling all such issues…
Read MoreSoftware Licensing vs. Software-as-a-Service (“Saas”) : The Importance of the Technology Model to Contract Drafting
When I am first retained by a software company, I inevitably have a conversation with my contact at the company about their technology model. Nine times out of ten the client either will be unable to answer the question or will say that they are working under one technology model and send you contracts that…
Read MoreDrafting SaaS and Software Licenses Effectively Requires High Level Knowledge about the Technology
There seems to be a common universal belief among many companies that there is a single form agreement circulating among software lawyers with the perfect terms that can just be cut and pasted into their agreements if they can just find the right attorney who can furnish that ‘perfect’ form agreement. I have lost count…
Read More