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Jeremy AberFounder at AberLawFirm |
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| Article: FTC's Negative Option Rule. What you Need to Know About Your Renewals! |
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May 19 2011 |
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| The Federal Trade Commission (aka FTC) has a rule called the Negative Option Rule, which I really think every company seeking a venture capital investment or growth equity should think about.
The definition. |
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| Article: Should RFP Responses Be Included in SaaS Agreements? |
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May 08 2011 |
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| Background: Where is this whole idea even coming from? Many customers are counseled or taught (BTW, there are lots of companies teaching your customers how to negotiate and buy from you) to send out long RFPs that ask for the world (lots of detailed questions about your solution . . . more information than they probably need), and then when it comes to the contract stage they too often demand that your whole RFP response become part of the final contract. Well, I think this is a really bad idea, and here are 3 reasons why. Just a few thoughts for any company looking for growth capital or a venture capital investment. |
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| Article: Can an IM Conversation Change a Written Contract? |
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May 02 2011 |
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| The answer is, yes.
A very recent case ruled that the parties’ conversation on only IM changed the contract, even though there was nothing actually signed to reflect the change (as one of the venture capital advisors to the OpenView portfolio, I am always looking for cases like this for companies seeking growth capital or a venture capital investment). Does this sound like a crazy result? Actually not, so let’s run through the actual IM conversation, the legal logic, and what you can learn from this case.
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| Article: 3 ‘PRIVACY’ Takeaways from the Google Buzz FTC Settlement in March 2011 |
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April 10 2011 |
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| As you may have heard, Google settled with the Federal Trade Commission regarding its rollout of Google Buzz and its alleged privacy violations during that rollout. There are a few tips here for every company seeking a venture capital investment or growth capital, so I have tried to outline/simplify them for you. |
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| Article: Where to Go For Software Negotiation Training |
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April 05 2011 |
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| There are many different places to go for negotiations training (in general), but where is a great place for learning about the art of software negotiations with customers, partners, etc. (especially for any company seeking growth capital or a venture capital investment)? I highly recommend the Program on Negotiations at Harvard. I have attended some of their seminars, read some of their books, and have found that there is no better methodology for software customer and partner negotiations (from the perspective of the software vendor for say their software or SAAS contract negotiations). You ask why the PON is great, well let me elaborate. |
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| Article: What You Must Learn from a Survey of 358 Trade Secret Cases |
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March 29 2011 |
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| A recent survey of over 358 reported trade secret cases (from 1995-2009) has some great nuggets for every software or SAAS company looking for growth capital or a venture capital investment. Without going into the legal nitty gritty (which I know you want me to skip), here are 3 takeways (after I define ‘trade secret’).
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| Article: 2 Practical Reasons Why You Need an API License Agreement! |
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March 15 2011 |
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| I have been delaying writing a blog post about API licensing, as I could not find a good real world example to go along with the post. Well, Twitter just gave me that real world example. They recently changed their API license agreement, which caused quite an uproar in the Twitter community. Take a read below, as every company seeking a venture capital investment or growth equity should be aware of these 2 great reasons why companies with an API need an API license agreement (instead of going naked with no agreement). |
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| Article: Linking and the GPL: Technical and Legal Update 2011 |
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March 11 2011 |
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| I finally found a really useful working paper and law review article written by some European open source attorneys and the Free Software Foundation Europe on linking issues and the GPL license. I think that every software based business seeking a venture capital investment or growth capital should be aware of this, as it is really hard to get some good practical guidance on open source legal issues. As a bonus, this perspective tries to marry the legal analysis with the technical analysis. Take a read!
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| Article: Should I Make Long-Term or Short-Term Commitments to My SAAS Customers? |
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March 03 2011 |
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| Have you thought about which parts of your SAAS customer contractual commitments should be a short-term, and which part should be a long-term? Well, if you are looking for growth equity or a venture capital investment and you have not thought about it, then how about we do that now? |
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| Article: Who OWNS your Sales Leads – You or Your Sales Rep? |
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February 23 2011 |
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| Hey, this used to be an easy answer (you owned them and you had possession of them), but in these days of LinkedIn, Twitter, Facebook, etc., it is not so simple. Here are some thoughts on this software sales compensation issue for any company looking for growth equity or a venture capital investment. |
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| Article: Enterprise Software Agreement: How to Design Yours! |
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February 03 2011 |
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| This is an issue near and dear to me, as I have spent a large part of my career drafting and negotiating enterprise software agreements. However, I found that many companies seeking growth capital or a venture capital investment are trying to figure out how to design their enterprise software agreements… so some thoughts on this (from a software attorney) would/should be helpful. |
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| Article: Have SaaS Contracts Become Commodities |
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May 04 2010 |
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| Have SaaS Contracts Become Commodities? From a software licensing attorney perspective the answer is in some ways yes, and other ways no. Here is a more thorough explanation. |
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| Article: What is the Purpose of an End User Contract? |
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March 19 2010 |
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| IT contracts are arguably more important than contracts in other industries. In most industries, the buyer purchases a tangible product they then own, or generally knows what type of services they will receive. However, in the IT world the buyer does not own the product and is often unsure of exactly the type of service they will receive. Here is an article on figuring out the purpose of an end user contract. |
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| Article: What SAAS Customers Expect in their SAAS Contracts |
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January 07 2010 |
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| The Altimeter Group published a report called the Customer Bill of Rights: Software-as-a-Service that outlines "39 Best Practices to Improve Client - Vendor Relationships". Here is an overview with some suggestions for SaaS vendors. |
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| SaaS Agreement - Software as a Service Agreement |
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| March 06 2013 |
| Well it is a little of both, but let me explain. I learned something about the Salesforce.com agreement that totally changed my thinking about SaaS and PaaS agreements, and service level agreements (SLAs): there is no SLA in the Salesforce.com agreement. Yep, you read it right; there is no SLA in their agreement. What Salesforce.com [...]The post Are you Selling Trust or Sa ... read more >> |
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| January 21 2013 |
| Microsoft drafted their new Windows 8 EULA in plain English and in a way that has never been done before (at least based on what I have read … and I read lots of EULAs). The New EULA Structure. It has 3 sections: (1) FAQ, (2) Additional Terms and (3) Limited Warranty. Now you may [...]The post Microsoft Finally got it Right. They Created a Plain English EULA! ... read more >> |
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| December 09 2012 |
| There are some great lessons here regarding SaaS confidentiality agreements (aka NDAs). Background: A startup SaaS company (Techforward) disclosed its confidential consumer electronic buyback program information when trying to win the business from a ‘prospective customer’ = Best Buy. Best Buy gave all the right buying signals and Techforward went even further and disclosed its trade secrets (internal [...]The post ... read more >> |
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| October 04 2012 |
| Don’t be surprised if you don’t totally understand this SaaS agreement question, even though you want to know the answer. Ok, let me explain, and this will (hopefully) become clearer. In every SaaS transaction, the law imposes a liability model that is limited only by what your customer can prove as its damages under [...]The post ... read more >> |
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| September 04 2012 |
| Ok, let me explain what I mean. Enterprise customers too often want to make up their own terms (i.e rules) regarding how they use your software service. As a result, you really need to think about linking price with terms (in your SaaS agreement). How does this work, well let’s go through it. 1). De-Linking [...]The post Did You Kno ... read more >> |
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| July 11 2012 |
| The Utah Supreme Court ruled in June 2012, that when a software vendor is sued for its software’s destruction of customer data, it really matters whether the software vendor told the customer to backup its data or not. Ok, let me explain this (from the software or SaaS company POV for its EULA or [...]The post ... read more >> |
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| May 28 2012 |
| Ok, I need to define a term first. ‘Strategic uncertainty’ = when a party to say a cloud services agreement intentionally tries to create an ambiguity in a clause, so they can later use it for their benefit (in a dispute of course). Look agreements are all about certainty and rules, so any type of uncertainty [...]The post ... read more >> |
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| May 21 2012 |
| While there are a lot of things you should think about when drafting your cloud services agreement, here are 3 things you should definitely think through. 1) Clarity. While not all lawyers agree, I think cloud services agreement in particular should be drafted as clear as possible. Why you ask? Well, your customers want to [...]The post ... read more >> |
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| March 12 2012 |
| Ok that may be a little bit of an overstatement, but I do think that this new concept of ‘Privacy By Design’ is the future of privacy in terms of SaaS privacy and software privacy. Here are 3 simple things you should know about Privacy By Design: 1) ‘Being Adopted’ in the US (Invented in [...]The post I Have Seen t ... read more >> |
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| February 04 2012 |
| The taxation of international SaaS transactions is complicated and not all worked out, but I thought I would summarize a few key points from a recent Grant Thornton article on the subject. Here are a few key things to think about: Permanent Establishment – this is accounting speak for do you have enough of a [...]The post Tax ... read more >> |
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| December 05 2011 |
| Ok this CarrierIQ situation is really crazy, but there are some things (from a SaaS Attorney’s perspective) that every software or SaaS company should think about. 1) Who is really at fault here: CarrierIQ or the carriers? While this is a complex question (and as of today all of the facts are not known) what we do [...]The post ... read more >> |
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| November 21 2011 |
| This is a pretty fundamental concept in any software negotiation, so this is something you have to master. One of the big guns (William Ury) from the Program on Negotiations at Harvard (which is in my opinion the best negotiation program out there), wrote a book on how to say ‘No.’ If you did not realize it, ‘No’ [...]The post ... read more >> |
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| October 31 2011 |
| Ok, if you have not heard of Kevin Mitnick and you are in the software industry, then he is someone you need to know about. He is probably the most notorious hacker in US history, and he released his new book Ghost in the Wires (A 5 Star Rated Book on Amazon.com) a few months [...]The post A Take on Kevin Mitnick’s New Book ... read more >> |
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| October 02 2011 |
| Ok, let me see if I can explain this issue a little better. Can you use third party software (for example, Microsoft’s SQL Server) in your partner’s demo lab for testing your software? Can you go onsite to a prospect and use/leave SQL Server in a demonstration environment for 3 weeks, so they can test [...]The post ... read more >> |
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| September 01 2011 |
| Not sure if you missed it, but a site was launched called ApplicationPrivacy.org. What is the big deal? Well, this project/site is devoted to educating app developers on application privacy issues (a worthy goal). So as a SaaS Attorney, I thought I would share my thoughts on this site/project, as there are some great takeaways [...]The post Sa ... read more >> |
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| August 06 2011 |
| It is not often that there is a reported case specifically addressing exclusive software licensing, so I thought I would share 3 takeaways from this 2011 case (HyperQuest vs N’Site Solutions). I will definitely not bore you with the long and detailled facts in this case, so let’s get to it. Key Takeways: 1) If [...]The post ... read more >> |
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| July 04 2011 |
| You may have already heard of this open source license, but if not, here are a few things every SaaS company needs to know about the Afferro GPL or AGPL (at least from the perspective of an open source attorney). 1) If you use AGPL’d code or modified code in your SaaS offering, you need [...]The post AGPL and what EVERY SaaS Co ... read more >> |
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| June 12 2011 |
| As you know, software license agreements contain restrictions (= things you cannot do with the software). As a software license attorney, I would say that these are examples of the most common restrictions (e.g. (1) don’t reverse engineer or decompile the software and (2) don’t let a third-party use the software). However, I would also say [...]The post ... read more >> |
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| May 17 2011 |
| The Federal Trade Commission (aka FTC) has a rule called the Negative Option Rule, which I really think every SaaS and software company should know about. The definition. Negative Option means – when someone ‘fails to act’ (= silence) means they accepted a contract. Q: Why Does the [...]The post ... read more >> |
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| May 07 2011 |
| The simple answer is no, don’t do it. Ok, let me explain. Background: Where is this whole idea even coming from in the SaaS law or software law regime? Many customers are counseled or taught (BTW, there are lots of companies teaching your customers how to negotiate and buy from you) to send out long [...]The post RFP Responses Included i ... read more >> |
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| May 01 2011 |
| The answer is, yes. A very recent case ruled that the parties conversation on only IM changed the contract, even though there was nothing actually signed to reflect the change (as a software licensing lawyer, I am always looking for cases like this for you). Does this sound like a crazy result? Actually not, so [...]The post Can an IM Conve ... read more >> |
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| April 10 2011 |
| As you may have heard, Google settled with the Federal Trade Commission regarding its rollout of Google Buzz and its alleged privacy violations during that rollout. There are a few SAAS privacy or software privacy tips here, so I have tried to outline/simplify them for you. 1) It is All About DEFAULT Privacy Settings. Think [...]The post ... read more >> |
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| April 04 2011 |
| There are many different places to go for negotiations training (in general), but where is a great place for learning about the art of software negotiations with customers, partners, etc. I highly recommend the Program on Negotiations at Harvard. I have attended some of their seminars, read some of their books, and have found that [...]The post ... read more >> |
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| March 28 2011 |
| A recent survey of over 358 reported trade secret cases (from 1995-2009) has some great nuggets for every software or SAAS company looking to protect its SAAS trade secrets and software trade secrets (something you should be doing, by the way). Without going into the legal nitty gritty (which I know you want me to [...]The post ... read more >> |
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| March 15 2011 |
| I have been delaying writing a blog post about API license agreements, as I could not find a good real world example to go along with the post. Well, Twitter gave me that real world example, as they recently changed their API license agreement (which caused quite an uproar in the Twitter community). Take a [...]The post 2 Reasons Why You Nee ... read more >> |
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| March 10 2011 |
| I finally found a really useful working paper and law review article written by some European open source attorneys and the Free Software Foundation Europe on linking issues and the GPL license. I thought I would share some of the highlights with you as it is really hard to get some good practical guidance [...]The post Linking and t ... read more >> |
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| March 03 2011 |
| Have you thought about which parts of your SAAS customer contract commitments should be a short-term, and which parts should be long-term? Well, if you have not thought about it, then how about we do that now. What Should/Could Be Short Term? The key with SAAS models is that most* are not perpetual (aka forever) [...]The post ... read more >> |
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| February 22 2011 |
| Hey this used to be an easy answer (you owned them and you had possession of them), but these days of LinkedIn, Twitter, Facebook, etc., it is not so simple. Here are some thoughts on this software sales compensation issue. 1) Where are Your Sales Leads Stored (aka who has possession of them)? Old days [...]The post Q: Who Owns Your Sales ... read more >> |
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| February 03 2011 |
| This is an issue near and dear to me, as I have spent a large part of my career drafting and negotiating enterprise license agreement. However, what I have found is that many growing software companies are trying to figure out how to design their enterprise license agreement, so some thoughts on it would/should be [...]The post Enterprise ... read more >> |
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