Facebook v. Winklevoss et. al. : The end has arrived

Monday, April 11, 2011 by Chris Stephen
The end is finally nigh for the ongoing litigation roller coaster that is the Facebook/Mark Zuckerberg v. Cameron and Tyler Winklevoss saga.  This has always been an interesting piece of software litigation based upon (a) the personalities involved and (b) the scale.  It is safe to say that when you are one of the fastest growing companies in the country, you are going to face litigation.  In fact, that's why you call me.  And it is equally logical that when you are creating a website or working...Read More »

What Is In A Title?

Monday, February 28, 2011 by David Castor
Agreement titles are funny things.  In their best use they quickly describe the general subject matter of the contract.  For most situations a simple title is helpful.  E.g., "Services Agreement" helps differentiate between a contract for services and one for goods.  That is helpful.  Many contract titles are more descriptive (e.g., "License Agreement", "SaaS Agreement" or "Software Service Level Agreement" to describe the technology nature of the agreement). 

Where a client is using form...Read More »

China Issues its First E-Commerce Regulation

Thursday, June 10, 2010 by Chris Stephen
China has enacted the "Interim Administrative Measures on Internet-based Transactions of Goods and Related Services" that will take effect on July 1, 2010.  This regulations should have a significant impact on e-commerce in China.  One can only assume that it will also impact Software Service Level Agreements, SaaS law, and cloud computing law.  The regulations appear to be focused on Business - to-Consumer issues and consumer-to-consumer activities, but the actual language of the regulation is...Read More »

Considering a Software Service Level Agreement?

Thursday, May 13, 2010 by Janet Monroe
software service level agreementA software service level agreement is an important component to your engagement with a client, as this gives them an insurance policy that you will provide the software as a service at a level that satisfies them.  The SLA should include your services, availability, performance, priorities, responsibilities, guarantees, warranties and specifically define the what the "level of service" to be provided will be. 

However, a software service level agreement can be somewhat tough to negotiate because...Read More »

Please Read Before You Click "I ACCEPT"

Wednesday, February 10, 2010 by Janet Monroe
SaaS litigation, software service level agreement, cloud computing lawHow many times have you signed up for a service on-line, scrolled past all the legal jargon, and clicked "I Accept" or "I Agree" without taking the time to actually read the terms and conditions you're agreeing to? 

Admit it.  We all do it.  

But, just as a warning to be careful the next time you're purchasing that new mp3, or more importantly signing your company up for something on-line... those shrink-wrap and click-wrap agreements have been held by the courts to be binding.

Contracting in...Read More »

SaaS Law – Don’t Use The Term “Affiliates”

Monday, December 14, 2009 by David Castor
There are several scope of license issues to work through when handling license agreement negotiations.  In my SaaS law (SaaS legal consulting) practice I often see licensees wanting to open the scope of the license to its “affiliates”. 

For many larger SaaS customers this makes sense as these businesses often operate as families of companies rather than single operating entities.  The customer may need to open the license to its other companies in order to properly use the software.  Just last...Read More »

Go for Home Court Advantage

Monday, November 16, 2009 by Janet Monroe
Indiana Software Litigation, Indiana Technology CounselHere at Alerding Castor Hewitt, LLP, often times we work with clients who have software that inherently transcends state and national borders. 

Not just brick and mortor storefronts, many of our clients have customers nationwide and around the world.

Such is the realm of cloud computing law, and it's up to us as technology legal counsel to answer the inescapable question of what state, federal, or even country's law applies should a lawsuit arise.

Well, if you haven't contracted for this simple...Read More »

SaaS Business Law - Payment Terms

Thursday, August 27, 2009 by David Castor
SaaS Legal ConsultingA client asked me today if it is more usual for customer payments to be in advance or in arrears in Software-as-a-Service (SaaS) license agreements.  It is a great question as this is a common point raised in licensing agreement negotiations. 

The nature of a SaaS law license is that it is a subscription transaction.  There is a guaranteed term with a right to some use of the technology.  What makes SaaS transactions unique is the collaborative support services that support the license.  Some...Read More »

SaaS Law - Revisit Your SLA

Tuesday, July 14, 2009 by David Castor
A SaaS client of mine recently pointed me to a change in the Google Apps Service Level Agreement (SLA).  Google changed the definition of “Downtime Period” in their SLA to exclude the first 10 minutes of any time the SaaS tool is unavailable.   Thus, if the tool is unavailable for less than 10 minutes, that is excluded from any of the administrative headaches or credits to be issued for downtime.

Here is the full Google Apps SLA (notice the definition for "Downtime Period"):





Also, notice that...Read More »

Business Law - Clock Negotiation I

Thursday, April 9, 2009 by David Castor
Negotiation strategies are often quite similar to interrogation strategies.  “Clock Negotiation” is a process often used by large companies with deep pockets and bureaucracy when dealing with smaller companies with lesser pockets.

The goal of the large company is to send contract negotiations through multiple stages of review – with each stage going to a different division or office of the company.  In each stage following the first, the officer will chip away more and more at the terms or...Read More »