The Tech Contracts Handbook: Software Licenses, Cloud Computing Agreements, and Other IT Contracts for Lawyers and Businesspeople

Cover Page
Title Page
Copyright Page
Contents
About the Author
Also by David W. Tollen
Introduction
    Subject Matter: Types of IT Agreements
    The Structure of a Contract and of This Book Using This Book
    A Little Industry Language, Particularly Re Cloud Services
    Three Lessons about Contracting
        1. Good Fences Make Good Neighbors
        2. There Is No Such Thing as “Legalese” or “Technicalese”
        3. Ask Yourself “What’s Our Best Option?” Not “What’s Fair?”
Part I. Prime Clauses
    A. Simple End-User License, On-Premise Software
        1. Reproduction and Use
        2. End-User Conditions and Restrictions
    B. Simple Distribution Software License
        1. Distribution
        2. Distribution Conditions and Restrictions
    C. Software Licenses in General
        1. Copyright License Rights
        2. License Scope Terms
        3. License Conditions and Restrictions
    D. Subscription for Cloud Services
        1. Cloud Services Subscriptions
        2. Cloud Services Scope Terms
        3. Cloud Resale
    E. Promise of Professional Services
        1. Defining the Professional Services
        2. Statement of Work Forms and Procedures
        3. Change Orders
    F. Transfer of IP Ownership: Assignment and Work-for-Hire
        1. Limited Transfer of IP Ownership
        2. Broad Transfers of IP Ownership
        3. Transfers from the Provider’s Employees and Contractors
    G. Payment
        1. Payment by Customer
        2. Payment by Distributors and Resellers
        3. Sales Tax and Other Duties
        4. Due Dates and Fee Disputes
Part II. General Clauses
    A. Specifications
        1. The Definition of Specifications and Their Central Role
        2. Responsibility for Specifications
        3. Organizing and Editing Specifications
        4. Specifications as a Moving Target
    B. Service Level Agreement (SLA)
        1. The Provider’s SLA
        2. Customer-Friendly SLA Edits
    C. Maintenance, Including Updates and Upgrades
    D. Documentation
    E. Schedule, Cooperation, and Assumptions
    F. Deliverables: Acceptance and IP Rights
        1. Acceptance and Rejection
        2. License and Other Rights to Deliverables
    G. Minimum Obligations to Distribute or Resell
    H. Nondisclosure/Confidentiality
        1. What’s Confidential?
        2. Restrictions on Use
        3. Injunction, Termination, and Retention of Rights
        4. DTSA Exception and Immunity
    I. Business Continuity, Including Disaster Recovery
    J. Data Management, Privacy, and Security
        1. Customer Data Definition and Ownership
        2. Use of Data
        3. Compliance with Privacy and Security Laws
        4. Data Location, Access, Deletion, and E-Discovery
        5. Data Security
        6. Audits and Testing
        7. Data Incidents
        8. Limited Data Terms
    K. Warranties
        1. Warranty of Function
        2. Intellectual Property Warranty
        3. Data Warranties
        4. Professional Services Warranties
        5. Other Warranties
        6. Disclaimers of Warranties and Other Liabilities
        7. Warranty Remedies (and IP Remedies)
    L. Indemnity
        1. Indemnity in General
        2. IP Indemnity
        3. Data Indemnity
        4. Other Indemnities
        5. The Cause Problem (or Advanced Indemnities)
    M. Limit of Liability
        1. Dollar Cap
        2. Exclusion of Consequential Damages
        3. Unconscionability and Required Clarifications
        4. Exceptions: Unlimited Liability
        5. Limit on Indemnity Performance (as Opposed to Liability)
    N. Liquidated Damages
    O. Audits of Software Use and Fees
        1. Provider’s Software Audit
        2. Customer’s Audit of Fees
    P. Technology Escrow
        1. Deposit and Verification
        2. Escrow License and Confidentiality
        3. Release Conditions
        4. SaaS Escrow
    Q. Step-In Rights for Outsourcing
    R. Financial Stability
        1. Financial Reporting
        2. Insurance
    S. Use of Trademarks
    T. Feedback Rights
    U. Non-Compete and Employee No Poaching
        1. Non-Compete
        2. Employee No Poaching
    V. Term and Termination
        1. Term
        2. Termination for Cause
        3. Termination for Convenience
        4. Effects of Termination and Post-Termination Obligations
    W. Transition Assistance
    X. Dispute Resolution, Including Mediation and Arbitration
        1. Escalation and Mediation
        2. Arbitration
        3. Waiver of Jury Trial and Class Action
    Y. Assignment, Change of Control, and Divestiture
        1. Assignment in General
        2. Change of Control
        3. Divestiture
    Z. Everything Else
Part III. Boilerplate Clauses
    A. Introduction and Recitals
    B. Definitions
    C. Independent Contractors
    D. Choice of Law and Courts
    E. Notices
    F. Government Restricted Rights
    G. Technology Export
    H. Force Majeure
    I. Severability
    J. No Waiver
    K. Bankruptcy Rights
    L. Conflicts among Attachments
    M. Execution in Counterparts
    N. Construction
    O. Injunction
    P. Internet-Related Boilerplate
    Q. Entire Agreement
    R. Amendment
Appendices
    1. Intellectual Property
    2. Open Source Software Licenses
        How the Open Source “Business” Works
        Notice Conditions
        Copyleft Conditions
        Why Copyleft Probably Isn’t “Viral”
        OSS Contract Terms and Policies
    3. Clickwraps, Browsewraps, and Other Contracts Executed without Ink
        Clickwraps
        Browsewraps
    4. Online Policies
        Acceptable Use Policies
        DMCA/Copyright Notice Policies
        Privacy Policies
Mini-Glossary
Index
About the ABA Section of Intellectual Property Law
ABA-IPL Books Editorial Board
ABA Section of Intellectual Property Law (ABA-IPL)