Monthly Archives: September 2008

Warranty Reminder

I had a conversation with a few folks the other day about warranties.

The end of the discussion was a reminder that just because a statement falls outside of the warranty section doesn’t mean that it’s not a warranty.

Warrants are promises.  Dictionary.com defines them as “something that serves to give reliable or formal assurance of something; guarantee, pledge, or security.”  The law.com defintion goes even further “a written statement of good quality of merchandise, clear title to real estate or that a fact stated in a contract is true. An “express warranty” is a definite written statement and “implied warranty” is based on the circumstances surrounding the sale or the creation of the contract.”

Which means that sometimes you’ll see them called “covenants” or “obligations” … but whatever the title, they’re still warrants, even with no title at all.

“But wait!”, said one person.  “We use section headers to delimit our contracts – so warranties are clearly sectioned off from the rest of the agreement.”

Hmmm… good thought.  But don’t you probably also have a section of your agreement where you state that section headers are for reference only and that they shouldn’t be used to interpret the agreement?  Oops.

They’re not discouraged.  “Not only that, but our warranty remedy language says that our warranty remedies only apply to the warranties listed in this warranty section.”

OK… now they might be getting somewhere.  The warranty remedy language probably gives a few “extra” remedies in the event of a warranty breach.  Most likely something along the lines of time to repair or replace the warranted good/service and avoid termination of the agreement.  Who does that remedy language benefit?  I would argue that it benefits the service provider.  Because it gives them the opportunity to stop a breach of contract claim (and thus one for damages) as a result of a warranty problem that they can fix.

But that also means that any of the OTHER warranties provided throughout the agreement not in your warranty section aren’t covered by this remedy language – and thus the only available remedy to “fix” the problem is a breach of contract claim (and probable termination).

What the warranty section is thus really for is to call out special warranties that should have extra protection – and thus extra damages.  The problem I see most frequently is that the “extra damages” portion of the remedy language is missing.

“Um, what do you mean, extra damages?” says the crowd.

Well, I mean that an uncured breach of these warranties should result in something more than termination of the agreement and a modest amount of damages.  In fact, in most cases, I argue successfully that the types of things I have in my warranty section (such as warranties of title/license, 4-digit-year processing, etc) should entitle me to a full refund of all fees paid in the event that the provider isn’t able to fix the problem.

“Holy cow!” shout the providers.  “Are you friggin’ kidding us?  We’re not going to give a full refund.”

Why not?  I’m entering into this agreement under the color of the promises that you’re making to me pre-contract.  You fully expect me to live up to my end of the agreement (you included language for payment, invoicing and penalties for late-payment).  So why shouldn’t I get to rely fully on your promises?

Just a thought.

Grape Licensing

I saw this the other day:

Sunset Seedless grape package

Sunset Seedless grape package

and I’ve been thinking about the implications…  is it really possible to add this type of condition?  I think I agree with Madisonian’s evaluation of the situation, assuming that the grapes are patented.  But what if they’re not patented?  Can you restrict usage of a purchased good?  Thoughts would be appreciated.  🙂

From boingboing.

Software Licensing Education Series – 300s Track Now Available!

Designed for the busy or on-the-go professional, the Software Licensing Education Series (SLES) is video-based training on the complete gamut of software licensing topics. Presented in a college-course level format, with topics increasing in complexity and building upon prior lessons, the SLES allows an audio-visual learner another way to gain knowledge on licensing topics.  Each video is approximately 20-30 minutes in length, so each Track contains about 2 hours of expert instruction in core software licensing topics!

The 300 Track videos include:
SLES 301 – Warranties
SLES 302 – Indemnification
SLES 303 – Limitation of Liability
SLES 304 – Services Issues 1

(400s-500s Tracks are currently in production and will be released shortly!)

Videos are formatted for a computer or portable video player (such as an iPod) and consist of a slide-show format with voice-over instruction, so you can even learn just by listening!

As promised, purchasers of the Second Edition of the Software Licensing Handbook are eligible for a discount on the purchase of a Track from the SLES.  When redeeming your free Software License Risk Matrix, you’ll receive a coupon code for the SLES via e-mail.

First 8 Sessions of the Software Licensing Education Series Released

In the last several years, I’ve had the pleasure of conducting a wide variety of software licensing training programs all around the country.  Attendees that I’ve talked with at these sessions have all expressed a desire to continue their software licensing and contract negotiation learning experience once they’ve returned home.  For the first time, software licensing instruction is now available in a self-paced progressive learning series.

Announcing the release of the first 8 sessions of the Software Licensing Education Series!

Designed for the busy or on-the-go professional, the Software Licensing Education Series (SLES) is video-based training on the complete gamut of software licensing topics. Presented in a college-course level format, with topics increasing in complexity and building upon prior lessons, the SLES allows an audio-visual learner another way to gain knowledge on licensing topics.  Each video is approximately 20-30 minutes in length, so each Track contains about 2 hours of expert instruction in core software licensing topics!

The 100 Track videos include:
SLES 101 – The License Grant
SLES 102 – Delivery, Testing & Acceptance
SLES 103 – Fees and Payment Terms
SLES 104 – Cross-Platform Portability, Updates, Upgrades and Future Pricing

The 200 Track videos include:
SLES 201 – Confidentiality
SLES 202 – Termination
SLES 203 – General Terms 1
SLES 204 – General Terms 2

(300s-500s Tracks are currently in production and will be released shortly!)

Videos are formatted for a computer or portable video player (such as an iPod) and consist of a slide-show format with voice-over instruction, so you can even learn just by listening!

As promised, purchasers of the Second Edition of the Software Licensing Handbook are eligible for a discount on the purchase of a Track from the SLES.  When redeeming your free Software License Risk Matrix, you’ll receive a coupon code for the SLES via e-mail.


New Edition of the Software Licensing Handbook Released!

FOR IMMEDIATE RELEASE:  September 12, 2008

New Book Helps Anyone Negotiate Software Licenses

RALEIGH, NC – The second edition of the popular Software Licensing Handbook, offers negotiators of all skill-levels an opportunity for the upper hand when in the often complex world of software licensing.

Written by expert negotiator Jeffrey I. Gordon who specializes in IT and telecommunications procurement, this publication is full of comprehensive instruction and advice presented in straightforward language that can be applied by the novice or seasoned negotiator. From language nuances to tips and tricks that will give you an edge, the Software Licensing Handbook is designed to help both buyers and sellers navigate the complex waters of negotiating software licenses.

This latest edition includes more than 100 additional pages of licensing and negotiation advice and comes with a free first-look at Symetrisk™, a first-of-its-kind deal evaluation tool. “After working in this industry for years, it has been hard to ignore that the intricacies of software licensing and the related negotiation process rarely receive more than a mention in business books or how-to manuals,” stated Gordon.  “I wrote this book to fill the void and provide a one-stop-shop for everything related to the software licensing process.”


Airline Negotiation Story

Mitchell Burns didn’t like the story Delta told him about the reason for a flight delay.  So he took it upon himself to not only fix his situation, but successfully sue Delta for the cost of the fix.

Because this was a case of default judgment (Delta didn’t fight back), there’s no precedent for restitution in this case (in other words, don’t think that you can always do what Mitchell did and get your money back from the airlines).  So as much as I would love this case to be about contracts AND negotiation, it’s only about negotiation.

So, pay close attention to his negotiation style.  He had a goal, was willing to negotiate even with judgment in his favor, and used alternatives to get what he wanted.

Excellent job, Mitchell!


CIA’s Approach to Problem Solving

Banner, a marketing agency in the UK, recently posted the Phoenix List*, a list of the questions used by the CIA when trying to solve a problem.  Banner was approaching it from a marketing perspective, but these same questions can be used to solve a contracts or negotiation problem, as well.

(*Being the child of the 80s that I am, I would like to believe that this was a creation of the Phoenix Foundation… better known as MacGyver‘s employer. 😉 )


Special Offer for Owners of the Software Licensing Handbook, 2ed

On September 12th, I will be sending out notice to the world announcing the availability of the second edition of the Software Licensing Handbook.  You might have noticed the book picture on the right has changed a bit… yep, you can buy it today (I’ll be available via Amazon and other resellers in about a month)!

This has been an incredible ride – the first edition has been wildly successful … I’m simply blown away by the support of this community of contracts professionals, lawyers, negotiators and supply chain professionals!  So I’ve got all sorts of things planned to make the Second Edition even more valuable to you… and I wanted to let you know about them now:

First, I’ve added more than 100 pages of new material.  I’ve also corrected all of the errors I found (and those that many of you were kind enough to point out to me).

Second, purchasers of the Second Edition will receive a free Symetrisk deal risk review  upon its release (maybe before the end of this year, but I can’t promise anything quite yet… it’s still a work in progress).

Third, as holders of the First Edition have already seen, there are going to be a few special offers for owners of the book(s) not available to anyone else.  Starting today, owners of the Second Edition can get a free copy of the Software License Risk Matrix coded to the Second Edition for those times when a book is a bit obvious in a negotiation.  Additionally, the Software Licensing Education Series is about 50% complete – it’s audio/video training (designed for professionals on the go or for those who don’t have time to read the book)… but book owners will get a discount on the videos.


J.K. Rowling: $4.5Billion, Copyright: 0

Back in May, I wrote about the copyright infringement suit filed by J.K. Rowling against the author and publisher of the Harry Potter Lexicon.

At the time, I hoped that the courts would realize that, on its face, the Lexicon qualified as fair use.  Apparently not.

Ms. Rowling’s response is that the potential publication of the Lexicon was so severe, she stopped writing… and that if publication was allowed, she “firmly believe that carte blanche will be given to anyone who wants to make a quick bit of money, to divert some Harry Potter profits into their own pockets.”

Which is an interesting thing to say, as Orson Scott Card previously stated:

Well, heck, I feel like the plot of my novel Ender’s Game was stolen by J.K. Rowling.

A young kid growing up in an oppressive family situation suddenly learns that he is one of a special class of children with special abilities, who are to be educated in a remote training facility where student life is dominated by an intense game played by teams flying in midair, at which this kid turns out to be exceptionally talented and a natural leader. He trains other kids in unauthorized extra sessions, which enrages his enemies, who attack him with the intention of killing him; but he is protected by his loyal, brilliant friends and gains strength from the love of some of his family members. He is given special guidance by an older man of legendary accomplishments who previously kept the enemy at bay. He goes on to become the crucial figure in a struggle against an unseen enemy who threatens the whole world.”

I hope this isn’t the end of this case… as the results with respects to scholarly works will be tragic.  We can’t see the contents of the Lexicon, so we will ultimately be unable to determine whether, as the court stated, the “Lexicon appropriates too much of Rowling’s creative work for its purposes as a reference guide.”

[Update: Michael Madison at madisonian.net, has a great review of the case.]