Monthly Archives: December 2008

New Year, New Forum

Happy 2009, everyone!

Wow.  I can’t believe another year has flown by.  2008 was full of twists and turns, but now is not a time for retrospection.  I’ll leave a year-in-review for someone else.

Instead, I’d like to re-introduce you to a few things going on around the site, especially for those of you joining us via your friendly neighborhood RSS-feed-reader.

Obviously, you all know about the blog.  I’m going to continue to post on a regular basis on things that I find interesting or noteworthy in the contracts, software licensing and negotiation world.  The Skribit tool is available on the blog page if you’d like to submit a topic idea/suggestion (you can also just e-mail one to me).  So far, every one that’s been suggested has been covered… so I’m always looking for more topic ideas.

I’ve had to slow down on a few additions that I wanted to have completed by the end of 2008.  The Software Licensing Education Series – 400 and 500 levels are still in production.  I promise that I’ll finish them, I just don’t know exactly when.  But I’ve not forgotten about them.  The same is true for Symetrisk.  I had originally thought that it would be released (if only in beta form) by tonight, alas, it hasn’t.  It is, however, in development as well (two types, no less).  Please let me know if you want to receive immediate notification upon its completion.

The Software Licensing Handbook, now in its second edition, and the Five Fundamental Skills for Effective Negotiation continue to receive praise and recognition from a wide range of sources.  I never imagined the support you’ve shown me and I’m eternally grateful for the chance to share my experience with you.  Thank you!

I haven’t had the time to present at conferences or speak with peers as much as I would’ve preferred.  If you want me to speak at an event or with your team/group, please let me know.  I’ll see if I can be a little more available.

Last, but not least, and brand new for 2009, is an upgrade to v4 of our Forum software.  Just released this evening and installed a few moments ago, the Forum is the place to go to start discussions on anything you want to talk about with other procurement, contracts, legal and sales professionals.  We haven’t had too much action on them to date – but 2009 is the perfect time to start.  Membership is free, posting/reading is free – this is an additional value-add service to you.

I hope you’ve had a great 2008 – and that you have an even better 2009!  I look forward to continuing our adventure together!


Electronic version of the SLH?

I’ve been asked several times if an electronic version of the Software Licensing Handbook exists. To date, the answer is no. I really like the idea of having a tangible item in your hands, even in a digital age. But over the last few years, the idea keeps popping up… and I guess I’m being swayed by the number of authors willing to put their work out in a form that’s more easily replicable.

So I’m willing to consider it again. Now I’m looking for input. Is the lack of an electronic version been what’s holding you back from owning a copy? Would it upset you to pay almost the same amount for a non-tangible product? I dunno… these are just the things that I think about when I’m faced with the same choice from my favorite authors.

Post a reply in the comments or send me an e-mail. I’m interested in your thoughts!

Separation Agreements and Releases

[Disclaimer:  This is one of my rare posts that talks about some heavy legal topics.  Remember that I’m not licensed, I’m not your attorney and nothing below is legal advice.  If you or someone you know is going through the stuff below, please contact an employment lawyer in your area for accurate and comprehensive legal advice!]

In this latest round of mass layoffs and terminations, we once again hear the rumblings of our old contract nemesis, the Separation Agreement and Release.

This is that document that the employer sticks in your face right after they’ve told you that you’re no longer working for them – and that they expect you to sign quickly or lose some types of benefits.  Apparently, Yahoo!’s instructions to get people to sign their Release has already found its way online [via Ask a Manager].  And even though we don’t see the language of the Release, even these bullet point slides aren’t exactly full of integrity.

So, what do you do if you’re going through something like this:

  1. Take a deep breath and relax.  It’s hard, I know (from experience).  But you have to be thinking clearly and not have an emotional response.  It’s what they’re counting on to get you to sign the document.
  2. Do NOT sign anything other than true exit paperwork at the moment of termination.  Read EVERYTHING!  The only thing you should be signing are documents saying that they provided you with certain copies of documents, certain pieces of information (ie: they told you when things had to be turned in for COBRA, etc).  Watch for anything that promises that you’ll take some form of action.
  3. In most states (check with an employment attorney to be sure what the rules are for your area), you have a certain number of days in which the employer MUST provide you so that you can get a Release or Separation Agreement reviewed by competent legal counsel.  In other words, they can’t force you to sign anything at the moment.
  4. Layoffs or terminations might immediately create BETTER circumstances for you on certain topics (such as the repayment of bonuses or relocation or education).  Don’t be swayed by veiled threats that you might have to repay something if you don’t sign the document.  In many cases, their election to end your employment also ends your obligation to repay (again, check with your attorney on this, and, again, it’s one of the reasons why you should still have kept copies of any prior contractual documents with your employer).
  5. In all, don’t panic.  In virtually all cases, you’re going to go through the five stages of grief.  NONE of these stages is a good time for you to be negotiating with someone else, especially as it concerns you.  Go home… take the rest of the day off.  Allow yourself a little time to emotionally recover.  Then start reading through the documents they gave you with a fine-toothed comb.  Contact legal counsel if you have complicating circumstances.
  6. Sign the Release once you fully understand the consequences of signature.  You might end up choosing to receive some sort of cash payout in lieu of something else (like the ability to sue later).  This is a business and legal decision that only you can make for yourself.  Run the numbers like you would any deal.  Approach it systematically and as impassionately as you can.  Ask for help.

Now, there are also a few things that I would watch out for in these types of agreements, too:

  • Any kind of forward-looking restriction on your ability to work somewhere else.
  • Read and re-read any claim release… especially if you’ve had or are having difficulties with an employment related legal issue with your company (again, call a local attorney for advice)
  • A restriction on your first-amendment rights to freedom of speech.  In most cases, you give up the ability to say negative things about your employer.
  • Changes to any pre-existing contracts you have with the employer.  They might try to entice you with a one-time cash payout.  Run the numbers (See #6 above) to see if it’s worth it to you.

Oh, and lastly, remember that you CAN negotiate Separation Agreements and Releases… but probably not with your immediate supervisior and not at the moment that they’re trying to walk you out of the building (see the Yahoo! stuff… they explicitly tell the supervisors not to negotiate).  Collect your things, gather the paperwork… and call their HR Department to arrange a face-to-face meeting in the immediate future BEFORE any deadline for signature arises.  Explain that you have some complicating circumstances that you’d like to address and clarify, so you’d like to talk with someone face-to-face about the Release before you sign.  If HR stonewalls you, call the Legal Department and ask for the Employment Law counsel on staff.  Explain the same thing to them and ask to meet with them.

I’m sorry if you have to go through this.  You are not alone.

(The) Definite Article

Ken Adams is discussing definite articles over at his blog today.  The question is whether it’s appropriate or necessary to include the “the” before a defined term such as Vendor.  I’ll let Ken explain it in his own words.

In the ensuing small comment debate, I wrote a second response that apparently “muddied the waters” of the discussion.  But I felt the last argument had merit and I wanted to discuss it further with you.

Here’s my second (unpublished) post:

Oh, I agree… it IS semantics. But when I’m drafting/reviewing/editing 200+ documents/year, sometimes that’s all I have. 🙂

My average template software license and services agreement is more than 35 pages long. If my opponent decides that they want to change VENDOR to ACME, I have to be honest and say that I don’t want to have to go through the document again to remove each instance of “the” in front of ACME – because most likely, they’ve done it about 2 or 3 revisions in (when it’s not as easy to just undo and re-do properly).

In thinking about it more, however, aren’t we actually converting the defined term into a proper noun? And in doing so, putting a definitive in front of it is actually incorrect for the same reasons why you don’t say “The Acme” or “The Jeff”?

Specifically, I think that the use of a defined term might convert that term into proper noun… and even if it doesn’t automatically, it would if the item it’s defining is a proper noun.  In other words, “Vendor” would be  a defined term that would also now convert into a proper noun because it’s serving as a replacement for “Acme Corp”, which is already a proper noun.  On the other hand, “Services” might not be a proper noun, as the term Services is typically defined as “the work performed by the Vendor”.


Contract Metrics

Lemme’ guess.  Your management asks you to measure your performance.  This is a push from management textbooks everywhere.  Quality programs, Six Sigma… they’re all about measuring what you do and finding ways to improve efficiency.

With contracts, measurement is both easy and tricky at the same time.  It’s easy because there are a lot of numbers to keep track of.  The number of contracts, the number of renewals, the sum of all money spent in a given time period, etc.  It’s hard because the things that really matter: quality of the deal, risk allocation measures, actual cost savings, etc, are more difficult to put a number on.  Or, perhaps you’re trying to measure contract professional performance – how many of a particular term they got included in their contracts, the number of times they’ve started from your template forms (remember, you’re ALWAYS starting from YOUR templates, right?).

But are simple counts of these things a true measure of success, top quality performance, etc?  Or are they simply the easy things to measure to placate your management?

I’m not going to tell you what to measure, at least not yet (Symetrisk will do it for you soon).  But I want you to think about what you’re measuring and how your going to do the measurement itself.  Do the metrics matter?  Do you have the ability to make real inferences (not correlations – you won’t have that kind of data) from what you’ve gathered?

If the answer is no, it’s time to re-think your metrics.