Monthly Archives: April 2009 calls for End of Maintenance

Below is the contents of an internal memo CEO Marc Benioff shared with Vinnie Mirchandani (and posted on his blog: deal architect).  I’m pasting it here for simplicity’s sake and because of the power of the message itself.

“For ten years, we’ve been driven by a simple vision: The End of Software.  Now it’s time to take on a new challenge: The End of Maintenance.

Let me tell you about a customer that I met on our Cloudforce tour. This customer currently uses Siebel software to run her call center.  She pays more than $15 million a year for the privilege of having to implement the updates that Siebel sends her.  That does not include backup. Or disaster recovery. And of course, it does not guarantee that she will be using the latest technology.  The maintenance agreement only assures her that her outdated software will continue to work.  She is paying tolls on a road to nowhere.

We can help her, and many other customers, and deliver much more for a fraction of what they currently pay in maintenance. It’s time to open up a new front in “The End of Software”– one that is long overdue.

It’s time for The End of Maintenance.

Every year, companies spend billions on maintenance fees and get relatively little in return. Maintenance fees cover updates that are mostly  patches and fixes, but they stop far short of the kind of innovation every that enterprise needs to survive.  Companies pay to keep the past working and they end up doubling down on technology that can never keep up with their needs.  The fees that companies pay have actually been rising, from something like 17% a few years ago to numbers more like 22% today. Every four or five years, companies are paying for their software all over again.

It’s time to set these businesses free and make them successful in the Sales Cloud,  Service Cloud and on our platform.

Our new mission begins at a critical time in the economy, when companies are questioning conventional wisdom as they never have before.  That, of course, extends to their IT budgets as well. The CIO is in a tough spot right now.  Corporate budgets are tightening.  And our rivals in the legacy client-server world are using this opportunities to extract more money from their customers by raising maintenance fees.  I call this phenomenon “the compression of IT” and it resonates with just about every CIO I speak with these days.

We have a better vision. We sell our customers a service and every customer is able to use the latest. Innovations are included. Upgrades are automatic and invisible. Customers’ intellectual property of customizations and extensions is rigorously preserved, and carried forward without disruption.

The service gets better, not just less buggy. That’s not what people are getting for all those fees that supposedly buy them “maintenance.”

It’s time to set these business people free: to give them the experience of being wildly successful in the Sales Cloud, the Service Cloud, and in their own unique applications that they can build on our platform. This is the time to do it, because this is when people need it: their IT budgets are tight, their business situations are critical, and their old-world software vendors are taking care of themselves instead of meeting the needs of their customers.

We’ve raised people’s expectations for better alignment of business value with IT cost. We’ve earned our leadership position in enterprise cloud computing. It’s time for us to set people free from paying more and more to get less and less. It’s time for The End of Maintenance.




More interesting copyright issues

According to this article from Wired, Apple is involved in some very interesting copyright violation cases related to their fairplay copy protection scheme and DMCA takedown notices they provided to folks discussing how to circumvent Apple technologies.

I would pay attention to what the US Copyright Office decides based on their review – and on the results of the lawsuit itself.  While I still strongly believe that US intellectual property right laws are able to handle new technologies… I’ve become a little concerned about how the courts have been reacting to various claims (as well as legislative moves like the DMCA).

Guth Studying for the Bar

Our good friend Stephen Guth of The Vendor Management Office has been on hiatus recently, studying to take (and probably ace) yet another bar exam.  For those of you who have never tried one, I don’t recommend it.  Usually 2+ days long, 6-8 hours per day.  One half is typically a 200+ multiple-choice question exam called the Multi-State Bar Exam.  The other half is typically essays, based on the substantive state laws of whatever state bar you’re trying to pass.  Recently graduated law students typically spend about a month in bar-prep courses prior to the exam – trying desperately to learn the substantive law of their chosen state (you don’t have to go to school where you want to pass the exam – so most schools don’t “teach to the test”).

It’s grueling work – and if you’re like Stephen – having already passed in one venue and then doing it all over again in another many years after law school, it’s even more difficult – you simply have forgotten much of what you learned that’s outside your practice area.  So Stephen’s disappearance is highly warranted – between work, studying and his personal life, I’m surprised he’s still breathing… or sane.  Which might account for this random post that just appeared on his site.

Stephen:  if you’re out there and listening – hang in there buddy!  You’re gonna’ nail that exam.

How to… redline

When you’re about to enter a contract negotiation, and assuming you’ve not been successful in using your templates, the first step is to review and redline the agreement.  This How-To is intended to teach you the obvious (and not-so-obvious) skills of redlining.

  1. Ordinarily, I suggest a quick once-over.  This is a perusal designed to see if the major sections of the contract are present.  Using a checklist like the Software License Risk Matrix will help you verify that all of the headlines are covered.  Not all contracts will contain the same sections, of course, and just because a contract has a stated Header doesn’t mean that the language in that section actually matches the Header’s description.
  2. For any “missing” sections of the agreement that you would like to insert, create new sections in an appropriate place (as you read an agreement, you typically have a feel for where certain sections will need to go.  You’ll also have to make adjustments based on numbering schemes or sub-numbering schemes to match the original – so watch the blind copy-pasting.
  3. Now, hopefully you’ve got the contract in Microsoft Word (or other word processing format) to facilitate an easy redline.  Enable Word’s “Track Changes” feature via the Tools menu.  Advanced users will also note that you can quickly turn Track Changes on and off via the green-light at the bottom of that document’s window next to the “TRK”.  If the other side has sent you a document via PDF and refuses or is otherwise unable to send you a Word version, use the free service at run by the great folks at NitroPDF.  This service will convert your PDF almost flawlessly and e-mail you a converted Word file.
  4. Read each section carefully.  Start with the definitions and make sure that all defined terms have a definition (many times this isn’t the case).  Now march your way through the agreement.
  5. Where you do not like particular language, the Track Changes feature allows you to “delete” the language – but instead of actually removing the offending words, it changes the color and puts a strike-out line through the deleted language.
  6. On the flip-side, when you insert language, Track Changes will insert your new words in the same color as the deleted text, only this time is underlined.
  7. Where possible, suggest new language that you’d prefer to be in the agreement rather than just strike-out the language you find troublesome.  This will provide a great basis for a negotiation.  If you simply delete language, I would assume that you simply want the language removed and nothing else added.  When this is the case, I will sometimes make a note to tell the other negotiator why I made a particular change:  “[JeffNote:  I don’t believe I should have to indemnify you for this.]”  This call-out makes it easier on the other reader to accept or reject your change, as your explanation might be all that’s needed for them to accept your modification.
  8. Then, when you’re the recipient of a redlined document, your first task is to review the changes to see if any of them are acceptable without discussion.  If so, simply right-click on the change and select “Accept Deletion” or “Accept Insertion” from the pop-up menu.  HOWEVER, DO NOT SIMPLY REJECT CHANGES!  This would create a presumption on your part that you shouldn’t make without talking to the other side first.  Rather, leave unacceptable changes in redline format as open for discussion.
  9. As the second reviewer (and the presumptive owner of the original), you might feel some initial pain at making any changes at all to your template.  Remember, however, that you’d do the same thing to someone else’s template.  Additionally, while I’m sure you wrote your template with every conceivable situation in mind, there might be a situation you didn’t conceive.  In other words, give the redline a chance.  Read it with the intent to accept as many changes as you possibly can.  This is a negotiation, afterall.
  10. If you need to suggest language back to the first reviewer, Track Changes anticipates this and will (unless you make changes to the Preferences settings) automatically assign each individual reviewer a different color.  If you place your pointer over a particular change, Word will tell you the name (as set in Word’s preferences) of the editor for that change and the date/time of the change.  If your name doesn’t appear on changes, make sure that you’ve entered your name in the preferences settings and you’ve also unchecked the box that has Word remove the name of the reviewer as part of its security process.
  11. So now you have a document that should have fewer redlines than when the first person was done, might have some additional redlines from the document’s original author and the document is now ready for negotiation.
  12. Set aside plenty of time for negotiation – rushing is to neither party’s benefit.  You do not have to make it through the entire contract in a single session.
  13. Once pleasantries are out of the way, discuss who will be the document owner (I typically volunteer… it keeps me alert and I feel much better about how the changes are completed).
  14. During the negotiation, systematically review the agreement from the top on down.  Continue to make any new additions or deletions in redline.  But accept/reject prior changes as agreed during the negotiation.  Thus, when done, you’ve got a document that ONLY has points of contention or new language changes still in redline.  In rare cases, in a trusting relationship, you might agree to make “blackline” changes.  If so, never breach that trust.
  15. OK, so after a few back and forth discussions, you should have resolved all open issues.  Take one more quick review to look for any open issues.  Use Track Changes to see if there are any unseen remaining edits (use the “Next Change” button to see if there are any you missed).
  16. What you’re left with is a blackline document – everything’s in black and white.  GREAT JOB!
  17. If you’ve got to do a redline by hand, here are a few additional suggestions:  a) Don’t.  Seriously.  Scan and use PDFtoWord.  b) But if you have to, learn to write very small in the margins with tiny arrows indicating where new language would go.  c) Actually strike through (with a single line) each word you don’t like.  d) Don’t waste time handwriting in entire new sections.  Just note what new ones are necessary – add new language electronically later.  e) If you must, create a separate document and create an amendment document where you describe each deletion and/or insertion.  Again, this method is HIGHLY outdated, but some organizations just can’t seem to get away from it.

Once you’re done, I sometimes also recommend using a tool called DeltaView (or even Word’s own Document Compare feature) to compare the original against the finished product.  This helps you check all of the redlines that were actually agreed upon and gives you a level of comfort that neither party tried to sneak in a change the other party didn’t accept.  However, unless I have reason to believe that the other party isn’t trustworthy, I typically have been diligent enough through each turn of the document to not require this final step.

All that’s left now is execution and managing post-contract obligations.  But that’s another day.

Wonder what would happen if this was done in the IT space

This type of survey would actually never work in the IT vendor world (versus vendors or versus customers) for two reasons:  1.  Almost all customer contracts contain confidentiality provisions which would restrict disclosure; and 2.  Almost all vendors would simply shut off access to the service or support (or the license remotely) if the customer didn’t pay.

But I would be interested, nonetheless, to know who the really bad customers are out there.

Economic Renegotiations

In an interview with Inc magazine the other day, I was discussing the effects of the current economic situation on contract negotiation potential.  More specifically, everyone seems to believe that the current downswing is cause for not only some great deals, but also for the potential to create some re-negotiation possibilities.  In other words, the various authors of these pieces are looking for confirmation that now is a great time to buy.  Well, my advice on that issue is pretty simple and I’ll point you all towards the article when it comes out.  😉

I’m more concerned at the moment with the opportunity for re-negotiation because this opportunity does actually exist.  But it’s an opportunity that ALWAYS exists.  The current economic situation is merely bubbling the issue to the surface.

Now, I’ve literally just spent the last half-hour writing and re-writing an attempt to eloqently and gently explain how negotiations are supposed to work and how they’ve not really worked over the last few years due to bullies (both on the vendor and customer sides of the transactions).  The truth, however, is that there isn’t a nice way to explain it.  The negotiation situation has been bad and it continues to be bad – even after the current downturn has made everyone more acutely aware that bad deals are worse when the economy turns sour.  So I’m just going to be really blunt.

Folks: do good deals.  Work well with each other to make sure that each party’s true needs (and a few of each party’s wants) are met during the deal.  Look deeply into the financials of the deal, as well as how they’re calculated.  Don’t guess, don’t assume, don’t overestimate.  Use real numbers, actual counts and a solid basis for each transaction.  Get rid of puffery, boasting, bloating and non-essentials.  If you only THINK or BELIEVE something is going to come to pass, don’t base the deal on it.  Rather, find a way to add it in as a POTENTIAL opportunity – a possible future transaction.  But don’t commit to an uncertain future.

In more Plain English™, buy what you need, sell what you have.  If you don’t need it or don’t have it, don’t do the deal.  Don’t use pretend numbers to support the transaction or the promise of potential to entice you into something that won’t work for you in the current state.  And don’t expect either party to return to the table when the economy goes bad or things don’t work out as planned for you.  Your problem isn’t THEIR problem.  (Perhaps you’ve heard this as “Poor planning on your part doesn’t constitute an emergency on my part.”)  And, for the people who are thinking it, this is not a situation for force majeure.  Economic fluctuations are understood and always possible.

Again, do good deals.  Apply the Five Fundamental Skills for Effective Negotiation.  If you need/want help, get it.  Oh, and contrary to what is happening with certain large industry players at the moment, don’t expect someone else to bail you out because you didn’t plan.  If you haven’t learned the lesson so far, let’s put it in Plain English™, too:  The economy swings both ways.  Unexpectedly.  More often than we’d like.  Regardless of your political leanings, fiscal and risk conservativism is always appropriate.

Telecoms and Taxes

OK, I’ve tried to be cool… I’ve tried to be calm.  But I’m really tired of telecom companies and their taxes, tariffs, surcharges, fees, pass-throughs, regulatory issues, etcetera.  It’s not that telecoms are inherently bad.  I like many of them (ok, most of them).  But I’m tired of them passing along all of the various government taxes and fees that they have to pay.  In the rest of the world, we call that “the cost of doing business”.

I’ve tried for years to get things down to “sales and use” taxes.  Invariably, if I want to get the contract completed, I have to agree to the pass-throughs.  I guess I’m just sick of bending on this.

The reason, of course, is that these taxes, fees, surcharges and other such additional costs ARE NOT THE DEFAULT RESPONSIBILITY OF THE CUSTOMER!  That’s right – the telecoms themselves are responsible for paying these various fees.  But the telecom lobbyists have been quite successful in making sure that the laws and regulations requiring payment of these fees don’t talk about whether the telecoms have to pay them themselves.  So what do they do?  They pass along the fees to the customer.  Again, they’re passing along the cost of doing business (ie: taxes levied by the government).  Heck, sometimes they don’t even attempt to mask it – they call it a “Cost Recovery Fee” right on your invoice!

Can you imagine if you were able to successfully pass along YOUR costs for doing business?  So that not only did you get the fees for your product or service, but you got additional fees based on the various regulatory taxes and surcharges you had to pay?  I wonder what would happen if various businesses started tacking on additional fees for services provided to the telecom companies.  Do you think they’d want to pay them?

Has anyone else grown tired of this?  I can’t be the only one.

[PS.  Other regulated industries do this too, just not as blatently.  Need proof?  Check your most recent energy-related bill.  See any “fees” not actually 100% related to your usage?]

[PPS.  We’ll talk about telecom tarrifs one of these days, too.]

Intellectual Property Issues in 2009

Prompted by an interesting post by James Governor on the subject of IP ownership of brands, names and even posts made through social networking sites (thanks to Deal Architect for the heads-up), I thought that starting a discussion about these IP Issues in 2009 might be a good idea.  Basic premises of IP protection have remained unchanged for decades.  In the US, there are four basic options: Patents, Trademarks, Copyrights and Trade Secrets.  While Patents and Trade Secrets are important and a conversation on copyright of your posts is enough for an entry all by itself – the discussion of brands, names and posts on such social networking sites is really about Trademark.

Brands, Trade Names, Monikers, Handles, etc. – these are all things that are typically covered by Trademark protection.  While it’s obvious today that a large company would register their domain name (, people quickly forget that new services offer new potentials for name registration: Facebook, Twitter, MySpace, etcetera – each require a new registration.  Of course, at one time, domain names weren’t as common and even The Coca-Cola Company went through an exercise with a third party who had registered  But today, it should no longer come as a surprise to anyone that if you want to maintain your presence on each of these services, you have to register – especially if you’re not as large of a company to have a world-wide presence.  In fact, as I pointed out to James, his organization’s name (redmonk) might be common with another person in another part of the world.

Given that trademark registrations are regional in nature, it’s conceivable for two or more organizations to have a common claim on a particular name.  And it’s also possible, if you’re a coke provider (a coal residue), or any number of people with a last name of Coke, that you have a reasonable desire for a coke-related name.  But if you’re a Twitter user, for example, you’ll know that there’s only one option for a given name.  If you want @coke, you have to be the first to register the name.  How do you resolve this within the law and within any notion of fairness?  Well, with respects to domain names, ICANN basically ruled that if you had a legitimate claim on a name (such as those listed before) – or if you liked a particular domain name for your own personal use (and you weren’t squatting – trying to extort a trademark owner for ownership of the domain name), then it was first-come-first-serve.  The same is now true with these other services.

Facebook’s Voting on ToS

[Disclaimer:  While I’m a Facebook user, I do not know all of the ins and outs of this particular issue, as I’ve not paid too much attention since they rolled back to the old ToS.]

Facebook has announced that they plan to have members vote on the new Terms of Service they’ve been working on.  In fact, they even say that it’s been a group of Facebook lawyers and a group of law students.

Facebook lawyers, with the help of law students, have been reading the 3,000-plus comments, and the administrators of the original protest group against the terms of use changes are consolidating the feedback in a list of “key concerns,” according to Facebook. The company has also sought input from privacy, copyright, and Internet legal experts.

OK, so I’m glad that they’re seeking input from privacy and copyright experts, too.  Even more interesting, though, is that unless 7,000 people submit comments, they’re only going to take the response as advisory.

Facebook will hold a vote on any proposed change if at least 7,000 members submit comments. The results of the vote will be “advisory” if less than 30 percent of Facebook active users participate in the process. If 30 percent or more of active members vote, the results of the vote will be binding, according to Axten.

In theory, that’s very representative.  If the people don’t feel the need to vote, those that do shouldn’t be counted as a representative sample of the entire population.

But let’s also be honest and say that the average teenager does not have a complete understanding of copyright, privacy or any of the other potential legal issues strewn about a Terms of Service document.  To them, music has always been “free”, digital nannies are more effective at stopping them from copying Wikipedia articles for school papers than the fear of punishment, and privacy is something they can control through the use of fake identities online.  It’s not that they’re unable to comprehend, they just haven’t had to do so up to this point.  When given the choice of “Accept” or “Reject” when installing software… how many of you read the language and then click “Reject”?

So while I think it’s commendable that Facebook offer up it’s proposed ToS to the user population for a vote, I think it’s ultimately going to not be an effective means by which the “public” will get Terms of Service that are truly acceptable to them.  The simple truth is that Facebook is a service.   They offer it to the world for free and they have created a Terms of Service document which governs the user’s use.  If the user doesn’t like the ToS, they shouldn’t use the service.  Facebook should have some sort of internal moral compass to not do anything that’s a violation of their user’s rights (even if their users don’t fully understand such rights), but that isn’t a legal requirement.  At the end of the day, Facebook should post it’s Terms of Service in both legal and layperson’s terms – disclosing the good (and more importantly) the “bad”… in detail.

Hopefully, potential users can then make an informed choice about how they wish to use the service.