My life… in real world situations

You’d think this wouldn’t be how it sounds… but they’re pretty dead on.

Baseline Partnership Announced

As others have been, I’m very interested in technologies which can improve the lives of contract negotiators, purchasing managers and other folks engaged in the process of contract review. Dozens of software packages have been released in the last few years which purport to help ease that process. I’ve played with many of them – most end up being focused on document assembly. What I’ve been looking for is a tool that helps when I’ve got a non-standard agreement and want to quickly compare it to my standard preferred language.

This is usually a highly choreographed event. I start with needing a 22″ monitor so I can see two documents side-by-side at 100%+ size (my eyes are getting old). Then, with the proposed agreement on the left and my template language on the right, I systematically move through the proposed agreement and bounce around my template to find the matching sections. I read the proposed language, consider its phrasing, see what can be kept and how I can make my preferred language work without appearing to bloody up the proposed agreement too badly. I redline the proposed agreement accordingly and then turn it back around to the other side. Depending on the length of the agreement, font size and other issues, I typically move at a pace of about 4-8 pages per hour for the complete process.

When I first heard about Baseline, I was skeptical. Baseline Solutions advertises it as a document review and knowledge management tool. You upload your preferred language (the baseline information) and then you can bounce any other proposed agreement off your preferences. The software uses proprietary algorithms to review the wording and match the sections. It looks for common phrasing but also appears to recognize intent. Frankly, I’m not sure how it works, but it does.

After a few seconds, the system returns to me a Word document with track changes turned on showing changes to the document corresponding to my preferred language. The result is that the first review of my prior two-documents-on-the-screen-at-the-same-time exercise is accomplished in a few seconds. The basic review is complete – now I can spend my valuable time reviewing the unique contract issues. I’ve just saved time and produced a better document.

In the first iteration, Baseline was focused exclusively on NDAs, as they’re seen to be the most static of standard agreements. But the newly released Baseline product tackles software licenses and services agreements as well. Added into the product now are two new features, both of which Licensinghandbook is proud to participate. Several sections of the Software Licensing Handbook are available as a Knowledgebase within Baseline. This is like Pop-Up Video for your contract. See a section you’ve never heard of or don’t know why it’s there? The Knowledgebase is there to explain.

Over the years, many folks have asked for my template software license agreement. I’m reluctant to hand it out – it’s not only the product of a decade of refinement, but it’s also detailed enough that failure to use it properly could result in problems. Baseline uses template language as the reference point for comparison, so in a first for Licensinghandbook, I have agreed to allow Baseline to use my template software license language as a template against which customers can bounce their proposed agreements.

Please join me in welcoming Baseline Solutions to the contract management marketplace!

[Disclaimer: My partnership with Baseline provides me revenue based on the use of the Software Licensing Handbook Knowledgebase or the Licensinghandbook Software License Agreement.]

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Novatus Contracts Summer 2009 Promotion

I just received notice that Novatus has created a promotional pricing offer valid from June 1 to September 30, 2009, which includes low-cost licensing options, rapid deployment and pay-as-you-go licensing – no commitments required.  Released in light of the current global economic condition and Novatus’ desire to address prospective client’s budgetary requirements, the best contract management system just became easier to adopt.  To learn more, contact me here (select Novatus from the drop-down menu).

About Novatus, Inc.
Novatus delivers contract, compliance and supplier management software via On-Demand SaaS delivery and On-Premises installation. With a focus on customer driven requirements, mobility and integration, Novatus provides the right fit for companies seeking a proven provider with superior technology who offers cost efficient applications and rapid deployment. Novatus was founded in 2008 by well-respected and globally recognized contract and supply chain industry leaders and is comprised of domain experts who have been top tier software and services providers since the contract management space formed and evolved into a recognized software category and formal discipline throughout the last decade.

Mutuality, or, What’s Good for the Goose is Good for the Gander

In several recent deals I’ve had the very unpleasant tasks of redlining virtually every section of the agreement because I felt that the terms weren’t mutual.  In other words, the language was completely one-sided so that only the document drafter received any benefits under the agreement.  If you’ve never encountered this scenario, these documents are nightmares to go through.  You never really relax and feel like the agreement was written to be fair to both sides, so you start to get jumpy about every little misplaced comma.

Mutuality is a key concern for me.  If a contract is supposed to be an apportionment of risk – a meeting of the minds as well – how would it be interpreted in the event that we had some sort of disagreement?  Would the courts find that we actually had an agreement at all?  Or, using the severability clause, would the court excise much of the agreement and leave only a few basic operable paragraphs?  However you might imagine it playing out, I simply don’t like the feeling that an agreement is all obligation for one side, and all benefits for the other.  So, in almost every clause, I look to make things mutual as much as I can.

This is especially important (and unfortunately starting to be more commonly seen) for Limitation of Liability language.  Make absolutely sure that your party is protected by LoL language.  There are, of course, exclusions to LoL, and those too should apply to both parties.  But do not let an agreement get signed that only caps the liability of the other party. (This happens to be one of the few areas where I’ll use every ounce of control I have to block a deal.)

On the flip side, each parties obligations (and thus, warranties) are at least slightly (and sometimes significantly) different.  Here, mutuality in spirit is what I’m looking for – not an exact duplication in language or deed.  For example a software provider might warrant that their product is four-digit-year compliant (yes, I still ask for this).  But the customer doesn’t have any control over this.  So I wouldn’t want it to be a mutual warranty.  However, the customer can warrant that any information provided to the vendor is accurate and reliable.

Overall, I just watch for balance.  When I don’t see it, I add it.  When I don’t ever feel it, I warn my business owner(s).  When I don’t get it, I suggest looking elsewhere.  Everyone should take this opportunity to review your template agreements.  Are they balanced?  Why wouldn’t they be?  I haven’t said this yet in this forum, but it seems to be turning into my favorite phrase of 2009:  “In negotiations, you can screw someone else.  Once.”  The cost for finding new customers, however, significantly outweighs the cost of keeping old ones.  Write your deals for the long-run (such as by being mutual) and you’ll both be happier.

A Few Licensing Issues with Amazon

Many of the technologies we use every day come with a license agreement of some sort.  You might not even realize that it’s so because of where you are in the transaction chain – either as a buyer or as a seller.  Content, for instance, is created, licensed/sold, packaged, re-licensed/re-sold, bundled, re-licensed/re-sold, and on and on so many times that you can hardly figure out who actually created much of what you read online.  This is important, especially insofar as you want to be sure of who is providing the information that you use to make decisions, but also because as information is licensed/bundled/re-licensed over and over, it’s possible that the content creator isn’t getting what they earned as part of the transaction (namely, credit/attribution and/or payment).

Several services have popped up recently that are allowing content to move from one format to another – especially on Amazon-related products and platforms (ie: the Kindle).  More specifically, Amazon is now allowing blog authors to license content for packaging and distribution on the Kindle, with the blog author receiving about 30% of the revenue generated from the license price.  So, if I were to want this blog to be available as a Kindle subscription for say, $1.99, I would get $.31 for every subscription.  But there’s a problem, Amazon has a license agreement that I would have to accept in order to make this happen.  And this license agreement also gives Amazon the right to bundle and resell my content in other forms, too, without paying me for it at all.  [For a full conversation on this, see this great post by Edward Champion.]

Additionally, Amazon’s current system doesn’t actually even check to see if I’m the owner of the blog I’m submitting into the Kindle Blog service!  So I could create an account, submit any of your blogs as my own, and in just a few clicks, create Amazon entries for your blog’s content – even competing with the “real” listing (if you so happened to have agreed to the terms as well and started using the service).

So, for the record, while I love Amazon for a bunch of reasons, this blog is NOT being made available as a Kindle subscription.  It is, however, being posted ON Amazon as part of Amazon’s author services… so you can read the individual postings if you go to the Software Licensing Handbook page at Amazon.  But if you happen to see it on your Kindle device, you’re paying someone else for stolen content.

Announcing a New Partnership with Novatus

I am very pleased to announce the creation of a new partnership with Novatus Contract Management Systems.  The simple truth is that contract management systems aren’t a fad – they’re a necessity.  If you’re going to get one, then, I would suggest getting one that meets your needs and exceeds your expectations.  I’ve been waiting several years to finally find a system (and a company) that I feel truly delivers on the promises they make regarding their system and provides a product that is best for managing my deals. [Disclosure:  I receive compensation for referrals who actually make a purchase.  Clicking on the links in this article are NOT revenue generating.]

CMS’s are currently enjoying a new life in the procurement and sales contract team arsenals these days.  I don’t think it’s a lack of understanding about their value – from being able to do internal metrics tracking to providing increased value to your clients, a contract management system is a must-have for anyone handling more than one contract per month.  The barriers to adoption have been any combination of installation, scalability, ease-of-use or, as usual, price.

Novatus solves all of them.  First, Novatus comes in different flavors to accommodate anyone’s IT infrastruture – offered both as an in-house and a SaaS solution.  For environments which mandate all in-house solutions (or even if you’re a bit skittish about your data living off-site), you can have a local installation of the Novatus system completed by their expert professional services staff.  On the other hand, if you don’t want to manage the perceived in-house headaches or ongoing system management tasks, the SaaS solution is right for you.

Scalability is equally simple.  You can start with a small number of users and ramp up based on need and on internal adoption without batting an eye.  What’s even better is that the system is at full-power from the first user on the system – no crippled versions or limits exist simply because you’re not a large installation.

Ease of Use sometimes seems like it should be a given in today’s software world.  But what most people discover with even long-time applications is that it’s not the basic functionality that’s hard to use, it’s everything else.  This is the reason why most people don’t use more than about 10 main functions of their word processing application and leave everything else undiscovered.  Wanting to not only be the “hairclub president, but also a client”, I asked for a full version of the system so that I could manage my own contracts.  From the point where I got the e-mail notification of my login credentials to the point where I had all of my contracts in the system and the various options configured the way I wanted them to look only took me about a day (I don’t have that many contracts, so most of the time was spent doing minor configuration tweaking).  Out of the box, this product just plain works – and it’s easy to customize to your specific needs.

Oh yeah… price.  In the many years that I’ve been advocating the implementation of contract management systems, the biggest barrier, especially for organizations with an underdeveloped contracting team, is ALWAYS price.  No one wants to risk buying a lot of access only to discover that the application has no value or that no one wants to use it.  Novatus solves this problem by simplifying the user access model (there are only 2 classes of user – the ones that can enter data and the ones who can just look).  You can start your system off with as few a number of users as you possibily could want (yes, just 1 full access user can get you going).  Combined with the SaaS model, there is virtually no risk to building your system and adding more users as you gain internal traction based on demonstrable evidence of the system’s value.

If you’re in the market for a new or replacement CMS, visit Novatus and tell ’em Jeff sent ya’.  Or contact me (or them) for more information.

Writers?

Are there any negotiators, contract professionals or sourcing folks (or anyone else for that matter with a voice on a particular subject) out there who would like the opportunity to write an article to appear here on the Licensinghandbook Blog? I’m looking for a few good guest posts – on topics of virtually anything you can think of that’s related to the general nature of this site.

If you’d like the chance to reach a rather substantial audience on a particular subject, now’s the time to act!  🙂

Simply contact me and let’s get you booked.

~Jeff

Software Licensing Handbook in Sales Contest

Ok, so your reaction to the title would probably be mine, too: “who cares if the SLH is in a sales contest?”.

Well, perhaps you will… if you were thinking about buying a copy, Lulu is offering a 10% discount off the list price for this May sales contest event.

To take advantage of the sale through the month of May, simply order here and at checkout, enter code “MAYCONTEST10”.

Thank you all for your support (whether you’ve bought the book, are buying one, or just read my little missives here)!

The reason I draft language the way I do

How I love xkcd.com

The Tao of Contracting

In last weeks’ post, I stated that contracts don’t instill trust.  Today, FirstDrafter (nom de plume of licensinghandbook reader D.C. Toedt) has a post where he disagrees with Ken Adams and says that contract terms need explanation as necessary.  It should come as no surprise that I agree with Ken, but not based on Ken’s reasoning.

In Ken’s world, efficiency and breviety (with clarity of thought) are key.  His opinion is that contract terms shouldn’t have explanations because a) it’s restating what was already said, b) confusion might result from the restatement.  Ken clarifies that examples may be useful to show how a particular clause would play out (such as a pricing calculation) and that explanations might be warranted in specific situations where there is evidence to suggest that a particular set of “magic words” (contract phrasing you think necessary to get a ruling in your favor in the event of a dispute) might not be as magic as you believed.

D.C. seems to consider things from another perspective.  Say, for example, we contract, including explanations as to our logic for selecting the particulars of the transaction, and then we have a disagreement.  We go back to the document to negotiate a settlement (or we go to court seeing judicial review).  In D.C.’s process, the reviewers (us or the judge) can read the logic, using it to help them decode the language and find a solution.  However, I’m hard pressed to think of a situation where that would lead to real progress.  In my mind, the logic is part of the contract language itself (not the Gemara – Talmudic commentary on the language) – so if the explanation explained the reason for the “how”, the “how” is still the process which must be followed.  So even without the explanation, the “how” is still left undisturbed after judicial review.  This goes back to Ken’s desire for contract efficiency – restating simply leads us to the same conclusion we would’ve had without the restatement.

I’ve been giving this a lot of thought recently, as I’ve felt quite torn over strict contract language and the need to try to write in Plain English™.  Interestingly enough, comments in Ken’s post also suggest the need for explanations in consumer contracts.  But I think it’s worth asking whether we can take Ken’s desire for simplicity and efficiency to the next level and write Plain English™ sentences throughout an agreement – eliminating jargon, Latin, magic words and other staples of contract drafting.  (This is central to Ken’s entire specialty.  The MSCD is his effort to help us write better agreements.  If you draft/redline agreements but don’t own it, you should.  By his own admission, it’s not perfect – but it’s a long way down the path towards perfection.)

Since I don’t have Ken’s laser-like focus on the language itself, I’ve been pondering whether a non-binding contractual sidebar would help the parties understand the intent behind the language.  While there are perhaps good reasons to have explanations in contract terms – my conclusion ends up more in direct opposition to D.C.’s supposition that a party might later decide that they don’t like or want to do something in the contract the way it was contracted:

Tough luck.

A contract is NOT a guideline document or a suggested course of action.  The essence (the tao) of a contract is that it’s a set of rules that both parties agree to follow.  If you don’t want to be told how to do something, don’t sign the agreement.  If you think that there might be improved methodologies in the future, don’t decide on the how – focus on the end result instead.  But if you do, in fact, agree that we are going to act in a particular way, at a particular time, to achieve a particular result, for particular consideration, for a particular duration … and then you decide to unilaterally choose a course of action that countermands one of our agreed upon particulars … you should expect me to react in an unpleasant manner. If you don’t understand the terms (and/or can’t figure out how to use the “what if” game to see how the language would play out in real life), don’t sign the agreement.

Granted, D.C. is correct that it takes people to carry out the instructions and judges to interpret the disagreements.  But they don’t need the why, either.  If the contract particulars are problematic in any way, shape or form, there is a process to change it: the contract amendment.  Until then, however, the only why you need to remember is that “that’s what was agreed at the time the contract was signed.”  And while this sounds like a question and answer session with a two-year-old, that’s really the only answer that applies.