Archive for the ‘Software’ Category

94labs 2011 Summer Class Launch Event

94labs incubator (formerly Spreenkler incubator) recently showcased the fourteen companies graduating from its summer session. The event was hosted at the Wisconsin Institutes for Discovery and featured the founders of the fourteen companies as well as the five companies emerging from the second-stage accelerator class. Joe Kirgues, Greg Meier, Steve Glynn, Emmanuel Mamalakis and others from 94labs led the event.

In introducing the 94labs incubator to the more than 300 attendees, co-founder Joe Kirgues explained the four main goals for companies going through the incubator: (1) develop a scalable business model, (2) build a software prototype, (3) identify and talk with potential customers, and (4) create an investor presentation. The idea is that the companies then leverage the capital, partnerships, and customers that they gained while in the program.

Each of the founding teams gave a four-minute pitch with slides. Steve Glynn emcee’d the program. Despite the stereotypes about young engineers, computer science, and math major graduates, the speakers were dynamic and articulate. Each team wore matching t-shirts with their company logo.

Here are short synopses of each of the companies:

Jungol

Jungol offers an online platform to enable organizations to work together, with tools like to-do lists, file sharing and discussion boards, increasing efficiency and collaboration, leading to greater donations.

Door 6

Door 6 is developing a mobile game platform for making hard core games for mobile devices. The company was a finalist in Google’s Android Developer Challenge 2.

Quasi Electronics

Quasi Electronics offers a web-based tool and social community for non-professional market to design, build and order circuit boards. The tools on their site will facilitate the design and execution of electronics projects, targeting the rapidly growing non-professional market of students, DIYers, artists, and inventors.

Servique

Servique is an online platform for finding commercial and residential contractors. Their first city will be Milwaukee.

Open Education

Open Education offers a math learning software for teachers to create assignments online, where students can show their work, allowing teachers to track their progress.

Socle6

Socle6 provides a private social network that allows users to better manage the dissemination of pictures and messages that, through traditional social media, often fall into the hands of recruiters, ex-friends, and others who should not have access.

Shindig

Shindig offers a crowd-powered event booking platform that connects attendees, artists, and venues by allowing people to choose who they want to see perform where and when, by leveraging existing social media networks.

SASR

SASR has an iPad application called LivePaper for sharing class notes and communicating with professors and other students online, making studying more efficient and social.

ScioMD

ScioMD offers software to produce understandable lab test reports for patients. The software will compare a patient’s results with others in their demographic as well as give suggestions.

StyleShuffler

StyleShuffler offers a tool that gives personalized clothing suggestions, building on the customer’s preferences.

72 Web Design

72 Web Design offers professional campaign sites for small or local races, an alternative to more expensive web design firms. Their tools enable customization, online volunteer sign-up, and online political fundraising.

Searium Studios

Searium Studios is developing challenging multiplayer role-playing video game with unique, customized character and an immersive story targeting avid gamers, to be released on PC and xBox platforms.

PinPoint Software

PinPoint Software offers an expiration data management software called Date Check Pro, which tracks inventory expiration dates based on product purchases, saving grocers time and keeping expired items off of the shelves.

Jawnt

Jawnt is a social media related service that offers local hosts to provide authentic tours to travelers. The idea is to create unofficial and unique tours by giving people a “local’s view” of things to do.

The 94labs launch event was one of eight events that took place between August 18th and 27th as part of the Forward Technology Festival. The festival brought together up-and-coming and serial entrepreneurs, inventors, investors, and others plugged into the technology community.

A key financial backer of 94labs, Emmanuel Mamalakis, wrapped up the program with remarks that drew applause – that there’s no reason why Wisconsin can’t compete with the coasts in being a breeding ground for ideas, and that changing the culture of Wisconsin requires community, legislative, and family support.

September 5th, 2011 by Macy Stoneback | Permalink | No Comments

 

The Confusing World of Joint Ownership of Intellectual Property

A confusing topic for many entrepreneurs is joint ownership of intellectual property.  It often comes up in connection with joint development arrangements, subcontracting portions of work, joint ventures, and other collaborative projects involving intellectual property development, whether it be in connection with software, cleantech, medical device, drug development, or other technology-based initiatives.

Joint ownership of intellectual property can result when two (or more) people co-invent a patentable invention or co-author a joint work of authorship.  Joint ownership can also come up as a matter of a compromise in a contract.

While it may seem fair and a reasonable compromise to declare that all intellectual property developed as part of a collaborative project should be jointly owned, many of the implications of jointly owned intellectual property are counterintuitive.  For instance, joint ownership related to patents is very different than joint ownership of copyright.

So, let us go through the basic implications of joint ownership by the default rules in the United States for patents, copyright, trade secrets, and trademarks.

Joint Ownership of a Patent

In the absence of an agreement to the contrary, each joint owner of a patent may make, use, offer to sell, sell and import the patented invention without the consent of the other joint owners, provided that the joint owner does not infringe the patent rights under a separate patent.  Notably with patents, there is no duty of accounting among the owners of the patent.  In other words, one owner can profit from the patent and does not have to share  the proceeds of the profits with the other owner(s).

To exclusively license a patent to another, however, generally requires the consent of all the owners of the patent.  Also, the consents of all owners of a patent are generally needed for patent enforcement.  This means that in many cases, any single owner can limit enforcement of the rights under the patent.

Joint Ownership of Copyright

Analogous to patents, each owner of a copyright is free to copy, distribute, prepare derivative works based on the joint work, and exercise the other exclusive rights of copyright.  Unlike patents, however, joint owners of copyright do have to account to one another for profits they receive in connection with the jointly owned copyright.  In other words, each owner has to share the profits with the other owners.

To exclusively license copyright requires the consent of all the owners of the copyright.  Also, unlike joint owners of a patent, one owner of a copyright cannot block another owner of that copyright from suing for infringement by simply refusing to join in the suit.  While each individual owner has the right to enforce the copyright in preventing others from using the copyrighted material, another owner can circumvent that enforcement by simply licensing to the “infringer” the right to use the copyrighted material.

Joint Ownership of a Trade Secret

The law surrounding joint ownership of trade secrets is not as well established as it is for patents and copyright.  As with copyright, joint owners of a trade secret likely have to account to one another for profits related to the trade secret.  Although, that conclusion is not entirely clear by case law or statute.  To exclusively license a trade secret likely requires the consent of all the owners of the trade secret.  Sometimes joint ownership can make maintaining secrecy difficult, however, which if compromised could jeopardize the trade secret status.  Although in some contexts, joint owners may have an obligation to one another to keep a trade secret confidential.

Joint Ownership of a Trademark

While joint ownership of trademarks is possible, it is somewhat unusual in that joint ownership is counter to the fundamental purpose of a trademark, which is to serve as a designation of origin from a single entity or person.  A more common strategy is a jointly owned single entity owning the mark.  When there is joint ownership of a trademark, however, as with copyright and trade secrets, joint owners of a trademark likely have to account to one another for profits related to the mark.  To exclusively license a trademark requires the consent of all the owners of the trademark.

Other Issues of Joint Ownership of Intellectual Property

There are a few other general things to keep in mind with regard to joint ownership of intellectual property.  As with the status of joint ownership itself, the parties can modify many of the default rules by addressing the particular issues in a contract, subject to certain legal restrictions such as those related to antitrust.  For example, the parties can decide that only one party is in charge of registration, maintenance, and prosecution of the intellectual property and that the parties must share all royalties in a certain manner (e.g., 70/30).

In addition, the default rules outlined above are quite different in many foreign countries.  For example, in Canada and the U.K., in the absence of an agreement to the contrary, a joint owner of a patent, while having the right to exploit the patented invention, has no right to license it to a third party without the consent of the other owners.

While joint ownership makes sense in certain contexts, many times it does not.  Often joint ownership sounds good in concept at a very high level, but when emerging companies understand the implications of joint ownership of intellectual property they frequently try to avoid it or they contract out of many of the default rules.

July 26th, 2011 by Matt Storms | Permalink | 5 Comments

 

Who Owns the Rights to Customer Feedback?

Suppose a customer proposes an idea to improve the software or SaaS offering of a company. The company likes the idea so much that it integrates the idea into its next upgrade. The question becomes, who owns the idea that is integrated into the software or SaaS offering?

As a general rule, the person who creates an idea, authored work, invention, or process, owns the related intellectual property.  There are exceptions to the general rule.  But, in the software and SaaS arena involving licensors and licensees, the general rule applies in most circumstances.

With ownership established by law, there are several ways to handle the intellectual property rights related to customer feedback through contracts and policies.  Here are some of the approaches companies take:

“We don’t want your ideas”

One approach is to not solicit or accept customer feedback.  This is the approach that McDonald’s has taken with regard to its Customer E-mail Center Terms and Conditions.  A rationale for this approach is to avoid confusion or conflict of ownership if a customer has the same idea as someone within the organization.  As is the case for other organizations that have adopted this approach, McDonald’s policy is that if a customer ignores McDonald’s request that they not send ideas or suggestions, the customer grants McDonald’s a license to use, copy, and display whatever the customer provides to McDonald’s.  For a variety of reasons, such as the negative public relations associated with not wanting customer suggestions or ideas, most SaaS and software companies do not choose this approach.

“We own your ideas”

At the other end of the spectrum, the recipient of the ideas, authored works, inventions, or processes can take the position that everything that is submitted to the recipient is owned by the recipient.  One sees this approach in a variety of contexts, especially where either contracts or terms of service are not heavily negotiated or where the relevant idea, authored work, invention, or process created will have little value to the creator.  Radiant Systems is an example of this approach.

“We can use your ideas”

Somewhere in between the above two alternatives is the concept that while the creator of the idea, authored work, invention, or process owns it, the recipient has a royalty-free right to use, copy, and display it.  This allows the company to use the customer feedback, but the customer retains ownership of it.  Adobe, Hewlett Packard, SAP, YouTube, and others take this approach with at least some of their offerings and general public feedback.

Ignoring the issue

Sometimes contracts and terms of service ignore the customer feedback issue.  Presumably, this is just an oversight or the companies are taking the position that they at least have an implied license to the feedback.

For many businesses, listening to and incorporating customer feedback into the product or service improvement process not only is good for sound customer relationships but it just makes good business sense.   Similarly, for software and SaaS companies, ensuring that the companies’ contracts adequately address intellectual property ownership and license rights to that customer feedback makes good legal sense.

July 6th, 2011 by Matt Storms | Permalink | No Comments

 

Spreenkler Seed Incubator Launch Night

Last night I attended the Spreenkler Launch Night in Milwaukee. What a great event! It marked the culmination of months of hard work by the inaugural class of the Spreenkler seed incubator by showcasing the graduating class of founders. More importantly, it marked the initial concerted effort in the area to use a systematic approach to create, refine, and commercialize multiple software/Internet-based products and services. And probably even more importantly, as evidenced by the event last night, the incubator brought together a community of like-minded people from all parts of the region and ends of the political spectrum who are motivated to work together to create exciting new technology companies in our area.

Here’s some information about the new companies:

Eventcopia

The first company that presented was Eventcopia. The company ties local businesses with customers by linking existing event calendar systems. It enables companies to provide more detailed information to their customers about the customers’ particular upcoming events, including things to anticipate in connection with the events and special pricing and offerings that the customers can take advantage of in connection with the event. Eventcopia has at least four beta customers in the Milwaukee area.

KnockDown Ninja

KnockDown Ninja is a company that “puts butts into seats.” It uses social media tools in a unique way for event promotion. Specifically, it uses peer-to-peer promotion and rewards those who promote an event through lower prices for the event for the promoters and their friends. The company takes a commission on sales and is current in beta testing.

CrowdSling

The third company that presented was CrowdSling. The company organizes and validates opinions. How so? They provide a platform to users to identify issues and for others to take supporting or contrary positions. CrowdSling also enables others to evaluate the quality of the opinions and the ability to sort the opinions by how strong the opinions are rated.

ZoomShift

ZoomShift offers a web-based staff scheduling tool. It enables companies like restaurants to create and communicate schedules to employees within in a couple of minutes, rather than a few hours. It also allows employees to change and swap schedules through the application. It recently landed its first beta customer.

Offermation

The final company that presented was Offermation. Offermation focuses on online advertising for small business. It uses a wizard web-based system to create and monitor online advertising campaigns. It covers online advertising, coupons, text messages, and other advertising mechanisms.

Kudos to Greg Meier, Steve Glynn, Joe Kirgues, Emmanuel Mamalakis, and the rest of the Spreenkler team for their efforts. Exciting stuff. Well done.

May 13th, 2011 by Matt Storms | Permalink | No Comments

 

Wide Adoption of Electronic Signatures and Electronic Contracts Overdue

While almost a decade has passed since the federal Electronic Signatures in Global and National Commerce Act (ESIGN Act) became law, most companies have yet to take advantage of the opportunities that the act affords. Other than online click-wrap license agreements and Internet sales terms and conditions, most companies are still entering into most of their agreements on paper.  Having moved beyond faxing in most cases, the norm these days for most businesses is to print, sign, scan, and email the contract. In large or important agreements, companies typically also exchange multiple sets of originals, so that each side (and their legal counsel) have original copies. In most situations, this elaborate process is unnecessary.  For a variety of reasons, we often encourage clients to go paperless with their contracts when appropriate. 

Software and Internet Services that Assist with Electronic Contracts

There is some encouraging news that going paperless in the contracting process may become more prevalent.  Adobe recently released a free beta version of its online eSignatures software-as-a-service (SaaS).  The SaaS offering is easy to use and may spur more adoption of e-signature technology.  Low cost competitive products from DocuSign, Arx, and AlphaTrust are also worthy of consideration.  These and other e-signature vendor products offer the following benefits:

  • E-signatures speed up the contracting process.   The extra steps of printing for signature, scanning, preparing a cover letter/fax, and mailing/faxing are removed. 
  • E-signature service can be accessed virtually anywhere.  All that the parties need is a computer with an Internet connection.  No need for the traveling executive to find a printer and scanner/fax or have the hotel staff print the document, prepare a coversheet and fax the signed document back. 
  • Electronic contracting saves paper.  There is no need to print the agreement, so it supports the virtually paperless office, such as ours.

In addition, traditional concerns over security have mostly been allayed.  The e-signature vendors typically offer one or more security measures to authenticate the sender and verify that the document has not changed since it was signed.  Many e-signature vendor offerings are SAS 70 Type II compliant and upload and download over an SSL encrypted channel.  Audit trails show when and by whom documents were sent, viewed, and signed.  After signing and downloading, with most of the products, the party sending the contract typically has the ability to delete the electronic contract from the cloud.

Laws Related to Electronic Contracts

Numerous laws in the United States and abroad recognize the legitimacy of electronic signatures.  The federal ESIGN Act and Uniform Electronic Transactions Act (UETA) serve to establish generally the legal equivalence of electronic records and signatures with paper writings and manually-signed signatures, removing barriers to electronic commerce.  Forty-seven states have adopted the UETA, a model law for states to enact to cover contracts governed by state law; the remaining states, New York, Illinois, and Washington, have each adopted their own statutes governing electronic transactions.  Under the UETA, an electronic signature is attributable to a person if it was the act of the person, which can be shown by the effectiveness of the security procedures for signature authentication and the context and surrounding circumstances at the time of the document’s creation.  No one can be required to use a digital signature or to accept a digital signature.  Besides the United States, the European Union has adopted the Electronic Signature Directive (1999/93/EC) and numerous countries have adopted electronic signature laws.   

How Electronic Signatures Work

These are the basic steps to send a document for signature using an electronic signature solution.  The initiator sets up a password-protected account, uploads a document, types the email addresses of the recipients, composes a short cover note (if desired), clicks to sign (or chooses to sign last), and sends.  Recipients receive an email with the customized message and a link to a document to sign.  Recipients are not required to pay to use the electronic signature service, but they may need to set up an account.  After completing any required authentication checks, they click on the link, review the document, and click to sign and send.  After the document is fully signed, all parties receive an email with a link to the document with digital signature stamps from each signing party.  In the case of Adobe’s eSignatures SaaS offering, Adobe will apply a certifying signature, appearing as a blue ribbon, indicating that the document has not changed since it was signed. 

Additional E-Signature-Based Offerings that Facilitate the Electronic Contracting Process

E-signature vendors with low-cost software or services offer many of the following additional features (some of which Adobe may incorporate into later versions):

  • Signatures in multiple places and on specific lines (whereas Adobe’s eSignatures SaaS offering just appends a signature page to the end with all the electronic signatures)
  • Fill-in-the-blank forms and agreements, guiding receiving parties through the document with signature flags, initial flags, and instructions, and preventing a party from signing a document with an incomplete blank
  • Ability to compare the signed document to the encrypted hash captured at document signing to confirm that the signature is valid and the document has not been modified (whereas Adobe’s blue ribbon indication is immediate)
  • Signing parties other than the sender do not need to subscribe to the service (free)
  • Folders to deliver multiple documents in logical groups
  • Workflow processes for internal approvals
  • Access via mobile devices
  • Optional multi-layered authentication, such as passwords, ID checks administered by third parties with questions from public and private databases, security fobs, etc.
  • Integration with business enterprise software 
  • Server-based as well as hosted solutions
  • Custom branding and instructions 
  • Optional behind-the-scenes digital signature cryptology

Using Digital Signatures for Additional Security

A subset of electronic signatures, digital signatures provide more checks to ensure security, but more time and cost can be involved in administering them.  Digital signature technology can also be used to control who has access to a document or who can sign or certify it.  Digital signature technology is the gold standard of security in terms of validating the authenticity of the signature and preserving the integrity of the document.  This is due to the secure method of locking and unlocking the signatures on the document.  A digital signature, also known as a digital ID, requires a private key of the signer and a public key for the receiving party to validate the signature.  Many large organizations implement a public key infrastructure to issue, authenticate, and revoke digital IDs used for digitally signing documents.  Most receiving parties require that a certificate authority, such as VeriSign or GlobalSign, validate the authenticity of the public key.  There are fees in the hundreds to thousands associated with using a Certificate Authority.  David Youd explains digital signature cryptology in simple terms and pictures (http://www.youdzone.com/signature.html).   While it is not difficult to establish a digital ID or validate another party’s digital IDs, some education and administration is involved. 

When to Use Handwritten Signatures vs. Electronic Signatures on Contracts

Although electronic signatures are in most cases recognized as being equally valid as handwritten signatures, there are occasions when handwritten signatures may be more appropriate.  When doing a substantial deal with a party in a more formalistic country, such as Japan, China, Spain, and Italy, a personal signing ceremony can be a culturally sensitive choice.  Parties might also prefer to sign in person or exchange wet ink signatures when stakes are high or emotions run deep, as with the sale of a business.  In addition, under law, there are certain types of agreements that cannot validly be signed electronically.  For example, in many places, wills, testamentary trusts, family law documents, and U.C.C. documents must be signed by hand.  If in doubt as to whether a contract may validly be signed electronically, check with your attorney first.  Also, government regulators in some highly regulated industries such as pharmaceutical and financial services regard the use of digital signature technology favorably for regulatory and legal compliance. 

Just as signing and emailing documents became prevalent with widespread adoption of PDF files and improvements in scanners, so, too, are electronic signatures likely to become more mainstream as people discover the increasing efficiency and security of e-signature technology.

June 4th, 2010 by Matt Storms and Macy Shubak | Permalink | 2 Comments

 

Effective Contract Management

Effective contract management can save a company time and money and mitigate risk. Even so, often after companies painstakingly negotiate agreements, they frequently file them away and move on to the next business negotiation without giving them much further thought. Getting control of contracts then can become a fire drill after deadlines are forgotten or when a potential strategic partner or acquirer wants to look at a company’s contracts.

Contract management is often ignored or relegated to the backburner due to more pressing daily demands or delegated to someone without the time or ability. Plus, for some companies without relevant expertise or time, it can be daunting to select a contract management solution and integrate the company’s contracts into the management tool. The earlier a company develops discipline in managing its contracts, the earlier it will reap the powerful rewards, including the ability to quickly and easily do the following:

  • anticipate expiration and renewal dates
  • manage its own deliverables
  • monitor third party performance
  • monitor and understand trends within recurring contracts
  • produce custom reports based on unique search criteria

Having a good contract management system may also speed the due diligence process of a significant business transaction, as the contracts will have already been reviewed for completeness, summarized for searching and reporting purposes, and scanned for ready delivery. With more sophisticated contract management systems, not only are executed contracts managed better, but the contracting process on the front end can become more streamlined and efficient and yield higher quality and consistency among contract terms.

Variables to Consider when Selecting the Appropriate Contract Management System

When selecting a contract management system for an organization, it is important to consider both the complexity of the organization’s contracts as well as current and anticipated future needs of the organization. Here are some considerations:

  • How many people are involved in contract administration, and how many people need to have read-only access?
  • Do the users need to have electronic access to the agreements?
  • Do the users need to have access to agreement summaries?
  • Is it desirable for the agreement text to be searchable as well as the summary?
  • Are there certain controls the organization would like to have in limiting access by some people to only certain types of contracts?
  • How comfortable are the users with spreadsheets, databases and vendors’ applications?
  • How many contracts, what types of contracts, and what variations in those contracts does the organization have?
  • What key elements of a contract does the business want to monitor?
  • Are email reminders of key dates needed?
  • How important is it to have a turnkey solution that provides customer relationship management and full contract lifecycle management, including a contracting approval process?
  • Is it desirable to use a hosted solution as a document repository to free up space on the company’s network?
  • What is the budget?

Depending on the company’s current and anticipated needs and desires, the solution may be a simple spreadsheet, a homegrown database, a licensed software application, or a web-based hosted service. Ideally, the solution should be scalable so it can grow with the business, or at least the data should be easily exportable, in case a different contract management system is more appropriate as the business evolves.

Using Spreadsheets for Contract Management

A simple spreadsheet is better than nothing and may suffice if the business has relatively few contracts or many of a similar, simple standard form. The advantages of a spreadsheet are that it is inexpensive and easy to use. A spreadsheet can also be supplemented by scanning the agreements as text searchable PDFs. However, a spreadsheet has limited or no functionality to provide email reminders, tailored permissions by document or category, multiple non-standard contract elements, advanced searches, and various reports.

Using Databases for Contract Management

If the business has an employee or advisor experienced with creating databases, that person could create a tailored database for the business, with specialized contract clause fields, a user-friendly form interface, and customized searches and reports. Vendors’ database products frequently offer greater functionality, such as the following:

  • email reminders
  • tailored permissions
  • customizable fields
  • ability to upload agreements and make them searchable
  • auto extraction of key data
  • sophisticated searches and reports
  • an unlimited hosted document repository
  • customer support
  • military-grade security

Pricing can be surprisingly reasonable. It depends on the sophistication of the software, the number of users, and whether it is a software license with one-time license fee and annual maintenance fees, or a hosted solution with ongoing subscription fees that include customer support.

Designating a Contract Administrator

Equally important as choosing an appropriate contract management tool is designating one or more qualified administrators to assume the contract administration function. The administrator(s) should (1) be able to interpret and summarize legalese, (2) be comfortable with the contract management system selected, and (3) have the time to dedicate to contract administration. Consistency of data entry wording is also important for helping retrieve data through searches of summaries. As the adage goes: Garbage In-Garbage Out! If the business does not have a qualified contract administrator in-house, a corporate paralegal at a law firm can fulfill that role or train someone within the organization to serve in that role.

While implementing effective contract management takes some planning and resources, for most businesses the benefits are well worth it. The earlier a business commits to contract management, the sooner it will begin reaping the rewards.

February 26th, 2010 by Macy Shubak | Permalink | 6 Comments

 

Developing Your SaaS Agreement

An increasing number of traditional software and hardware companies are accepting the idea that software as a service (SaaS) is here to stay for some time. In September, Oracle announced that it was significantly increasing its on-line, subscription-based software tools available for middle market companies. Salesforce.com and Cisco announced last week a partnership that brings together Salesforce.com’s online customer service software with Cisco’s IP telephony. The service, called “Customer Interaction Cloud,” is designed to provide a complete, cloud-based customer service offering for small to medium sized businesses. Even Dell, with its recent acquisition of Perot Systems, has signaled an interest in expanding its presence in the SaaS space. From a customer’s standpoint, SaaS generally offers quick deployment, low upfront cost, easy management and scalability.

Legal Difference Between Traditional Software Licenses and SaaS Agreements

Before delving into the SaaS market, it is important for traditional software companies (whether that be off-the-shelf product companies or customized software developers) to understand the differences between a typical software license or software development agreement and a SaaS agreement. At a fundamental level, what is being conveyed in a software license or software development agreement is different than a SaaS agreement. A software license or development agreement typically grants either a limited or exclusive right to use the software. In some cases, they include an assignment or transfer of the actual code from the developer to the purchaser of the software. A SaaS agreement, on the other hand, typically grants only a limited right to use a “service,” with no rights to the underlying software.

Key elements of a SaaS Agreement

With the legal difference between the two business models in mind, as well as the practical differences (web based offering versus an on-site thick client or server-based offering), below are some highlights of the provisions of a typical SaaS agreement:

Subscription for a Service.

Typically, SaaS agreements provide for a subscription to a service for a specified period of time. Many states give this structure more favorable sales tax treatment over traditional shrink-wrap software license agreements.

Performance and Up-Time Guaranties.

Most SaaS agreements address at least a base level of performance and functionality requirements of the service. For more sophisticated SaaS offerings, it is common to see Service Level Agreements (SLAs). The SLAs typically address issues like site and application downtime limits, support response times, and system response times.

Privacy and Security.

SaaS agreements usually address privacy and security issues as the SaaS provider typically holds its customers’ sensitive data. SaaS vendors generally provide some base level of assurances of privacy and security, even in low price SaaS offerings. For the large and more sophisticated offerings or where there are unique confidentiality concerns, the privacy and security provisions in the SaaS agreement can be very detailed. For example, many public companies require that a SaaS vendor’s systems and offerings be compliant with Statement on Auditing Standards No. 70 (SAS 70), which is a rigorous audit standard for controls on accuracy and security.

Data Backups and Data Porting.

In most sophisticated SaaS offerings, the SaaS agreement should address data backup, redundancy, and disaster recovery. Similarly, many customers of sophisticated SaaS offerings will want assurances on the ability to move the customer’s data either to an internal system or another vendor.

Renewals, Termination, Fees and Payment Terms.

Having a continuing relationship requires that the SaaS agreement address items like automatic renewals, termination (who has the ability to terminate upon how much notice), fees (when and how often charged and for what and the ability to change), and payment terms.

Obviously, there are other provisions as well, such as warranty disclaimers, indemnification, limitation on liabilities, export laws, etc. How much these terms vary from traditional software licenses or development agreements are dependent upon the particular SaaS offerings.

October 16th, 2009 by Matt Storms | Permalink | No Comments