Define the term “force majeure” for me. Looking online, there are several:
- it’s French for “superior force”
- act of God: a natural and unavoidable catastrophe that interrupts the expected course of events (WordNet)
- a common clause in contract which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties (Wikipedia)
- an unavoidable catastrophe (Wiktionary)
So what’s the common theme? It’s the ability to AVOID a particular set of actions. In other words, force majeure events are those which are unavoidable or unforeseeable. If you only click one link above, do the one for Wikipedia and learn about the three-part test in French and international law for what constitutes a force majure event. UCC Section 2-615, “Excuse by Failure of Presupposed Conditions” and the Restatement of Contracts 2d, Section 261 “Excused Nonperformance” also include multi-part tests.
But we’ve gotten lax in contract drafting in the US and folks have assumed that force majeure clauses (those that allow a party to not perform as a result of one of these types of events) were continually written with actual unavoidable events listed. In fact, almost every force majeure clause I now see contains at least one, if not more, of the following things as force majeure events:
- strikes/labor disputes
- telecommunication difficulties
- supply chain problems
- terrorism and war (sometimes even phrased as “acts of the public enemy”)
- government regulation
Unfortunately, these are not force majeure events. Why? Because most of them can be planned for… and even something like terrorism and war (especially when they’re happening right now), should be planned for. If you can plan for them, they’re foreseeable. And if they’re foreseeable, they’re not unforeseeable. See where I’m going with this? 🙂
So when you strike these items out of the force majure event clause, you’re going to get push back because people don’t want to be responsible for planning in all eventualities. You’re not asking them to do it. Rather, you’re asking that contract performance not be hindered or halted as a result of things that are capable of having a backup plan. Which means that you could, if you were so inclined, draft language which allows for these items to be force majeure only if they were part of a backup plan that still was impeded. In other words, you’ll give these items force majure weight if the party claiming force majeure can show that they had planned for them properly, but still ran into trouble.
Oh, and by the way, force majeure also isn’t one-size-fits-all. Would you EVER list telecommunication difficulties in a contract with your telephone service provider? Additionally, force majeure protections should benefit BOTH parties, even if one party’s sole obligation is to cut a check. Payment can be made quite difficult by floods and hurricanes, just ask the good people in Louisiana, Alabama and Mississippi about business deals during Katrina.
Filed under: confidentiality, contract terms, force majeure, governing law, information security, law
Holly Towle wrote an excellent article on the boilerplate contract language issues that might now exist in your contract language. Read the article… consider the issues… review your templates. Make some changes. Of course, you can always just call me and I’d be happy to review your contracts for you. 😉
Filed under: communication, contract management, contract terms, contract types, current events, fun, law, negotiation, risk matrix, SL Ed Series, TWoTW
These are the discussions that happened around the web this week – maybe you already read about them, maybe you need to again. Come join the party on twitter (follow me here and you’ll participate in the conversation live.)
I also realized that many of you might have no idea what you’re seeing below. Sorry. These are “tweets”, 140 maximum character messages sent via Twitter. Within the Twitterverse individual users follow others and have followers (think of it like overlapping Venn diagram circles). To read a tweet, you have to wade through a bit of jargon used to make the most of the 140 character limitation. “RT” for example, is shorthand for “Re-tweet” and the @____ is the username of some other individual on Twitter. Combined together, then, “RT @_____” means that someone else wrote a tweet that I found important and I now want to forward along to my followers. The URL’s are then also shortened by shortening services like bit.ly to make the most of the character limitation, too. Lastly, you might see “hash” identifiers “#______” which are ways to tag tweets of a particular flavor for easy searching later and “<” which means that I am commenting on what came before it.
- RT @TradeSecretLaw: Vary the Speed and Timing of Your Negotiations for a better deal. http://bit.ly/XP5W9 < Good. Are there better examples?
- RT @johnlwatkins: New blog post: Why Judge’s confidentiality rule may increase arbitration and mediation. http://bit.ly/j9PYj
- RT @TOpatentlawyer: Microsoft patents a way to make more money from MS Office http://ow.ly/tGOg (via @slashdot)
- RT @dahowlett: Qu: do software buyers make rational decisions? Methinks ‘not often.’
- The Cloud Computing Consultant: http://bit.ly/2lSgVQ (via @dealarchitect) < Hilarious and NSFW.
- MS attempts to patent software licensing based on time: http://bit.ly/kRcsO < I hope there’s a solid prior art search (and practice).
- RT @glambert: “When is a blog a sponsored endorsement?” (via DLA Piper) http://bit.ly/peWyj
- RT @CopyrightLaw: “NBC And CNBC Sued For Infringing Use Of…FONTS” http://tinyurl.com/yfob39h
- RT @jayshep:Best law school advice? “Say hi to Heidi. She’s in our section.” Been married to her 13 years with 2 beautiful daughters.< 🙂
- RT @TradeSecretLaw @worklawyer: Don’t lecture. Tell stories. Emotion is more persuasive than facts. < works w/ negotiation, too.
- RT @matthomann: Three great questions to help you remove ego from your (and your clients’) decision making: http://bit.ly/isPkL < Excellent!
- RT @CopyrightLaw: “More fair use follies — copyright infringement by court filing?” http://tinyurl.com/yh75nfc < I’m loving @copyrightlaw
- RT @gfiremark: Termination rights: music to artists’ ears http://bit.ly/15O7Hq
- RT @CopyrightLaw: Resale of International Textbooks to US Students Not Protected by First Sale Doctrine http://tinyurl.com/ybqo828
- RT @gfiremark: Was a Contract Formed? http://bit.ly/OvsQs < K wasn’t conditioned on others’ perf. Can’t wait to see the pics.
- @VBalasubramani OK… so who’s going to take this to the SCOTUS? And what’s the third case: Vernor, Cincom and…???
- RT @VBalasubramani: what’s the difference between a purchase and license of software? http://bit.ly/QSMwP < Congrats! Great job.
- Cool trademark search/registration site: http://www.trademarkia.com
- Andy Clarke (@cowshedstudio) on being a Contract Killer: http://bit.ly/Bv4pP <Good article by the kind of person I want as a contract client.
- RT @highrockmedia Freelance contracts: Do’s And Dont’s – http://bit.ly/hiXLg (via @smashingmag) < I’m commentator #39.
- SEC charges former CEO of IBSG with fraud in announcing fictitious licensing agreements: http://bit.ly/3NLp6U
- RT @gtiadvisors: Gmail, AOL, Yahoo! all hit by webmail phishing scam http://bit.ly/3UN3CM < What does this say about the USERS? 🙂
- RT @ITLeadersForum @alltop The Twitter decision flow chart – fun way to think about our use of Twitter…http://retwt.me/CgU4
- RT @marinafeehan: Nixon Peabody Says Student Recruitment needs Overhaul. http://bit.ly/CJsHL < Translation: We don’t want to go it alone.
- New post at licensinghandbook.com : FTC Required Disclosure http://bit.ly/18TPsw
- RT @WieseLawFirm: What are you saying that you aren’t saying? New Blog Post up on the importance of Body Language. http://bit.ly/4gSB7k
- RT @Molly_McDonough: Need a social media/copyright refresher? Take this @bobambrogi quiz http://bit.ly/EyHq
- RT @DanaNewman: Guns N’ Roses sued for copyright infringement: http://bit.ly/NbvWI
- Court Re-Affirms First Sale Doctrine Applies to Licensed SW – http://bit.ly/2fNwsI < Compare w/ Cincom http://bit.ly/IJKVR
- Just use whatever the hell you click “yes” to the first time you load up Resident Evil V to get you started. > http://bit.ly/3WiF51 < Oh my
- Stanford loses patent rights b/c a researcher signed a partner co’s visitor agreement (@ontechcontracts): http://bit.ly/vyPit
- RT @gtiadvisors @kaedron: Microsoft confirmed that thousands of Hotmail accounts compromised in a phishing attack – http://bit.ly/1kpIVT
- RT @fscavo: Expect to hear more of these. From @DavidLinthicum “SaaS Horror Stories Are Starting to Appear” http://bit.ly/kpFT4
- RT @Francineward: Intellectual property- Should biz methods be protected by patent? What will the Supreme Ct say? http://tinyurl.com/ya84d57
- RT @BrianNFletcher: Reading: Red Hat files briefing in support of stopping software patents http://sbne.ws/r/2WRe
- RT @DanaNewman: Dreamworks’ “Flushed Away” sued for copyright infringement: http://bit.ly/p9dOa
- New post at licensinghandbook.com : Announcing the Software Licensing Education Series on DVD http://bit.ly/7RNjZ
- RT @JoeTalik: Many firms unhappy with procurement outsourcing deals http://bit.ly/2lcPP < Don’t outsource what you don’t already do well.
- RT @gfiremark: Excellent Review of “most prolific scholar of copyright in history” http://bit.ly/2dGAws
- Have you downloaded my free Software Licensing Risk Matrix yet? http://bit.ly/FreeRiskMatrix
- RT @raesmaa: Do your lecture notes violate your prof’s copyright? Holy crap! http://bit.ly/1yyPoT < Read comment #8 for the best analysis.
The saying goes that you don’t appreciate someone else until you’ve walked a mile in their shoes. The same can be said for appreciating process. While it is still extremely easy to create new digital works in almost any medium, converting them – especially for sale – is still challenging.
So it gives me great pleasure to announce the availability of the Software Licensing Education Series on DVD. While previously offered here as a digital download, I wanted to make these videos available to a much broader audience. Teaming with CreateSpace has given me that opportunity.
The Software Licensing Education Series is video-based software licensing training. Designed with even a novice in mind, the Series progressively moves from basic topics to those requiring more experience and background. Built around a college-courseware format (100, 200, 300, 400 and 500 levels are available), the Software Licensing Education Series provides instruction in bite size pieces for optimal learning.
Pricing for the DVD set is $750 – significantly cheaper than the cost of most software licensing-related conferences and packed with way more instructional time (551 minutes… more than 9 hours of material). The DVDs may be used in a business setting, too… and are re-usable over and over as needed.
Buy the Software Licensing Education Series now via DVD or digital download and start saving money and reducing risk today! Oh, and get a 10% discount through the month of October on the DVD using discount code: 89YYH47X
Filed under: book, contract management, contract terms, law, source code, trust, TWoTW
The things that happened around the web this week – maybe you already read about them, maybe you need to again:
- no one wants money but everyone wants something that money can buy: http://bit.ly/KGzyN (@vpynchon – even if she’s on vacation)
- BSA softens anti-piracy msg: http://bit.ly/2027C Too bad there’s not an attempt-version of piracy yet … overstepping even in humor.
- RT @PeterKretzman @DavidLinthicum @dhinchcliffe: An Analysis of the Top Cloud Vendors’ cost: http://bit.ly/fIYJw.
- RT @jayshep: Lawyers are saving the world … with disclaimers: http://bit.ly/803Zp (via Client Revolution)
- New blog post: Library of Congress http://bit.ly/9Vrvl
- Just started a Twibe. Visit http://twibes.com/softwarel… to join.
- RT @vpynchon: Just joined a twibe. Visit http://twibes.com/attorney to join
- RT @gtiadvisors: RT @LexMonitor: RT @carmenhill: Social media policies critical for reducing legal, business risks http://bit.ly/uFfBU
- Just started a Twibe. Visit http://twibes.com/negotiation to join.
- Just joined a twibe. Visit http://twibes.com/Supply_Chain to join
- RT @dahowlett: Blogged: Friday rant: Software maintenance; it’s all Manny’s fault – http://bit.ly/AgmU7 – hat tip @monkchips
- RT @PeterKretzman @samj: Twitter’s trademark on Twitter is questionable http://bit.ly/MrI1q (PK: Twitter again shoots self in foot)
- RT @gtiadvisors: RT @jayshep: Great noncompete roundup from Trade Secret Noncompete Blog by @russellbesq: http://bit.ly/12VjKM
- RT @gtiadvisors: RT @GaryHonig: The 10 Stupidest Tech Company Blunders http://tr.im/wJI5
- RT @ManVsDebt: How to Deal with a Bad Deal – http://cli.gs/sR8uUR – (via @mattjabs on @fcn)
- . @vpynchon on Breaking through negotiation impasses. http://bit.ly/1yxhC5 If you’re not already reading Victoria, start now!
- RT @DreamSimplicity: Coupa SaaS Procurement offered Free to Government: http://tinyurl.com/l5hkco < dunno if it’s any good, though
- @SethGrimes @fscavo here’s another thought. Both OSI and FSF require freedom… both also require eventual free “beer” too. 🙂
- @SethGrimes @fscavo I think u should read GNU’s explanation first: http://bit.ly/AdeF an example OS isn’t necessary to prove one COULD exst
- RT @fscavo: Seth Grimes has it exactly backward: open source is free as in “free speech,” not as in “free beer” http://is.gd/2mRl1
- RT @iasta: Identifying and Controlling Hidden Costs: Why are inbound shipments unique? http://bit.ly/2uKggU
- RT @gtiadvisors: RT @BobWarren: 12 Negotiating Tips for Job Seekers http://tinyurl.com/l677wl
- RT @fscavo: Brian Sommer takes a humorous poke at vendors who are less-than-transparent in their public conference calls http://is.gd/2n5Y3
- Monetizing potential infringement instead of suing (or issuing takedown notices): http://bit.ly/yWy0n < good job Google and Chris Brown
- Mastering the art of everyday negotiations: http://bit.ly/JB3hU (from PsychologyToday) < always remember that everything is negotiable
- Maximizing value of software IP: http://bit.ly/eObWI < good info, esp for developers just starting out on their own
- (@spendmatters) on M&A due diligence in S/W world: http://bit.ly/s6Fo2 < thanks for the chance to share, Jason
- Ways consultants get burned in their contracts: http://bit.ly/QxSuL Call me for help if you’re in a similar situation.
- RT @SE_blog: Negotiating w/ Sole Source Vendor http://bit.ly/niu8g “Bring in the Heavies”
Filed under: contract management, contract terms, current events, law, negotiation, TWoTW
The things that happened around the web this week – maybe you already read about them, maybe you need to again:
- RT @rwang0 BlindSearch – the search engine taste-test. http://bit.ly/kEonM < I keep getting Google.
- Gerry Spence on The Great Gift of Rejection: http://bit.ly/TlTd5
- . @vpynchon on Negotiating the Power of Reciprocity: http://bit.ly/uCPuT
- Gamer – the 2000s version of The Running Man. Anyone check to see if Stephen King is getting royalties? http://bit.ly/3oUKxr
- RT @DreamSimplicity: 4 Advs to using SaaS for your Small Biz http://bit.ly/12RrXm –> 4 Disadvs by (@negot8or): http://bit.ly/pXwjX
- RT @DreamSimplicity: Microsoft Acquires Office.com from SaaS provider Contact Office to Use against Google! http://tinyurl.com/ls3t2a
- We’ll Know When We Get There… the story of John Hughes’ pen pal: http://bit.ly/13A5QC
- RT @gtiadvisors: RT @AdvertisingLaw: Top 10 Tactics for Negotiating with the Unethical and Untrustworthy | Lawline.com http://bit.ly/vnbr6
- 20 Salary Negotiation Techniques: http://bit.ly/1hjNm6
- An interesting instance of unexpected contract terms: http://bit.ly/3bkkv The reselling, I get. It’s the “distribute” that bothers me.
- Don’t Act Stupidly (from Stephen Guth): http://bit.ly/lzGD9
- RT @SE_blog: RT @tminahan: Dug from the supplyexcellence.com archives: Dirty Supplier Tricks and How to Combat Them http://bit.ly/13zoqI
- On needing “room” to negotiate: http://bit.ly/10htxb < Quick, but fun and accurate.
- New blog post: Quoted in New Article on Settling Out of Court http://bit.ly/f7R9d
- Someone finally sued over Amazon’s Orwellian behavior. I was wondering when this would happen: http://bit.ly/L1vrS (from THR, Esq)
- Bacharach on Bargaining vs Negotiation: http://bit.ly/ti7MR
- Basic Ethics of Business Negotiators recap of discussion from Chicago ABA Meeting: http://bit.ly/vujHU
- Dell CTO on management of virtual resources http://bit.ly/tl96W
- RT @gtiadvisors, @jimrobinsonlaw, @lawsocgazette: Apple iPhone app makers need legal advice, says Law Society http://tinyurl.com/m8ybhz
- RT @hitchandplow: New blog entry: The Post Vs. Gawker: When Does Linking Become Larceny? http://bit.ly/3UiLun
- New blog post: Cnet author advocates theft http://bit.ly/mVZIU
- Cnet author advocating breaching M$ software licensing. Unbelievable. http://bit.ly/19wiKu
- New blog post: Four Disadvantages to Using SaaS for Your Small Business http://bit.ly/12IGb
- HPC Survey – over 1/4 of IT Execs plan to intro private clouds in ’09: http://bit.ly/ezpN4
- @rwang0 @kitson @fscavo Yes, users DO outnumber the vendors. But they really suck at “unionizing”. 🙂
- RT @WieseLawFirm: RT @DougCornelius: Van Halen used the brown M&M’s clause to quickly check for contract compliance: http://bit.ly/qrjA7
- RT @gtiadvisors: RT @jimrobinsonlaw RT @venturehype When should startups incorporate the company? http://tinyurl.com/l2ygmf @TMMBA528
- Google to act slightly like a normal software company – advertising its apps: http://bit.ly/yA3fj
- RT @doctorow: Associated Press will sell you a license to quote Thomas Jefferson’s public domain speeches: http://tinyurl.com/lplnqp
- Woody Allen with a negotiation tale (HT to Sam Bacharach): http://bit.ly/4tPeBZ
- Wondering why negotiation opponents insist on complete document reversion as their response to a redline. Not good for anyone.
Filed under: contract management, contract terms, contract types, negotiation, TWoTW
- Skype licensing issue might force eBay to recode from scratch. http://bit.ly/10Tk7u
- Businesses cough up £6m for unlicensed software: http://bit.ly/4gaFyU
- RT @hitchandplow: Men At Work Loses First Stage Of Copyright Lawsuit http://bit.ly/12zSnJ < 😦 You betta’ watch, you betta’ take cover.
- RT @vpynchon: even better; Shatner doing Rocket Man in 1978 http://twurl.nl/s4dmlb
- New blog post: Lease by XKCD http://bit.ly/f4572
- EA’s new motto: please pirate our games… er, storefronts – http://arst.ch/3tj via @arstechnica
- The listing price is not the asking price, a basic negotiation tenet that many forget, regardless of what you’re buying: http://bit.ly/cgT9e
- RT @r1c1: insightful article re: apple product design teams: http://bit.ly/3eYW < explains why you shouldn’t do contracts by committee, too
- IBM flings FUD at Neon zPrime customers (The Register): http://bit.ly/hiayP < netnet? Review your license agreement to see if you’re ok.
- Learning from Iran how to negotiate with the Israelis and Arabs (TPMCafe): http://bit.ly/cD0TA
- RT @spendmatters: NYC’s Spend Management Approach To The Homeless Problem — Give ’em Free One Way Plane Tickets http://bit.ly/121tti
- RT @stephenodonnell: RT @stevedupe: RT @CTeng “msft/yahoo – two increasingly desparate companies. 1+1=1, maybe 1.2ish” Excellent!
- David Miller: A Master Negotiator (Unambiguously Ambidextrous): http://bit.ly/3Ra6CQ < hilarious real-life negotiation tragedy.
- Jeff’s Weekly Negotiation Tip: After you make an offer, shut up. Silence has the tendency to make others fill the void.
- Too Much Targeting, or That Hot Single Could be Your Wife (@vedrashko): http://bit.ly/zCx1i
- Four Rules for Effective Negotiations (@anthonytjan): http://bit.ly/Ysu4K
- GM prepares for new CIO (InfoWeek): http://bit.ly/HdLch
- Pirate on When to Negotiate vs Kill Hostages (@dangerroom): http://bit.ly/181urC
- RT @Consensus: Is it better or worse to make the first offer in a negotiation? Check out this tip http://bit.ly/bxrGI
- Microsoft still licking their chops over a Yahoo! meal. http://bit.ly/zDm8H
- Charting lessons from optical illusions (@r1c1): http://bit.ly/8tTei
- RT @hitchandplow: Inside the Octomom Reality Show Contract http://bit.ly/k6HDc
- And for my take on protecting your intangible assets: http://bit.ly/Ak58j
- RT @gtiadvisors: RT @TradeSecretLaw: Learn strategies for protecting the intangible assets in your business.
- RT @mkrigsman: .@vgtero Never a good sign when vendors spend energy criticizing their competitors instead of explaining their own virtues.
- RT @vpynchon: RT @TradeSecretLaw: Negotiation Tip:Say No. http://bit.ly/1sqmHb < Liked it better when Jim Camp wrote it. 😉
- RT @PeterKretzman: RT @billschrier: RT @TechFlash Cool map or wiring diagram of Amazon’s acquisitions over the years: http://bit.ly/yAmIq
- Yet another reason why I don’t like Letters of Intent (HT @ontechcontracts): http://bit.ly/sn9oC
- RT @hitchandplow: (Press Release) Own A Song: SongVest To Auction Royalties For 80’s Hits: http://bit.ly/1Nbm1