Hopefully, most of you are done with work for the year. But for those of you about to close end of year, firesale-type deals in the remaining 6 days of the year (the end of the year is even a Thursday, so you don’t have to “work” a weekend if this is your fate), here is a list of articles on how to get the most out of your transaction time:
Start your deals from good templates.
And, lastly, consider the reasons for agreeing to renegotiating deals.
To my faithful readers: Thank you for listening to me for another year. I hope you have a very joyous holiday season and a happy New Year. See you in 2010 (unless something really awesome in the licensing world happens between now and then).
Filed under: contract management, copyright, current events, dispute resolution, EULA, force majeure, fun, information security, maintenance, pricing, SaaS, termination, trademark, TWoTW, warranty
It happens to be my birthday weekend and between eating some great food, playing Guitar Hero with my wife and hanging with the family, these are the things that happened around the web this week – maybe you already read about them, maybe you need to again – there were some REALLY great discussions going on. Come join the party on twitter (follow me here and you’ll join 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 @rwang0 @dealarchitect: Don’t cry for me Germany. SAP had plenty of warnings. http://tinyurl.com/mclvbm < I can’t wait to see who’s next
- RT @richards1000: Tuunanen et al. on Automated Software License Analysis http://bit.ly/svjQR < Cool but irrelevant. FOSS license are nonneg.
- RT @rwang0: reading the new twitter terms of service. like the fact that you and only you own your content. < At least for now. 🙂
- RT @jimcalloway @ernieattorney Important safety tip for ‘would-be lawyer bloggers’: if you lack common sense don’t blog http://bit.ly/2fFcBH
- New blog post: Content, Value and Commoditization http://bit.ly/27HVx
- RT @btannebaum: Lawyers, do you care about transparency on twitter? http://mylawlicense.blogspo…
- Contract negotiation according to the Marx Brothers: http://bit.ly/12U7pY
- US Registrar of Copyrights opposes Google book deal: http://bit.ly/KhP83 … so do I. Unwarranted monopoly.
- … and then there was a whole discussion on what constitutes being an expert at something, sparked by one lawyer’s assertion that it takes 6 months’ of research and then a good SEO strategy to get yourself to the top of the Google rankings. I, and others, disagreed. (RT @nikiblack @Adrianos: “How To Become An “Expert” In Your Niche In 6 Months” http://bit.ly/pIj2Q < I really do NOT like this!)
- New blog post: On Acceptance Testing… http://bit.ly/s0zsV
- @JasonAnderman The author misses part of the value of the lawyer – understanding that a form isn’t 1sizefitsall. Available /= viable.
- @ferrusi @PeterKretzman When discussing vendors, not having them in the room usually leads to more openness. It can also reveal biases.
- @PeterKretzman @mckenziesa: RE: Find a way to get the salesmen out of our vendor discussions! < Um, Ask them to leave?
- RT @glambert: Blogging Lawyer Charged with Confidentiality Violations – http://bit.ly/mLcTj (Public Defender tells a little too much)
- RT @rwang0 Cloud computing model – IDC numbers show s that its … 1/2 the cost < How does that translate to customer fees?
- RT @PeterKretzman @testobsessed Source code, like invty, is a liability, not an asset. (PK: indeed. It’s why I laugh at source code escrow)
- RT @vpynchon @tamerabennett: Disney, Pixar Sued by Luxo Lamp Co: http://bit.ly/MO4X7 < Shouldn’t matter. Pixar’s not selling lamps.
- RT @fscavo: @negot8or thinks #saas providers should set up living trusts (my word) for their customers. Read comments: http://is.gd/34L65
- Kate Gonzalez’s Tom Ten Force Majeure Imposters (via @superbuyer): http://bit.ly/Ol4Wy
- Confessions of a Car Salesman: meeting, greeting and dealing: http://bit.ly/3nihk (via edmunds.com)
- Antitrust lawyer slams Google book pact: http://bit.ly/83Hqp (via All Things Digital)
- RT @LeighMonette: RT @PrivacyLaw: “’Anonymized’ data really isn’t—and here’s why not” http://tinyurl.com/ksxz8t
- RT @fscavo: Just blogged: SaaS contingency plans need more than software escrow http://bit.ly/r2cJn < Escrow is wasted money IMHO.
- RT @jimcalloway: Blogged about lawyers taking their laptops across the U.S. borders. http://tinyurl.com/n4bfms
- RT @BrettTrout “World Patent” good for M$, bad for most everyone else. http://bit.ly/o0rbZ
- Jeremy Telman, contracts prof @ my almamater, on why execution before performance is a good idea: http://bit.ly/1iJjY7
- RT @vpynchon: http://twurl.nl/tiuvp7 the negotiation analysis of the lessons of the Cove (which halted the killing of dolphins for one day)
- RT @bobambrogi: LawSites blog: Plaxo’s New Terms of Service http://bit.ly/1BNRy
- RT @bobambrogi @paulzink: You and your attorney colleagues (esp. those in copyright law) may get a chuckle from this: http://bit.ly/jJd6G
- … and then we had a long discussion on the tweeting of the play-by-play via twitter of a NFL game (the NFL likes to exert some extreme control over their content). Some folks thought that twitter was a game-changing technology. I argued that it was control-changing…. that they should tweet every game in their own words: @FlashFusion @julito77 @gtiadvisors It’s only a copyright issue if you tweet the actual broadcast wording/play-by-play. Make up your own. 🙂
- RT @doctorow: Another reason you can’t outsource your kids’ online safety to spyware companies: http://tinyurl.com/n934fh < Read the EULAs!!
- RT @gtiadvisors @GregBufithis @BrettTrout Proposed U.S. patent law reforms would stifle innovation and injure entrep’s http://is.gd/2ZXza
- RT @OmarHaRedeye: Blawg Review #228 is live http://bit.ly/11D50J/ < Thanks for the inclusion!
- Sometimes is pays to see how the software sausage is made: http://bit.ly/S3b5p
Filed under: assignment, confidentiality, contract management, copyright, Five Fundamental Skills, negotiation, pricing, risk matrix, SaaS, transfer, TWoTW
The things that happened around the web this week – maybe you already read about them, maybe you need to again:
- RT @gtiadvisors: RT @AdvertisingLaw: Blog Post: Content Protection and Copyright http://bit.ly/1Q0CX
- New blog post: Confidentiality Exclusions versus Disclosures http://bit.ly/4qYdND
- Tech workaround could allow MS-Word sales to continue: http://bit.ly/haM2S
- If you buy/sell software, get your free copy of the Software License Risk Matrix: http://bit.ly/14AJ0E
- . @insurancecvg on Coverage Disputes over Data Breaches: http://bit.ly/zaK87
- RT @ManVsDebt: frugal misery… when people try to apply cost-cutting tactics in areas that have a high personal value: http://bit.ly/rUDJ3
- I have available time for a new client if anyone is looking for ways to save money on IT procurement-related spend. Give me a buzz for info
- You don’t get what you deserve, you get what you negotiate (@activegarage): http://bit.ly/vW2KU
- RE: @park3 Thanks Jay. I’m still not sure that the distinction you point out really changes the analysis. Even in a… http://disq.us/1szo
- Who do you think is the best negotiator? 10% say William Shatner. Seriously? http://bit.ly/tP1SA
- RE: @park3 I don’t know that there is a rule. In fact, after years of thinking about it, the only rule is that there i… http://disq.us/1sxz
- Microsoft software clampdown nets 11 firms (via ZDNetUK): http://bit.ly/fVRFs
- RT @gtiadvisors @taxgirl: http://bit.ly/rPlPd < Why I recommend negotiation experts over corporate lawyers.
- RT @skydiver: http://bit.ly/JetPass – all you can fly in one month on jet blue – $599. < Sourcing folks should watch how this plays out.
- RT @gtiadvisors @colleencunningh @CoreyVickers @BettyFeng CFOs ignoring supply chain risks http://bit.ly/qtgK8 < I knew it… crap.
- RT @drjimanderson: Classic Sales Negotiation Tactic – I’ve Got to Talk to My Boss: http://bit.ly/wYU4j < Power tactic, learn to respond
- RT @harrymccracken: Texas Judge tells Microsoft to quit selling Word: http://bit.ly/ybXzR < This doesn’t affect current owner/users of Word
- When describing calculations in contracts – SHOW AN EXAMPLE, it might save your butt later! (@ontechcontracts): http://bit.ly/NXrsr
- New blog post: Jeff Gordon Quoted on SpendMatters Today http://bit.ly/zPTbo
- Simon Cowell’s lessons in salary negotiation http://bit.ly/1Es4p
- Thanks to Jason Busch (@spendmatters) for an opportunity to talk about M&A wrt licensing deals: http://bit.ly/ANzzA
- RT @fscavo RT @rwang0 Hearing about how hard it is to leave some #saaS vendors. Automatic renewal may not be the way to go! < Same here
- Follow the Five Fundamental Skills for Effective Negotiation and this won’t ever be an issue: http://bit.ly/oKM7J
- RT @ontechcontracts 3-step way to ID contract contingencies: http://bit.ly/N7Ldu < I was just talking about this. Good article!
- RT @fscavo: Stupid contract clauses that hinder business partner relationships http://is.gd/2aOYc Good post by @Figliuolo
- RT @WieseLawFirm: Thoughts on developing leverage and why it’s important in negotiations: http://is.gd/2aE28 < I call it Power in the FFSfEN
- Privacy policies just got interesting in ME (and applicable to everyone doing anything online): http://bit.ly/FFtYn (HT to Deena Burgess)
I’m simply stunned by a recent article written by Cnet columnist Rafe Needleman.
In his post, he blatently advocates buying “lesser” versions of Microsoft products to take advantages of the discounts available to certain classes of users, regardless of whether you actually fall into that user class. His cavalier attitude towards the vendor (telling his readers that Microsoft probably doesn’t check up on usage) and the user (suggesting that users who pay the appropriate price for their user class are “suckers”) is abhorent and I’m frankly disappointed that the editors at Cnet allowed this garbage to see daylight.
I’ve responded twice in the comments (as “negot8or” if you care to read them… once on page 1 and again on page 2). The general gist of my response is that if you don’t like the pricing for a particular product, don’t buy it. Vote with your pocketbook. Vendors who don’t sell enough software will either drop their price or drop out of the market. But buying something you’re not licensed to use and using it anyways is a form of theft (“software piracy” if you will). Software has historically been sold on the basis of end-user value. It’s the right of the vendor to charge whatever they want. Stealing, in any form, isn’t justified because there exists a cheaper price somewhere else – or for someone other than you.
As much as I advocate for better software licensing terms and more transparency from vendors, I do not believe in taking what isn’t yours. I hope you agree.
Filed under: pricing
In the contracting duality of terms and pricing, I spend the bulk of my time here talking about terms. The reason is generally simple – terms are fairly common across contracts. Pricing, on the other hand, appears deal-specific and too different to really discuss in detail. I simply can’t tell you that a 30% discount is what you should be looking for all the time. Sometimes 10% is good (for certain vendors) and sometimes 80% is good (for other vendors). Without violating various confidentiality provisions – and without knowing other specifics about a particular deal (such as its size, duration, etc) – I’m a little boxed in. But I did realize that there are a few things you can learn about pricing which will help you, regardless of which side of the fence you’re on.
First, you need to go read Joel Spolsky’s excellent article: “Camels and Rubber Duckies“. This will give you the starting point for understanding how pricing should be created. Eric Sink uses a similar breakdown to understand the economics of how software is priced. Next, you need to understand the four basic ways software is licensed. This article by Erik Keller from 2007 in Manufacturing Business Technology is a bit dated, but hits the fundamentals. And even within the SaaS model (and, in fact, the traditional model), there are different metrics upon which the licenses can be measured. Check out this optional article by Jason Rothbart from January 17, 2009’s ReadWriteWeb.
So armed with an understanding of how software is priced, we then need to move onto maintenance and support. Let’s start with the basics from this 2006 Information Week article (still relevant data). What we’ve got these days is a system in which we expect to pay a base fee for the license plus an annual support fee… or we pay the leasing/SaaS model of “license renewals” for each year of use. Regardless of how you slice it, there’s an annual fee component to the deal.
Forgetting about the tax implications of mandatory maintenance in many jurisdictions, I instead want to focus on a very specific pricing issue – the increase. Yup, all of this build-up and what I really want to talk about is the language in your various license agreements and maintenance documents that allow for increases in license and/or maintenance fees year after year (you need to understand how license fees are created to really dive into increase language). This is a hidden gem for vendors and is often overlooked by licensees, simply because people don’t think about its effect on price (because it’s an increase on future pricing and not today’s pricing, it’s sometimes not deemed relevant or worrisome). I believe that license and maintenance fee increase language is dangerous at best and disastrous at worst. Here’s why.
Assume for the moment that you’ve paid $1,000,000 for your license and that you have a 20% annual maintenance fee. There’s no more “warranty grace period” so, interestingly enough, the vendor actually wants $1,200,000 that first year. Well, to start, Vinnie Mirchandani over at deal architect will tell you that maintenance is overpriced. I agree. For $200,000, I would expect at least 1/5th the value of the license to come back to me that first year in maintenance and support. In other words, is the software SO BAD that it requires 4,000 hours of support by a $50/hour technician for that year? I hope not. Or, alternatively, are you getting a 20% increase in features and functionality in the next release of the software that year? My guess is that the answer to both questions is “no”.
So 20%, on its face, seems pretty unreasonable from the get-go (you can also just think about it in terms of re-licensing costs… do you want to have effectively paid to re-license the software in 5 years?). Now let’s factor in the increase. These range from 3-15% in most license templates today. Even at 3%, that would equal a $6,000 increase in the $200,000 fee from Year 1 to Year 2 (at 15%, that increase would be $30,000). The most common rationale given for increases is a cost-of-living (economic) excuse for the support people. The second most common is the same argument, only this time, it’s the cost of goods and/or materials. (My personal favorite counter argument is to agree that pricing should be tied to the economy, and then re-write the language so that “the pricing changes based on the CPI-U All-Items percentage for the prior year”. This allows it to actually go down. A savvy vendor won’t ever allow this. But then their excuse evaporates, too.) Thus, I’ve had to concede increases in many cases. I’ve even said before that for 3-5 year deals, I try to get increases removed for the term of the agreement (it’s the trade-off for a long-term deal).
But what about increases not tied to the economy, rather the simple cost of doing business? Should customers be saddled with the expenses related to having to change a product because the vendor’s industry is regulated by the government? Should the end-user, mid-term on a contract, be expected to pay for changes resulting from something completely outside of the customer’s control? I’m thinking specifically in the telecom industry (and others) – where federal regulations that result in fees typically find themselves trickled down to the customer. I’ve said it before and I’ll say it again… the telecom vendors don’t have to pass along the fees. They could pay them themselves. But they don’t. If you’ve ever seen a line-item for cost-recovery fees, that’s what we’re talking about.
So the question is – should you accept these pass-through fees? Or, more specifically, should you accept increases in these pass-through fees? I can understand that there is an economic argument (as above)… that it’s an increase in cost for something you thought was fixed or sunk before the contract was signed. But isn’t it just a risk of doing business in any particular industry? Don’t we, as automobile owners, for example, take the risk that gas prices are going to increase or that we may lose our jobs tomorrow? And that if we decide to buy a car today, we accept those risks and have to deal with the consequences if the situations change? Why should I have to protect not only myself, but also my vendors, from the risks (and costs) of doing business in their industry?
I completely agree with David Dobrin. It’s hard to convince people to do it, of course. But read his logic. 1/200th. I think that is about the right threshold – it might even be a little low (my life insurance policy is about 1/500th… my car is about 1/166th – but doesn’t take personal injury into account… my home is about 1/1600th).
Hmmm… the more I think about this, the more I think it would be really easy to convince my clients of this. Anyone have a counter argument?
Filed under: contract management, current events, license grant, maintenance, pricing, SaaS
Below is the contents of an internal salesforce.com 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 Force.com 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 Force.com 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.