IT negotiating points

By Ed Foster, InfoWorld |  Business

4. Contract modifications

Every contract should state categorically that it cannot be modified without
a "written signature on paper" by both parties agreeing to the change. As the official
reporter's comments to UCITA make very clear, anything short of that language (such as
a requirement for "a signed writing") means that a negotiated and signed agreement can
be tossed aside by one mouse click accepting an unread clickwrap agreement included in
the software in bad faith at a later date. I know this sounds absurd, but that's UCITA
for you.

5. Duration of contract

If you believe you are acquiring the right to use the software as long as you like,
it is important that the contract explicitly says that you are receiving a perpetual
license to use it. Otherwise, you are likely to find yourself operating under the
default rule in UUCITA that says the license is granted only for a "reasonable time"
and can therefore be terminated at will by the licensor. Similarly, if you are
acquiring a site license for what you assume is an unlimited number of users at your
company, the contract should state that or you could be required to pay later for
adding more than a "reasonable number of users" as your company grows.

6. Notification

Any notification requirements in the contract should spell out what constitutes
actual notification and the rules for verifying receipt. Under UCITA, you are deemed to
have received notice even if an e-mail message is sent to an address that's no longer
valid or is purged by your spam filters without being seen.

7. Transfer of license

The contract should specify how restrictions on transferring the license apply to
change of ownership or corporate restructuring of licensee.

8. Noninfringement warranty

Warranties of noninfringment msst specifically state they apply to "worldwide"
rights to use the software. By default, warranties of non-infringement under UCITA
apply only to U.S. rights, even if the license is being granted for international
use.

A few other things experts suggest is that the vendor warrants the product has been
no known defects other than those they have disclosed to you, does not send data back
to the vendor or other sites, and has been tested for viruses.

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