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A Guide to IT Contracting

Product Details

Table of Contents

Nondisclosure Agreements Checklist Overview Key Considerations Essential Terms Additional Considerations Summary Professional Services Agreements Checklist Overview Preliminary Considerations Key Provision Term and Termination Acceptance Testing Personnel Subcontracting Warranties Indemnification Limitation of Liability Intellectual Property Ownership Change Order Confidentiality and Information Security Force Majeure Nonsolicitation Insurance Fees and Costs Relationship to Other Agreements Summary Statements of Work Checklist Overview Scope of Work and Business Requirements Technical Environment Acceptance Testing Deliverables Documentation Roles and Responsibilities of the Parties Project Management Processes Issue Resolution and Escalation Procedures Risks Pricing and Cost Service Level Agreements Change Orders Summary Idea Submission Agreements Checklist Overview Key Risks of Submissions Key Provisions for Idea Submission Agreements Beware Reverse Submissions Summary Cloud Computing Agreements Checklist Key Considerations Service Levels Uptime Service Level Response Time Service Level Problem Resolution Service Level Remedies for Service Level Failure Data Data Security Disaster Recovery and Business Continuity Data Redundancy Use of Customer Information, Data Conversion, and Transition Insurance Indemnification Limitation of Liability The Limitation of Liability Should Apply to Both Parties License/Access Grant and Fees Term Warranties Publicity and Use of the Customer Trademarks Notification for Security Issues Assignment Pre-Agreement Vendor Due Diligence Conclusion Joint Marketing Agreements Checklist Overview Key Issues and Guiding Principles Determine the Scope of the Engagement Marketing Obligations Referral Arrangements Confidentiality Intellectual Property Issues Warranties and Disclaimers Term and Termination Summary Software Development Kit (SDK) Agreements Checklist Overview Key Issues and Guiding Principles Determine What Should Be Included in the SDK Scope of License Ownership Confidentiality Compatibility Testing Support Warranty Disclaimers Limitations on Liability Indemnification Export/Import Acquisition by Federal Government Term and Termination Summary Original Equipment Manufacturer (OEM) Development Agreements Checklist Overview Key Issues and Guiding Principles Joint Development Agreements Development and Professional Services Agreements Exchange of IP Confidentiality Compensation/Fees/Revenue Share Change of Control Assumptions/OEM Customer Obligations Marketing End User License Agreement Audit Rights Warranties Support and Maintenance Limitations of Liability Indemnification Termination Contract Negotiations Summary Health Insurance Portability and Accountability Act (HIPAA) Compliance Checklist Overview Key Issues and Guiding Principles Who Are BAs? What Can Happen to BAs That Fail to Comply with HIPAA? BA Requirements Under the New Security Breach Notification Requirements BA Requirements for Compliance with HIPAA Security Rule Statutory Liability for Business Associate Agreement Terms BAA Compliance with HITECH Act Requirements Other New HIPAA Requirements Steps for Compliance for Breach Notification Steps for Compliance with HIPAA Security Rule Amendment of BAAs Considerations for Inventory HIPAA-Related Policies Summary Key Issues and Guiding Principles for Negotiating a Software License or OEM Agreement Checklist Key Issues and Guiding Principles Initial Matters Scope of License/Ownership Pricing Audit Rights Limitations of Liability Warranties Support and Maintenance; Professional Service Rates Payment Term and Termination Infringement Indemnification Summary Drafting OEM Agreements (When the Company is the OEM) Checklist Key Issues and Guiding Principles Determine the Scope of the Engagement Customer Terms Territory Hardware Products Exclusivity Supplier Product Changes Support and Training Confidentiality Intellectual Property Issues Warranties and Disclaimers Limitations of Liability Indemnification Term and Termination Summary Collecting Basic Deal Information Checklist Overview Key Considerations Performance Intellectual Property Issues Personal Information Privacy and Security Information Security Other Unique Issues Summary Reducing Security Risks in Information Technology Contracts Checklist Best Practices and Guiding Principles Trade Secret Considerations Copyright Considerations Joint IP Considerations Policy on Embedded Open Source Internal Procedures Policies Following Infringement Employees Employee Training and Communication Contractual Protections Nonemployees and Subcontractors Software Distribution Object Code vs. Source Code Language for License Agreements Nondisclosure Agreements Audit Rights Foreign Jurisdictions Source Code Licenses Escrow the Source Code Language for Source Code License Agreements Summary Website Assessment Audits Checklist Overview Key Issues and Guiding Principles Evaluate Your Website Domain Names Use of Third Party Trademarks Hyperlinks Content Visitor Uploads? Applicable Internet Specific Laws Terms and Conditions Data Security and Privacy Insurance General Considerations Summary Critical Considerations for Protecting IP in a Software Development Environment Checklist Overview Key Issues and Guiding Principles Vendor Due Diligence Treatment of Data Physical Security Administrative Security Technical Security Personnel Security Subcontractors Scan for Threats Back-up and Disaster Recovery Confidentiality Security Audits Warranties Limitation of Liability Destruction of Data Additional Considerations Summary Click-Wrap, Shrink-Wrap, and Web-Wrap Agreements Checklist Overview What Is a "Shrink-Wrap" License? Products Purchased Under Shrink-Wrap Agreements-Common Elements Methods of Purchasing Shrink-Wrap Products Typical Shrink-Wrap Terms and Conditions Key Risks of Shrink-Wrap Products Mitigating Risk Conclusion Transactions Involving Financial Services Companies as the Customer Checklist Overview Three Tools for Better Contracts Key Considerations Summary Maintenance and Support Agreements Checklist Overview Scope of Support and Maintenance Predictability of Fees Support Not to be Withheld Term Partial Termination/Termination and Resumption of Support Specifications Availability Support Escalation Service Levels Summary Source Code Escrow Agreements Checklist Overview What Does It Mean to Escrow Source Code? Types of Escrow Agreements Release Conditions Key Issues for Escrow Agreements Conclusion Integrating Information Security into the Contracting Life Cycle Checklist Overview Due Diligence: The First Tool Key Contractual Protections: The Second Tool Information Security Requirements Exhibit: The Third Tool Conclusion Software Development Kit (DSDK) Agreements Checklist Overview Key Contracting Concerns From the Perspectives of Both Parties Licensor Concerns Licensee Concerns Conclusion Distribution Agreements Checklist Overview Key Issues for Distribution Agreements License Grant End User License Agreement Development of the Product End User Data Obligations of the Parties Product Pricing Additional Considerations Summary Data Agreements Checklist Overview Key Contractual Protections Conclusion Service Level Agreements Checklist Overview Service Level Provisions Commonly Found in the Terms and Conditions Root Cause Analysis, Corrective Actions Plans, and Resolution Cost and Efficiency Reviews Continuous Improvements to Service Levels Termination for Failure to Meet Service Levels Cooperation Service Level Provisions Commonly Found in a Service Level Agreement or Attachment Measurement Window and Reporting Requirements Maximum Monthly at-Risk Amount Performance Credits Presumptive Service Levels Exceptions to Service Levels Supplier Responsibilities with Respect to Service Levels Additions, Deletions, and Modifications to Service Levels Earn-back Form of Service Levels Conclusion Critical Considerations for Records Management and Retention Checklist Introduction Avoiding Spoliation Claims Impact on Litigation/Discovery Costs Developing the Policy Litigation Discovery Procedures Developing The Retention Schedule The E-Mail Problem Authorized Storage Locations Confidentiality and Security Third-party Vendors Proper Destruction Website Development Agreements Checklist Overview Initial Issues to Think About What Are the Basic Objectives of the Website and the Development Agreement? Intellectual Property Ownership Software Requirements Schedules and Timetables Term and Termination Fees and Charges Project Management Acceptance Testing Warranties Indemnifications Content of the Website Linking Issues Insurance Reports, Records, and Audits Training/Education/Troubleshooting Additional Provisions to Consider Summary Social Media Policies Checklist Introduction Policy Scope and Disclaimers No Expectation of Privacy Right, But No Duty, to Monitor Conduct in Social Media Social Networking and Weblogs Employee Questions and Signature Conclusion Software License Agreements Checklist Introduction Four Critical Questions License and Restrictions Acceptance Testing Third-party Software Fees Warranties Indemnification Limitation of Liability Specifications Confidentiality and Security Maintenance and Support Announcements and Publicity Term and Termination Additional Contract Terms Conclusion Glossary FFIEC Booklet Index

About the Author

Michael R. Overly is a partner in the Information Technology & Outsourcing Practice Group in Foley & Lardner's Los Angeles office. As an attorney and former electrical engineer, his practice focuses on counseling clients regarding technology licensing, intellectual property development, information security, and electronic commerce. Michael is one of the few practicing lawyers who has satisfied the rigorous requirements necessary to obtain the Certified Information Systems Auditor (CISA), Certified Information Systems Security Professional (CISSP), Information Systems Security Management Professional (ISSMP), Certified in Risk and Information Systems Controls (CRISC), and Certified Information Privacy Professional (CIPP) certifications. He is a member of the Computer Security Institute and the Information Systems Security Association. Michael is a frequent writer and speaker in many areas including negotiating and drafting technology transactions and the legal issues of technology in the workplace, e-mail, and electronic evidence. He has written numerous articles and books on these subjects and is a frequent commentator in the national press (e.g., the New York Times, Chicago Tribune, Los Angeles Times, Wall Street Journal,, CNN, and MSNBC). In addition to conducting training seminars in the United States, Norway, Japan, and Malaysia, Michael has testified before the US Congress regarding online issues. Among others, he is the author of the best-selling e-policy: How to Develop Computer, E-mail, and Internet Guidelines to Protect Your Company and Its Assets (AMACOM 1998), Overly on Electronic Evidence (West Publishing 2002), The Open Source Handbook (Pike & Fischer 2003), Document Retention in the Electronic Workplace (Pike & Fischer 2001), and Licensing Line-by-Line (Aspatore Press 2004). Matthew A. Karlyn is a partner in the Technology Transactions Practice in the Boston office of Cooley LLP. Matt regularly represents companies in technology transactions and outsourcing transactions and has experience in both private practice as well as in-house for two software companies. A sought after writer and speaker in the area of information technology and the law, Matt has published over 40 articles, written chapters in several books, and given more than 60 presentations on topics ranging from the latest developments in information technology to best practices for drafting and negotiating information technology contracts. In addition to his law degree, Matt also earned a MBA from the University of Chicago in economics and strategic management and regularly advises companies on the business aspects of IT including IT strategy, pricing strategies, RFP development, governance, relationship management and reporting structures, and transition planning and implementation. In 2010, 2011, and 2012 Matt was selected for inclusion in the Massachusetts Super Lawyers - Rising Stars list, an honor given to the top 2.5% of Massachusetts lawyers under the age of 40. Matt has served as Chair of the New England Chapter and the Legal Process Outsourcing Chapter of the International Association of Outsourcing Professionals, is currently a member of the Corporate Law Advisory Board for Stafford Publishing, and for several years served on the Board of Directors of the International Technology Law Association. Matt also served for two years as the Co-Chair of the Boston Bar Association's Intellectual Property Section's Computer & Internet Law Committee. For the last three years, Matt was named a judge for the CIO-100, an award program published by CIO magazine that recognizes organizations around the world that exemplify the highest level of operational and strategic excellence in information technology.


Overly and Karlyn have been top-rated speakers at many of our CIO magazine events, and expert sources for our stories, as well. They truly understand the world of senior IT leaders and the legal complexities of technology vendor management. A Guide to IT Contracting: Checklists, Tools and Techniques, delivers the kind of practical, actionable advice that CIOs crave. -Maryfran Johnson, Editor-in-Chief, CIO Magazine & Events A Guide to IT Contracting: Checklists, Tools and Techniques, is a practical, well-organized, and informative guide that highlights the issues that every lawyer and senior IT executive should use when negotiating various types of IT contracts. This is the book that should be on every lawyer and CIO's desk. Overly and Karlyn have written the 'IT' book for IT contracting. -Arlene Feldman, Vice President and Assistant General Counsel, BJ's Wholesale Club, Inc. -Susan Codner, Assistant Vice President, Senior Counsel, BJ's Wholesale Club, Inc. A Guide to IT Contracting: Checklists, Tools and Techniques is an expert resource to help business leaders navigate the complex waters of IT contracting. Presented in an easy-to-follow format, every reader will benefit from Overly and Karlyn's depth and breadth of knowledge of information technology and outsourcing law. -Kari Murphy, Managing Director, Hengtian Services LLC Practical and readable, A Guide to IT Contracting: Checklists, Tools and Techniques will become the definitive guide on IT contracting. Overly and Karlyn present actionable techniques for constructing and negotiating virtually every type of IT contract. -Danielle Sheer, General Counsel and Secretary, Carbonite, Inc. In today's dynamic business world, Overly and Karlyn have created an essential tool for lawyers and non-lawyers alike. A Guide to IT Contracting: Checklists, Tools and Techniques is a concise and useable resource to help navigate the intricacies of information technology agreements; a must-have. -David M. Strauss, General Counsel, EyeLock, Inc.

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