This is the first post in a 3-part series.

When business negotiations are in full swing, clients are typically focused on bottom line business objectives, content to leave the lawyers to hash out standard legal provisions. However, certain legal provisions can also impact business risk, enough so that clients should understand how they work and what can be done to avoid unnecessary risk. One such provision that often receives little attention from clients is contract damages. However, the reality is that negotiating the scope of allowable damages requires a strategic examination of the risks inherent in the transaction and their possible impact on your position in the event of a breach of contract.

Our team negotiates a lot of contracts and works with many clients across a broad range of industries. Over the years, we've noticed a varied approach to the contract negotiation process.  Some clients are highly involved, participating on every call and paying close attention to details, while others prefer to remain in the background and jump in only when directed by their lawyer.  However, the vast majority of business people fall somewhere in the middle – leading the negotiation of core terms such as price and payment terms – then deferring to legal counsel to handle provisions such as indemnification, limitation on liability and other legal boilerplate.

Starting your own business can be a mammoth undertaking, especially when it comes to managing expenses while working (often tirelessly) to build momentum, and eventually, a revenue stream. Many new business owners grapple with the right time to hire an attorney. Although the thought of engaging an attorney from Day 1 may seem cost-prohibitive, it is a smart business decision even for the smallest companies. Of course, you’ll want a lawyer who is fairly-priced and efficient, and who has experience working with startups.

It’s no surprise that start-ups and small businesses are mindful of their budgets. Occasionally, however, cost-consciousness can lead a company to question the need for a contract or contract review, particularly when a transaction involves a small dollar amount or simple service offering. By assuming a lower risk of liability in these situations, the cost of hiring a lawyer to write, or review, a contract can seem unnecessary. This is a misconception.

How to review support terms for Software-as-a-Service (SaaS) or Online Subscription Services

Most online subscription services or SaaS agreements include provisions regarding support, maintenance, uptime and repairs. These terms cover how often the services work, how often they might experience “downtime” or unavailability, and what to do when that occurs (who do you contact, how quickly must they respond, etc.). These terms are often in a separate document or exhibit, typically called a Service Level Agreement or SLA. 

Optimize the value of licensed content by including auditing and reporting rights in outbound content license agreements

The owner/licensor of digital content is typically in the driver’s seat when it comes to structuring the terms of a content licensing arrangement. To that end, licensors will be better served using their own form of agreement, rather than relying on that of the licensee. Licensors can determine everything from the scope of use and amount of control they retain over their content to the terms of compensation. With respect to the latter, compensation is often a variable amount based on either a percentage of advertising revenue earned on pages containing the licensed content, or some other metric such as the number of clicks, unique visitors or page views.