Comments to my recent post on granting language in a license alluded to the case of Jacobsen v. Katzer (Fed. Cir., Aug. 13, 2008). I’d like to pick up on something mentioned by commenter Chris—the court’s discussion of provided that. This case involved the language of an “open source” copyright license. The license granted users the right to use the … Read More
Here’s a generic bit of granting language from a software license agreement: Acme hereby grants Widgetco a nonexclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license to the Software (that license, the “License“). I’m not a licensing guy, so it is with some trepidation that I ask the following question: Are such adjective-heavy formulations really the best alternative? As with any … Read More
The ABA Web Store now has in stock copies of the second edition of A Manual of Style for Contract Drafting. Click here to go to the relevant page. And note that the ABA is offering free ground shipping through the end of August. The ABA is currently the only place you can purchase the book; it won’t be sold … Read More
At a CLE session at the ABA annual meeting I learned of LaPoint v. AmeriSourceBergen Corp., No. 327-CC (Del. Ch. May 1, 2007), a Delaware Court of Chancery case that offers an interesting instance of mistake. The case involved a dispute over an acquisition earnout. AmerisourceBergen had agreed to acquire Bridge Medical Inc. for $27 million plus additional payments to … Read More
Here’s another entry in the rhetorical-emphasis hall of shame—in all respects. Here’s an example: This agreement is in all respects governed by Minnesota law. By omitting in all respects you lose nothing except surplus words. The same goes for in all material respects—use instead materially, but remember that it’s ambiguous. (For more on that, see chapter 8 of the second … Read More
People who attended certain of my recent public seminars received a copy of the first edition of MSCD just as it was about to be made obsolete. So I’m making the second edition available for $25—one third the regular price—plus shipping to those who participated in the following public seminars: April 1, 2008 seminar in Vancouver organized by Osgoode Professional … Read More
If you’re attending the 2008 American Bar Association annual meeting and you’re in a contract-drafting frame of mind, here’s what I’ll be doing there: Thursday, August 7, 2:00PM–3:30PM, “Meet the Author,” ABA Source, Hilton New York (Second Level of the Conference Area), 1335 Avenue of the Americas Friday, August 8, 2:30PM–4:30PM, Panel Discussion, “Getting the Business Deal into the Contract—Choosing the … Read More
In this post on his Law Department Management blog, Rees Morrision—prolific consultant to law departments—quotes a survey in the July 2008 issue of Inside Counsel as saying “33.5% of in-house counsel reported that law firm services are a commodity.” Here’s Rees’s take on this: Loyalty rates of law departments to law firms suggest otherwise, and incessant fee increases by law … Read More
In this post on his Goldman’s Observations blog, Eric Goldman describes a dispute between FaceTime Communications and Reuters. Reuters licensed FaceTime’s software for two years and devoted significant resources to customizing the software. Reuters had an option to pay $150,000 for a perpetual license, but for reasons that aren’t entirely explained, Reuters didn’t exercise the option before the deadline, namely … Read More
Eric Goldman recently sent me the following inquiry: A typical vendor’s contract will say something like “Customer shall pay invoiced amounts within 30 days of invoicing.” With some frequency, customers have been marking up this language to read: “Customer shall pay *UNDISPUTED* invoiced amounts within 30 days of invoicing.” From a vendor’s perspective, I think the added language is objectionable … Read More
