A clickwrap agreement is only as enforceable as the way you implemented it. Courts don’t enforce the terms you wrote. They enforce the click your user actually made, on the screen you actually showed, in the moment they actually made it. The document is the easy part. The implementation is
Short answer: the Oracle v. Google API case told software companies that APIs and even functional code can be copyrightable, that these disputes are intensely fact-specific, and that proving copyrightability is far easier than proving infringement. On May 9, 2014, the appellate court handed down its 69-page decision in the
Short answer: your software infringement indemnity should cover only your software, not your software combined with the customer’s or a third party’s technology. In AFLAC v. Intervoice, the vendor owed no indemnity because the infringement claim arose from that combination. This is what to know about the “combination exception” to
Short answer: a SaaS confidentiality agreement (NDA) is not boilerplate. In the Techforward v. Best Buy case, a startup disclosed its trade secrets to a prospect that walked away and built a copycat, and the NDA is what turned that into a $27 million judgment. Use one, disclose in layers,
Short answer: telling your customers to back up their data, in the contract, in the product, and in your documentation, is a cheap and genuinely effective legal defense. A Utah Supreme Court case shows that those customer data backup warnings, combined with a disclaimer of indirect damages, can get a
Short answer: the CarrierIQ takeaways for software vendors come down to two things. In a vendor-plus-platform stack, the party that decides what data to collect and whether to disclose it carries the privacy responsibility. And a too-broad indemnity can put the software vendor on the hook for the platform’s mistakes.
Short answer: three lessons from the HyperQuest case for an exclusive software license: use copyright language in the grant, do not retain so many rights that the “exclusive” license is not actually exclusive, and scope exclusivity to a territory, field of use, or medium. It is not often that a
Short answer: yes, an instant-message exchange can change a written contract. In one case, a vendor typed “NO LIMIT” and the other side replied “awesome,” and a federal court treated that as a binding modification, with no signature anywhere. IM contract modification is real, and it should change how your
Short answer: the Google Buzz FTC settlement taught SaaS vendors three lessons: set new “connect people” features to off by default, never use data for a purpose beyond what your policy disclosed, and put one person in charge of privacy. A single default setting can trigger FTC action. Google settled
Short answer: a statistical study of 358 trade secret cases shows the people who steal your secrets are almost always insiders, employees and business partners, and the one thing that decides whether you can stop them is whether you took “reasonable measures” to keep the information secret. For a software
Short answer: the Oracle v. SAP case (a $1.3 billion jury verdict, later reduced to about $356.7 million) is a list of what not to do to a competitor: do not download more of their software than you are licensed for, do not ignore the terms of use on their
Short answer: when an employee leaves for a competitor, your ability to stop them from using what they know comes down almost entirely to what you did beforehand: marking and restricting your confidential information, running exit interviews, and using confidentiality agreements. Starwood v. Hilton shows the payoff of protecting trade
Short answer: in a software OEM agreement you cannot grant your customers more rights than your own upstream license gives you. So spell out exactly what rights survive termination. A case where SAP was sued under an OEM agreement makes the point. Here are three things every software company can
Short answer: EULA enforceability has a fraud ceiling. A limitation of liability protects you against most claims, but not against fraud. The Dillard’s v. i2 case turned a $10 million deal into a roughly $246 million judgment. The lesson: never over-commit and under-deliver, and draft against the fraud end-run. There
Short answer: whether a third party can use or access your software is up to your agreement, not the customer. One court held that letting a third party use the software, even for the customer’s benefit, breached the license. So decide the rule and write it down. This question comes
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