Software Contract Checklist
There was an interesting thread on IAITAM’s ‘IT Asset Management – Global’ LinkedIn Group a couple of months back.
“I’m interested to hear others views on ensuring you retain control of licensing agreements from vendors.”
(I would share the direct link to the conversation but it is not an open group – Group profile here).
Bill Felice, a Software Program Manager at SunGard Availability Services, kindly put his head above the parapet and stated:
“…To ensure consistency, I’ve created a software contract checklist which I’d be happy to share. Important clauses/T’s & C’s such as license grant, license model and metric, support clauses, audit, data retrieval and retention (if applicable), etc. I’ve developed a standard addendum to a Publisher’s SLA as a means of ensuring our concerns were presented and addressed.”
Bill has very kindly shared his checklist below, I’ve put the full document in Microsoft Word format in the free downloads section. Sign up to our free newsletter to gain access, existing subscribers – check out the right hand column of the newsletter.
Atul Gawande, author of the brilliant ‘Checklist Manifesto’ which explores the power of checklists. “Man is fallible, but maybe men are less so.”
Software Contract Requirements Checklist
Product
- If Perpetual License – right to use unless breach, etc.
- If term license, support and upgrades included.
- License type(s) (i.e., concurrent, named, etc)
- License Definitions, Definitions for key items
- Affiliates usage permitted
- Ability to make Backup, DR, TEST, DEV copies of Software at no charge.
- Pricing guarantees for incremental purchases
- Price increase caps on additional licenses
- Electronic delivery of software
- Software warranty – time frame, & language including free from time bombs ,etc.
- Acceptance testing
- Existing License Trade-In
- Inability to change license model w/o approval
- Training prices if applicable
- Consulting/Prof Services prices if applicable
- No “then current” or “then in effect” language
- No automatic renewals
- Manuals included for all purchases/upgrades
- License compliance guaranteed only if software delivered to designated group/dept.
- Installation included with SW price
- Language re: future product evaluation
Maintenance and Support
- Operating Systems Upgrade guarantee
- Escalation procedures
- Severity levels, service level response times
- Maintenance %, based on purchase price
- Caps on maintenance increases (3% or CPI)
- Specific Support Hours
- Support on discontinued product
- Separate Billing of Maintenance and support
- Discount on pre-paid maintenance
- Penalties for missed P1 calls/SLA’s
Terms and Conditions
- Use of name clause
- Payments due net 30 from receipt of invoice
- Protection against assignment of product
- Audit rights – 30 days, 15 business days
Thanks very much to Bill for sharing his checklist. Has he missed anything here?
Checklist Manifesto on Amazon.
Related articles:
About Martin Thompson
Martin is also the founder of ITAM Forum, a not-for-profit trade body for the ITAM industry created to raise the profile of the profession and bring an organisational certification to market. On a voluntary basis Martin is a contributor to ISO WG21 which develops the ITAM International Standard ISO/IEC 19770.
He is also the author of the book "Practical ITAM - The essential guide for IT Asset Managers", a book that describes how to get started and make a difference in the field of IT Asset Management. In addition, Martin developed the PITAM training course and certification.
Prior to founding the ITAM Review in 2008 Martin worked for Centennial Software (Ivanti), Silicon Graphics, CA Technologies and Computer 2000 (Tech Data).
When not working, Martin likes to Ski, Hike, Motorbike and spend time with his young family.
Connect with Martin on LinkedIn.
Check-lists are a great tool and are particularly suitable to SAM as the type of engagement can be well defined, by vendor, business case, platform, timeframe and product
I find I have a number of check-lists which I pick from to quickly prepare a SAM engagement. You may not do all the tasks each time but it helps to remind yourself to check anyway.
A comment from Brett Armstrong from Trident Contract Management:
Brett:
“Bill, I enjoyed your checklist. To evaluate all software it is a good place to start. Under Ts and Cs for software you might add an indemnity clause for an infringement claim by a third party (as everyone should offer that but it has not been my experience that they all do – without asking).
COMPANY REPRESENTS AND WARRANTS THAT IT HAS ALL APPROPRIATE AND ADEQUATE PROPERTY RIGHTS TO SELL OR LICENSE, AS APPLICABLE, THE SOFTWARE TO CLIENT AS CONTEMPLATED IN THIS TRANSACTION. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THIS DOCUMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES, COMPANY SHALL INDEMNIFY AND HOLD CLIENT HARMLESS FROM ANY AND ALL COSTS, LOSSES, DAMAGES, AND LIABILITY, INCLUDING REASONABLE ATTORNEYS FEES AND EXPENSES, ARISING FROM ANY CLAIM OF INFRINGEMENT BY A THIRD PARTY. CLIENT MAY, AT ITS SOLE DISCRETION AND EXPENSE, PARTICIPATE IN THE DEFENSE OF ANY CLAIM OR ACTION AND ANY NEGOTIATIONS FOR SETTLEMENT. NO SETTLEMENT WHICH MAY ADVERSELY AFFECT CLIENT’S RIGHTS OR OBLIGATIONS SHALL BE MADE WITHOUT CLIENT’S PRIOR WRITTEN APPROVAL. THIS PROVISION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.”
http://trident-it.com/index.php
Lots of other related IT T&Cs for public and private orgs to consider/include;
SaaS, ‘click-thrus’, HIPAA, ‘dead branching’, price escalation caps, SOWs (scope, schedule, cost, deliverables, acceptance criteria, change control), open ‘phone home’ portal, termination for convenience, data confidentiality, security & breach, malcode, warranties, data retention & return, SLAs (support performance measurement & penalties), cyber insurance, to name a few more. And it goes on from there…