Software agreements can be for off-the-shelf software (non-customized software), custom designed software (software development) or somewhere in between.

Knowing what you need today and in the future, what specifically you are negotiating for, and what kind of business rights you want, are critical in preserving the maximum amount of technical and financial flexibility. 

At Win-Win Agreements, we have 20 years of experience in negotiating all facets of agreements, from price negotiations, to use rights, acceptance criteria, dispute resolution, audit rights, privacy and security provisions, intellectual property, royalties and more.

Enterprise software agreements, a complex version of a software agreement, demands particular attention.  Any time you put the enterprise component into play, vendors think in terms of bigger dollars and multi-year commitments. While this may be true in many cases, how you negotiate your rights to deploy, use and change the software will greatly affect your consumption of time and your payment of fees. Don't try negotiating without significant internal knowledge or seeking expert advice.

Electronic Medical Record and Electronic Health Record  (EMR/EHR) agreements deserve particular attention for a variety of reasons. First and foremost, the nature of the agreement and standard of perfomance are directly related to the quality of clinical care. Mistakes and issues in an EMR/EHR equate to mistakes in a clinical setting. This is unacceptable as the results can have serious health consequences.

Further, there are so many variations of agreements. They can range from standard license and support agreements to complete managed service agreements including application hosting, hardware support, telecommunications support and more. Please refer to our Healthcare Specific page for more information on EHR and EMR agreements.

Application Service Provider(ASP); Managed Service Provider(MSP); Hosting Service: there are a wide variety of managed services that fall into this category. Each has it's own specifc value and introduces different risks to your business. To manage this risk you need to make sure your provider takes business, technical and operational accountability as part of their service. How much they will take depends on the nature of the service and the vendor involved.

Another key consideration as you allow another vendor to effectively manage a service for you is privacy and security considerations. Operating today in the heightened regulatory environment related to data privacy and use of data becomes more complex in a manaed service.

Particular attention needs to be paid to validation of the representations made by vendors because in the end, it is your business responsibility and you suffer the consequences  of their actions. For example, if the privacy of an individual is compromised or if your client suffers business consequences under this managed service agreement, you may be responsible unless you can represent that the appropriate protections were in place.

Outsourcing agreements are perhaps the most complicated of all technology agreements. All facets of technology agreements (software, support, service levels, hardware, 3rd party agreements, managed services and more) will typically be involved in a complete outsourcing.

In addition, you typically will be adding a complexity layer of human resources issues and financial issues as you move personnel and physical assets to the outsourcer.

Agreements can be limited to Information Technology Outsourcing (ITO) only or can include entire business process outsourcing (BPO) for some of your key business functions.

Wherever you get your support for an outsourcing agreement, you should never engage a vendor without external advice and support from a qualified professional.

Service agreements bring a host of additonal risk issues into the equation. A service agreement can accompany or be embedded in any of the above agreement types or be completed as a stand alone arrangement. Services can be delivered strictly as a complement to a product implementation or can result in a new or derivative product being developed.

Focus in the agreement needs to be not only on what service is being undertaken but how might the service or resulting product be used by you. Do you have rights to use the product or service as you need to forever? Do you owe royalties to the vendor? Will the vendor owe royalties to you? Can you market the product or service to others?

What do you do if the vendor embedded other technology into their work? Do you owe additonal fees to that technology provider?

What do you do if the vendor did not even obtain rights to the intellectual property of others? Are you responsible? Do you have any recourse at all?

Service agreements are often presented as simple straightforward agreements by vendors. Don't be fooled into signing the agreement without understanding how it can affect you, not only financially, but legally.

As mentioned on our Services page, Maintenance Agreements (MA) and accompanying Service Level Agreements (SLA) are undoubtedly one of the key parts of a technology agreement and are the parts that get the least attention. This is a serious mistake.

Whether you choose to embed the MA and/or SLA into the overall software or managed service agreement, or negotiate it separately, you should take the time to make sure you get it right.

An MA and/or SLA needs to completely represent all facets of the support you expect to receive of the term of your agreement, and should clearly spell out what happens at the end of the term. What do your fees cover? Are you entitled to updates? What happens if the software or service fails? Is the help desk operated 24 hours a day? What is their response time commitment? Will they accept penalties if they do not meet this? Are you entitled to other services in the MA/SLA that you may not have even known to ask about? What happens to your annual fees at the end of term?

If the vendor is providing a managed service, how does the vendor protect your data? Do they provide consistent back-ups of your data? Do they have a disaster recovery plan and procedure? Do they actually test the plan? Can you see the results of their disaster recovery tests? What about privacy and security? Do they guarantee performance standards? How do they deal with third party issues that affect their product or service?

These are just a few of the issues you need to address. There are many, many, more. If you assume that the MA and/or SLA offered by the vendor will cover you for any need related to your technology agreement, you are in for a surprise. If you deal with these issues at the time of agreement signing, you won't get that surprise when you don't expect it.