Protecting Your Business Globally - David Snead, i2Coalition

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Protecting Your Business Globally - David Snead, i2Coalition

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Protecting Your Business Globally - David Snead, i2Coalition

  1. 1. Protecting Your Business Globally ResellerClub Hosting Summit 2013 W. David Snead Attorney + Counselor Tactical Legal Advice for Internet Business
  2. 2. • • • • Creating a global user agreement Negotiating with international vendors Optimizing your corporate structure Handling abuse issues
  3. 3. Vendors • • • • • • Term Warranties Intellectual property protection Fees Flow down provisions Assignability Terms of Service SLA • • • • • • AUP Customers Can you provide service during term? Carefully consider warranties IP is your most important asset Can vendor raise fees? Create integrated contract Keep in mind your exit Privacy Policy
  4. 4. TOS AUP Customer Privacy SLA
  5. 5. TOS • • • • Start with your vendor contracts Look at your marketing materials Consider your place in the market Reflect your home country’s laws • Amendment of the Your TOS should tell the truth TOS • Resource usage • Order process • Ownership • Fees and Payment • Termination • SLA • Warranties • Limitation of liability • Choice of law
  6. 6. • Start with your vendor contracts • Look at your marketing materials • Consider your place in the market • Don’t bite off more than you can chew • Asterisks don’t protect you Your SLA SLA is not just marketing • Technical staff must verify
  7. 7. • • • • Privacy Start with your country’s laws Look at your vendors contracts If you sell information: disclose that Understand cultural sensitivities • Describe “personal Privacy policies are contracts information” • Disclose of monitoring tools • Disclose sale of data • Consider data retention
  8. 8. • • • • AUP Start with your vendor contracts Look at marketplace Consult home country laws Consult laws of data location Lawful use Harmonize•your AUP with your • End users responsible for content vendor’s • Intellectual property issues • Unwanted content • Offensive content • Suspension • Notice address
  9. 9. Harmonize your AUP with your vendor’s TOS Your SLA is not just marketing AUP Customer SLA Privacy policies are contracts Privacy Your TOS should tell the truth
  10. 10. • • • • Creating a global user agreement Negotiating with international vendors Optimizing your corporate structure Handling abuse issues
  11. 11. • • • • • What are you required to do? What type of assistance will you get? What are your long term obligations? What are you giving up? Are you negotiating on price only?
  12. 12. General contract analysis. • • SLA Choice of Law How does the technology operate? • • Contract Scalability What is the level of automation? • Possibility of human error How do other companies affect the technology? • Destabilization
  13. 13. • • • • • • Reliability / SLA Security Privacy Skin in the game Choice of law Long term viability
  14. 14. Legalese Company shall provide to Customer an access code and the functionality set out on the particular page describing the functions and features provided by the Service. Company’s sole and exclusive obligation is to make the Service available to Customer as set out in the SLA. Plain English • You get access to the services Your vendors should stand behind their products and have “skin in the game.”
  15. 15. Legalese Company shall provide to Customer an access code and the functionality set out on the particular page describing the functions and features provided by the Service. Company’s sole and exclusive obligation is to make the Service available to Customer as set out in the SLA. Plain English • You get access to the services If you don’t understand the product, you should find or get assistance.
  16. 16. Legalese Title to XXX Units, including all patents, copyrights and other intellectual property rights shall at all times remain with XXX and its suppliers. MSSP acknowledges that XXX Units constitute a valuable asset of XXX and agrees to hold all such XXX Units strictly confidential in accordance with the terms and conditions of this MSSP Agreement. MSSP shall, use commercially reasonable efforts to minimize the unauthorized disclosure, publication, display or use of XXX Units. MSSP shall not copy, modify or reverse engineer any XXX Units, nor remove, alter, cover or obfuscate any copyright notices or other proprietary legends placed or embedded by XXX on or in any of the XXX Units. MSSP may not use any component part of the XXX Software owned by an XXX supplier as a standalone program or in any way independent from XXX Software provided by XXX to MSSP. Plain English • The company owns everything. • You own nothing. Intellectual property is your most valuable asset. You should keep yours.
  17. 17. Legalese Plain English Subject to the cancellation terms outlined • There is an early termination fee below (which are only applicable to the Pay attention to words like “year” and monthly and hybrid payment “term.” options), MSSP will be responsible for paying the full billable amount per user for the full year during which the termination occurs and a cancellation fee applicable to remaining years in the Term.
  18. 18. Legalese Plain English In addition to the foregoing, we specifically • You are responsible for disclaim all liability, and you shall be solely maintenance Understand upgrades, updates and responsible for the versions. development, operation, and maintenance of your Application (including any Bundled Application) and for all materials that appear on or within your Application and you agree that you shall, without limitation, be solely responsible for: any interactions between users of the Service
  19. 19. Your vendors should stand behind their products and have “skin in the game.” If you don’t understand the product, you should find or get assistance. Intellectual property is your most valuable asset. You should keep yours. Pay attention to words like “year” and “term.” Understand upgrades, updates and versions.
  20. 20. • • • • Creating a global user agreement Negotiating with international vendors Optimizing your corporate structure Handling abuse issues
  21. 21. • • • • • Who owns what Type of entity Tax treatment controls Place of formation Tax treatment Registered agent / corporate records agent
  22. 22. • How do you quantify your business? • • • • • Find a good tax advisor • Experience with the Internet • Experience with startups • Experience setting up systems • Experience with deferred revenue • Can advise on International corporate structuring. Revenue recognition Prepaid accounts Reseller issues Deferred revenue
  23. 23. SPAM Operational Issues • Real Time Black hole Lists / IP Blocking • CAN-SPAM Customer and Service Issues: • Marketing frustration • Customer Service Issues
  24. 24. SPAM Operational Issues • Real Time Black hole Lists / IP Blocking • CAN-SPAM Customer and Service Issues: • Marketing frustration • Customer Service Issues
  25. 25. Subpoenas and Warrants Any and all materials, containing any information…any and all back-up tapes which contain or store any electronic mail from any past or current…electronic mail accounts.
  26. 26. Subpoenas and Warrants • • • • • • Prepare for requests for production Amend TOS to require clients to bear cost Amend TOS to specifically address issue Determine your tolerance for risk Confer with parties early and often Assess costs of storage now
  27. 27. Subpoenas and Warrants • Review, Verify, Schedule , Comply • Relationship with law enforcement SPAM • • • • Termination for Abuse • Based on contracts • Determine procedure up front • Don’t rely on disclaimer of liability What’s the number for your lawyer? • Base response on contracts • Find someone with Internet experience Draft policy Post contact information Check complaint Develop relationship with RBL
  28. 28. All contracts are negotiable Don’t negotiate on price alone Understand flow down provisions Don’t lock yourself in more than 2 years Tell the truth
  29. 29. W. David Snead Attorney + Counselor Tactical Legal Advice for Internet Business david.snead@dsnead.com wdsneadpc / Twitter thewhir.com / Blog

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