Negotiating and Drafting IT Agreements

Focusing on critical development methodologies and the ethical elements most likely to be at issue in any software or technology situation, we strongly encourage you to view both Online Primers before module 1. You can view anytime.
Online modules are mobile‑friendly.

Understanding IT System Development Methodologies

This module provides you with the technical background you need to hit the ground running:

• Establishing scope, planning and specifying requirements
• System design
• Development/build stage to implementation/ rollout
• Third party contracts

Navigating Ethical Issues in IT Transactions

This module will teach you everything you need to know to handle thorny ethical issues, including how to address conflicts of interest and when the duty of good faith applies in negotiations.

Foundations of IT Agreements

Module 1 will provide you with the foundational knowledge you need to maximize your understanding and participation in the remainder of the certificate. You will learn the critical IP and technological aspects of IT contracts, systems and development, as well as the key cross‑border issues to consider in IT agreements. The day will end with a primer on negotiation techniques.

Essential IP Elements & Concepts

• Aspects of IT that can be protected by trade secret, copyright, patents, and trademark laws
• How is IP obtained, registered and enforced?
• What is legally protectable confidential information?
• Independent creation as a defence to infringement and risks arising from joint ownership of IP
• What rights do employees and independent contractors have in the IP they create?

Understanding the IP in Your IT: Intellectual Property Considerations Critical to Your Technology Agreements

• Identifying the IP and its ownership; potential pitfalls arising from joint ownership of IP
• Copyright, trade secrets, confidential information, outsourcing, M&A
• Characterizing IP involved in the transaction: foreground versus background IP; base product versus customization; methodologies versus work product
• What rights do employees and independent contractors have in the IP they provide as part of technology development?
• How information technology agreements can impact M&A transactions

Key Components, Players & Activities in IT Systems

• IT development, deployment, integration, migration and maintenance: who does what?
• The roles and interests of the key players: Systems Analyst, Programmer, Project Manager, etc.
• Typical life cycles of software development, licensing, customization and sale

Reseller & VAR Agreements

• Understanding terminology and distinctions: Resellers, VARs and distributors
• Exclusive vs. non‑exclusive agreements • Key rights/obligations of Resellers and VARs vs. key obligations of Vendor
• Pricing/payment arrangements
• Term/termination, representations, warranties and indemnities

Risks and Liabilities from a Technical Perspective

• Data loss, data integrity
• Scope creep, integration risk
• Limitations of testing, bugs and defects
• Interaction with legacy systems and interface with other systems
• Vendor control of technology architecture

Critical Cross‑Border Issues in IT Contracting

Increasingly, the scope of technology agreements reaches beyond Canada and may engage foreign parties. Learn the multi‑jurisdictional issues that affect IT contracts,includes factors affecting the scope and terms of cross‑border agreements and the protection of IP rights and confidential/personal information across jurisdictions.

Negotiation Techniques for IT Agreements

• Can you win without negotiating? Due diligence and preparation for negotiations
• The effect of timing on negotiations • Structure of negotiations/parallel negotiations
• Creating your BATNA
• How does uncertainty and lack of information affect negotiations?

Take‑Home Drafting Assignment: Distribution The take‑home drafting assignment will be distributed. This assignment is expected to take about 3‑4 hours to complete and it will be due the week after module 3.

Privacy/Security; Software Development

Module 2 will continue to examine the essential underlying concepts required for negotiating and drafting IT agreements. The discussion will drill down on strategies to allocate liability in an IT contract, and security and privacy issues. The focus will shift to examining specific types of IT agreements, including software development agreements. The day will conclude with an interactive demonstration to highlight best practices and tips for negotiating performance warranties and guarantee clauses.

Allocating Liability in the IT Contract

• Thinking through limits of liability, disclaimers, waivers and related clauses
• Liability issues associated with privacy, security and confidentiality
• Indemnities and how they are structured

Security Issues in IT Transactions

• Types of security risks: data integrity, transmission, access control, and more
• Methods for ensuring security of information and dealing with spyware

Privacy Issues Affecting IT Transactions

• Privacy overview and common traps in various IT transactions
• The impact of the US and EU laws
• Audit issues: reporting, recording and disclosure of security and privacy measures

Drafting and Negotiating your Contract with the Judge or Arbitrator in Mind

• Special short session highlighting the importance of keeping the Judge and Arbitrator in mind when drafting

Confidentiality Agreements and Escrow Agreements

This session will examine two key but under‑appreciated contracts: Non‑Disclosure Agreements (NDAs) and Source Code Escrow Agreements. Learn how to minimize the risks of disclosing and receiving confidential information, as well as the common problems and pitfalls with escrow agreements.

Development Agreements

• A developer’s perspective: key assumptions and their implications
• Failure rates and remedies, includes non‑financial, non‑performance and providing for escalation and dispute resolution procedures
• Understanding vendor/developer interests: key pitfalls purchasers should watch out for
• Incorporating development documents into the legal agreement

Demonstration: Negotiating Performance Warranties & Remedies

You will have an opportunity to observe and interact with a live negotiation from the perspective of both supplier and customer. The panel will examine various negotiation positions and provide guidance on the strategic use of language when drafting these important clauses.

Take‑Home Drafting Assignment: Discussion/Q&A You will have the chance to clarify your outstanding questions on the drafting assignment. This assignment is expected to take about 3‑4 hours to complete and it will be due the week after module 3.

Fundamentals of Key IT Agreements

Module 3 will continue to examine specific types of IT agreements, including outsourcing, support and maintenance and software licensing agreements. Expert faculty will deliver our second interactive demonstration session, focusing on the negotiation of a License Agreement from the perspective of both supplier and customer.

IT Outsourcing Agreements

• Forms of outsourcing, including: cloud computing, SaaS, and shared service arrangements
• Specifying service levels in the agreement: multi‑sourcing and sub‑contractors
• Indemnities and limitations of liability
• Change of control and governance
• Benchmarking and other price/innovation clauses

IT Support and Maintenance Agreements

• How to select the type of support coverage
• Characterizing errors and problems: anticipating and avoiding disputes
• Software updates, upgrades & support for old versions, hardware support and maintenance
• Standard versus customized packages, includes online versus on‑site support

Software Licensing Agreements

• Portal access license vs license agreements: pros/cons from licensee and licensor perspectives
• Software bundling: issues arising from inclusion of 3rd party products, rights in derivative works
• Object code vs source code license agreements
• Relationship between software license, consulting services, maintenance and support
• Maintaining and Insuring

Open Source Software Licensing

• Benefits and risks of open source software: mixing open source and proprietary software
• Types of open source software licenses: addressing open source software in your business model
• Trends, policy approaches and issues to watch out for

Demonstration: Negotiating a License Agreement

Observe senior practitioners negotiate the key elements of a License Agreement, and learn tools to effectively address issues including payment terms, scope, ownership of IP, strategies for negotiating value‑adds, and governance provisions.

Drafting Assignment Deadline
The drafting assignment will be due this week after module 3.

Interactive Drafting & Negotiation Workshop

NOTE: Due to the interactive nature of this workshop, live online attendance is required for this module. This module will not be recorded.

In module 4, you will have an opportunity to put into action what you have learned. The day will feature small groups, interactive workshops, plus a presentation on advanced negotiation techniques.

DRAFTING WORKSHOP & ASSIGMENT REVIEW: License Agreement

Get personalized feedback on your drafting skills and gain strategies, best practices and model drafting clauses from highly experienced faculty.

Instructional Session: Advanced Negotiation Techniques for IT Agreements

Building on the negotiation techniques primer delivered in Module 1, you will learn about using Game Theory and Behavioural Economics in your negotiations, as well as how to conduct a self‑assessment of your negotiation skills.

NEGOTIATION WORKSHOP: Tying It All Together (Mock Negotiation)

In small groups, you will engage in a mock negotiation representing either the vendor or customer. Your performance will be assessed and you will receive feedback from an expert facilitator, including guidance on areas for improvement.

After the live negotiations, you will benefit from a master debrief and group discussion.