On a superficial level, an Outer Continental Shelf oil and gas mineral lease is an ordinary two-party contract between the federal government and a willing third party, write Anthony C. Marino and C. Jacob Gower of Slattery, Marino & Roberts of New Orleans.

“However, an OCS lease implicates far more than the usual ‘four corners’ of the contract because lessees and their agents must navigate a labyrinth of rules and regulations to remain in compliance with their lease obligations. Given the large volumes of oil and gas production from the OCS, understanding this maze is a daunting, yet important, task,” they write.

SpringCM, provider of a global document and contract management solution for Salesforce customers, has announced Track It for Deal Visibility. The app provides sales and legal teams, contract managers, and executives insight into the status of any sales document – SOWs, MSAs, contracts and others – via mobile and desktop devices, including Salesforce1, according to a release from the company.

“Track It follows each document, giving users an understanding as to where the process is being held up. Users get unparalleled visibility to avoid contract bottlenecks and to help accurately forecast when deals will close,” the release continues. “Data on how long each step has taken in the workflow can then be rolled up into deeper analytics.”

“SpringCM’s Track It was built to monitor documents at crucial points along the contract lifecycle and to deliver key insights,” said Greg Buchholz, CEO of SpringCM. “Sales reps know precisely what needs to happen to get their contracts signed. For example, if I’m on my iPhone, I can launch the Salesforce1 app, click on my 10 opportunities, and know exactly where the contract and other deal-related documents like MSAs and SOWs stand in each of these 10 opportunities. This kind of intelligence is a market differentiator and available only through the SpringCM platform.”

The release continues:Sa

Track It works in conjunction with File It™, a powerful sales content management system for easily creating, storing, organizing, accessing and sharing documents from Salesforce objects like Accounts, Opportunities, Cases and more. Leveraging SpringCM’s Manage It™ functionality, users can create complex MSAs by selecting legal language from templates and clause libraries to speed the contract lifecycle management process.

“One way to look at the impact the Track It functionality has on contract management is in the context of shipping and receiving a package,” Buchholz said. When you have sent a package or are anticipating receiving one, isn’t it valuable to use the shipping number to know exactly where it is and when it is expected to be received? Well, SpringCM brings that level of visibility to all customer-facing deal documents, with the added ability to take action to accelerate them when they get bogged down. Sales has often said that contracts go into a ‘black hole.’ We bring light back to the process.”

Track It can be used in Salesforce or with any other CRM software, or directly within the SpringCM platform. Track It also aggregates data around contract workflows, giving decision-makers and salespeople historical perspectives to inform present and future contract matters.

To learn more, see this video.

About SpringCM
SpringCM is a secure cloud platform that manages contracts and all types of documents seamlessly across desktop, mobile and partner applications like Salesforce. SpringCM goes beyond standard contract management software with advanced workflows that automate manual tasks and complex processes to shorten contract cycles from weeks to days, and speed time-to-revenue. For executives looking to strategically leverage contract management to deliver immediate savings and accelerate revenue, SpringCM is the No. 1-rated contract lifecycle management (CLM) platform because of its superior technology, diverse capabilities, and low total cost of ownership. Every day, more than 600 organizations, including best-in-class companies like NCR, Blue Cross Blue Shield, and Wolters Kluwer, use SpringCM to streamline internal sales and legal operations, improve the customer experience and get more done, faster.

Myanna Dellinger of the University of South Dakota School of Law has posted a discussion of a recent case in which a judge faulted Uber with presenting its drivers with a contract that was “likely, frankly, to engender confusion.”

Dellinger wrote about the case in the ContractsProf Blog.

The underlying case is a class action lawsuit against Uber for allegedly misclassifying its drivers as “independent contractors” instead of regular “employees.”

“Whether this is an example of deliberate strong-arming or intimidating the drivers into not joining the lawsuit or simply unusually poor contract drafting may never be known. Judge Chen did, however, order Uber to stop communicating with drivers covered by the class action suit and barred the company from imposing the new contract on those drivers,” Delinger writes.

Read the article.

The New York Supreme Court ruled that the United Nations Convention on Contracts for the International Sale of Goods applied in a contract case in which the plaintiff claimed that the defendant had delivered a nonconforming product that caused $1.7 million in damages plus interest and costs to the plaintiff.

David Zaslowsky and Grant Hanessian of Baker & McKenzie wrote about the case on Lexology.com.

The court denied the majority of the defendant’s dismissal motion, finding the CISG “automatically” applies “when a transaction involves a sale of goods between parties whose places of business are in different countries and those countries are parties to the CISG.”

The case also involved the statute of limitations and the borrowing statute.

Read the article.

Sometimes rescission of a property purchase is better than suing for damages, which could limited to the difference between the price paid and the value of the property received, advises Khanh Tran on the blog of Continuing Education of the Bar ● California.

Although rescission makes particular sense when recouping the purchase price is more important than living in the house, it’s not always available, he writes. He advises checking to see if certain common grounds for rescission in the real property sales context apply.

Those grounds include mutual consent, mistake, fraud, failure of consideration, illegality and prejudice to public interest.

Read the article.

All bitcoin transactions are smart contracts, points out Chris DeRose on AmericanBanker.com. “Many institutions, which are increasingly exploring the use of blockchains for value settlement, have been similarly dabbling in the application and uses of smart-contract technology,” writes the community director of the Counterparty Foundation.

“Smart contract” essentially means “programmable money” or self-automated computer programs that can carry out the terms of any contract.

“The finer points of what programmable money is are still being worked out by enthusiasts, but most agree that it is a financial security held in escrow by a network that is routed to recipients based on future events, and computer code,” writes DeRose.

Read the article.

The term “big data” as it relates to contract management generally refers to data that is so large or complex that it cannot be processed by any traditional means, ContractRoom says in an article published on its website.

New technology allows for the analysis of this big data and this is changing the way business is being done. This is because the information generated by the analysis is leading to greater operational efficiency, cost reduction and reduced risk.

The article addresses methods of handling and analyzing big data.

Read the article.

Mitratech will present its software solution called “GettingContractsDone” (GCD) in a webinar Feb. 10 at 1 p.m. CST. The company says GCD was designed specifically for busy departments of all sizes seeking to manage contract creation, processing and execution with a powerful, yet easy-to-use and implement, contract management solution.

Organizations that typically select GCD as their contract management solution are:

• Small groups that need a seamless way to receive and work on contracts from any number of business stakeholders
• Legal teams that only need a system for their transactional (non-litigation) matters
• Organizations that require a single system of record to store historical contracts and generate reminders around milestones and renewal dates
• Contract teams that want a way to easily collaborate using a hosted solution

Register for the webinar.

As National Slavery and Human Trafficking Prevention Month, January 2016 offers the opportunity for federal contractors to reflect on the significant regulatory changes to the Federal Acquisition Regulation (FAR) that occurred in 2015 as part of the fight to end human trafficking in federal contracts, according to an article published by Venable LLP.

“For instance, contractors should take this opportunity to evaluate the effectiveness of the internal mechanisms established to comply with the new regulations. Contractors should pay particular importance to the effectiveness of their policies because noncompliance can lead to criminal, civil, and/or administrative consequences, as well as the declination to exercise options, contract termination, suspension of contract payments, and/or loss of award fee,” the article says.

Authors of the article are Paul A. Debolt, Dismas Locaria, Melanie Jones Totman and Michael T. Francel.

Read the article.

By Stephen Pinson
Scott & Scott, LLP

Software and service contracts come with many potential risks, and businesses should be mindful when initiating a new contract or a renewal. It’s considered a best business practice to negotiate the terms in a software or service contract before agreeing to the initial terms a vendor provides in the contract. There are many contract provisions that can be negotiated, but the major risk provisions found in most contracts are the following: (1) Limitation of Liability, (2) Indemnification, and (3) Warranty. These contract provisions must be considered in conjunction with one another because they cannot be effectively negotiated without determining how they affect each other.

Limitation of Liability ranks as one of the top contract provisions negotiated in a software contract. The limitation of liability limits each party’s liability for breach of contract or list of damages for all sorts of harm. A software publisher’s liability is usually limited to the amount of fees paid to the vendor or a fraction thereof. The risk in not negotiating these terms is that the licensee is capped at the amount of damages. This cap may not equate to the actual amount of harm. The best way to negotiate these contract provisions is to write the provision in such a way as to: (1) increase the damage cap, (2) negotiate insurance coverage, or (3) negotiate a limitation carve-out that excludes certain type of claims from the limitation of liability.

An indemnity clause requires one party to bear the monetary and defense costs, either directly or by reimbursement, for losses incurred by a second party. It shifts potential costs from one party to another. One potential claim is an intellectual property (“IP”) infringement claim. The licensee may seek reimbursement for costs incurred in defending a claim by a third party that the licensed software infringes on the third party’s IP rights. For this reason, licensees should be careful to negotiate appropriate protections for third-party claims.

The best way to negotiate this contract provision is to include indemnification provisions that the software or service provider will be responsible if the licensed software infringes the IP of a third party by requiring the software or service provider to do the following: (1) purchase a license to the infringing code in order to be able to legitimately provide it to you; (2) modify the infringing code so that it no longer infringes the third party’s IP rights; (3) replace the infringing code with code that does not infringe the third party’s IP; or, if none of the above solutions are possible, (4) the software vendor will refund the license fees (but be careful, the license fee rarely will be enough to compensate for losses suffered if the software vendor has infringed a third party’s intellectual property). There are also indemnification provisions that can be negotiated for harm that is suffered from a service provider that provides services on business property, such as bodily injury, death, or damage to real or tangible, personal property resulting from the negligent or willful acts or omissions. These also need to be carefully negotiated to avoid any potential risk.

A warranty in a software or service contract is (1) a formal promise by a vendor that the product is defect free or that the service will be performed in a workmanlike manner, and that if it fails to do so, (2) how the vendor will go about rectifying the defects in the product or service. The best way to negotiate this contract provision is to include warranties that promise to protect the licensee from failures of warranty. The warranty section should include some of the following warranties: (1) the software or service provider has necessary equipment and trained personnel to perform the services consistent with industry standards, (2) the services will be performed in workmanlike manner (3) the software or service provider will comply with all applicable laws (4) the software or service provider warrants that it maintains an information security process with physical safeguards appropriate for the sensitivity of customer information (5) warrants that the software will perform its functions and (6) warrant the software shall be free of material or hidden defects.

Remember, it is always important to seek advice from experienced counsel in order to understand all the risks involved when negotiating software and service contracts.

Relying on “basic principles of contract law,” the Supreme Court has held that an unaccepted settlement offer and offer of judgment under Rule 68 are “legal nullit[ies]” that have no effect on whether a live controversy remains between the parties, according to an analysis written by BakerHostetler’s Jacqueline Matthews and Rand McClellan and published on JDSupra.com.

The case is Campbell-Ewald Co. v. Gomez, No. 14-857.

“The upshot of the Court’s decision is that a defendant cannot moot a putative class action by merely offering full relief to the named plaintiff on his or her individual claims,” the authors write. “The Court, however, expressly left open the question of whether payment of full individual relief could moot the case.”

Read the article.

A couple of words here or there in a contract can make a huge difference, particularly when those words relate to what happens if there is a breach or some other dispute between the parties, writes Shep Davidson in Burns & Levinson’s blog, The In-House Advisor.

He discusses the case of Family Endowment Partners, L.P. v. Sutow.

That case involved a lawsuit that resulted in a $48 million award to the plaintiffs in a ruling issued by an arbitrator. Part of the award included triple damages. Davidson explains how some simple changes in the contract could have avoided much of the defendant’s loss.

Read the article.

A fired contingent fee attorney can’t enforce a provision in his fee agreement requiring a client to pay the lawyer 20 percent of his eventual recovery if the client changes counsel, a divided Pennsylvania Superior Court declared Jan. 5, reports Bloomberg BNA.

“Enforcing the termination provision would penalize the client for exercising his absolute right to end the attorney-client relationship, Judge Kate Ford Elliott said in the majority opinion. In this situation, Elliott said, lawyers are limited to recapturing the reasonable value of their services, but that award can reflect the extent of the lawyer’s contribution to obtaining the client’s recovery,” the report explains.

“Just as a lawyer may not charge an exorbitant fee or place a ‘no termination’ clause in the contract or assert a vested interest in a client’s claim, a lawyer may not penalize a client for discharging him or her,” Elliott wrote.

Read the article.

There are few reasons a court will treat a contract it as if it never existed at all, and those limited reasons center almost exclusively on a widely pervasive misdeed that is difficult to detect, such as resume fraud, writes Jennifer B. Rubin of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo.

“Resume fraud is not, of course, limited to educational credentials,” she adds. “Title and salary inflation abound as well as falsified job experience.  Setting aside the moral discussion, the question is whether fraudulent credentials provide a basis for annulling an employment contract.”

She explains that the key to having a court grant an annulment and permitting the employer to avoid any contractual promises made to the employee based on the fabricated credentials is that the criteria at issue be material to the employer.

Read the article.

ContractRoom has published a discussion of the use of predictive agreement in the purchasing or procurement process.

“Past data is used to help improve the procurement and contracting processes so agreement can be reached more quickly and predictably,” the article says.

The process not only ensures less time will be spent in the procurement process and negotiation, but also that a fairer price (and conditions) will be agreed upon, it continues.

Read the article.

eSignLive has published a white paper that’s designed to help secure the enforceability of electronically signed contracts and agreements.

“Today, businesses of all sizes are moving their customer transactions to the web. As the adoption of electronic signature technology grows, so does the number of e-signature solutions in the market,” the company says on its website. “Because these solutions are all ‘ESIGN/UETA compliant,’ you may think they will all provide the same level of enforceability in the event of a dispute. This is false.”

“Using an electronic process to capture a customer’s signature provides stronger evidence than is possible with paper and more importantly, has been proven to reduce the risk of legal disputes. But what exactly is “electronic evidence”? What are the best practices for capturing and archiving all the digital fingerprints that customers leave when they transact with you online? How can this evidence help enforce e-contracts? And how can you use it to avoid going to court altogether?”

The white paper, which can be downloaded, presents the recommendations of three legal experts: Pat Hatfield and Greg Casamento, partners at Locke Lord LLP, and Frank Zacherl, litigator and partner at Shutts & Bowen LLP.

Download the white paper.

Winston & Strawn has compiled a list of more than 20 major news developments involving contract settlements and ongoing contract negotiation during the final month of 2015.

The list is published on Lexology.com.

Read the article.

The recent problems experienced by Finish Line should be instructive to all users and providers of technology products and services, according to a report posted by FisherBroyles LLP.

The Indianapolis specialty retailer acknowledged a problem with deployment of a new warehouse and order management software system. Stores sales dropped 5.8 percent due to the disrupted supply chain issues that failed to maintain adequate inventory to meet demand in its stores. And the company replaced its CEO.

Such situations often result in major litigation between customer and vendor, and often claims by shareholders of the customer, the report says.

It lists concerns that should be addressed by customers and vendors when drafting such agreements.

Read the report.

The typical reinsurance contract arbitration involves a tri-partite panel of arbitrators, with each party appointing an arbitrator and a separate process governing appointment of the third arbitrator (known as “the umpire”),” according to a white paper published by Sidley Austin LLP and available on Lexology.com.

Most arbitrations run smoothly, the paper says, but “arbitrators should be ready for the exceptional case, which can be occasioned by another arbitrator or counsel. The remedy for rogue behavior may rest within the panel, or it may require judicial intervention. Judicial relief can be hard to come by, given the procedural and substantive hurdles to be cleared; but the truly egregious case has a way of catching a court’s attention.”

The article examines some examples of panel breakdown and how they have been addressed.

Read the white paper.

The law you choose to govern your contract may not be the law that governs the applicable statute of limitations for claims arising under or related to that contract, writes Glenn West in Weil, Gotshal & Manges’ blog, Global Private Equity Watch.

“Standard choice of law clauses do not in fact choose all of the law of the chosen state; many unknowingly only choose some of that law and that part of the chosen law may only apply to claims in contract but not in tort,” he writes.

The bottom line, West says, is that “unless your choice of law clause specifically states that the statutes of limitations applicable to claims arising under or related to the contract are also governed by the contractually chosen law, the statutes of limitations applicable to the claims governed by the chosen law will be the applicable statutes of limitations of the forum state where the claim is made.”

Read the article.