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There is an old maxim that you should never get into a contract without the ability to get out of that contract. This is even more true with ERP-related contracts.

  • How do you walk away from an ERP contract with SAP or Oracle when that contract no longer works for you?
  • You may be unable to do it easily – especially if you failed to negotiate an expansive or flexible termination right.

ERP vendors like SAP, Oracle, and Infor offer discounts off the list price, expecting customers to purchase software for the duration of the contract.

  • They often include language

…
Continue Reading Terminating Or Cancelling Your ERP Contract With SAP, Oracle, Or Infor

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Oracle is known for being aggressive during the sales cycle and dismissive of any issues or concerns arising during implementation. Oracle’s in-house legal department is often unreasonable and unwilling to compromise.

  • I’ve litigated against Oracle, negotiated with Oracle, and mediated disputes with Oracle throughout my career.
  • Make no mistake: Oracle is difficult to deal with. Their salespeople are aggressive, their lawyers are difficult to deal with, and they rarely make meaningful concessions.
  • It’s a culture that starts at the top.

If you are considering suing Oracle for a failed digital transformation or ERP failure, make sure you know what you…
Continue Reading Thinking About Suing Oracle? Here Is What You Can Expect

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Is it better to arbitrate or litigate digital transformation disputes? Like most things, it depends.

  • Arbitration is usually less expensive and quicker than litigation.
  • You can select an arbitrator with ERP software and technology experience, and the dispute is confidential.
  • In some scenarios, you may have a panel of arbitrators.

Choosing the right arbitrator(s) is everything. Pick incorrectly, and the results can be disastrous.

  • Some arbitrators are more concerned about resolution than the merits of the case.
  • This can result in questionable rulings that are virtually impossible to reverse.

With litigation, disputes are governed by rules of civil procedure.

  • Rulings

…
Continue Reading Litigate Or Arbitrate An ERP Failure?

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As we often say, the Cloud is not a one-size-fits-all all proposition and it is not a silver bullet. It is a fundamental shift in how companies purchase software. It carries data security risks. If you need to customize the software to meet unique business requirements, the Cloud may not be ideal for your needs.

On-premise software traditionally consisted of a large up-front investment with a smaller ongoing maintenance obligation. With Cloud software, you are perpetually leasing software with the price increasing on an annual basis. It never goes down, and you can never stop the fee increases. Many Cloud…
Continue Reading Is Cloud Really Better?

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Over the past 20 years, we have been involved in hundreds of disputes involving failed ERP software implementations and Digital Transformation. While the specific facts are always different, the claims and allegations involving a failed ERP implementation or Digital Transformation are remarkably similar. If you are, or have been, involved in a problematic ERP software implementation, the claims, allegations, and counter-allegations outlined below will sound familiar.

Misrepresented Experience And/Or Skill Set:

  • Customer Allegations: (i) the ERP Software Vendor misrepresented its experience or skills in the customer’s industry or its experience or skills in implementing the particular software; (ii) the ERP

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Continue Reading The Anatomy of a Digital Transformation Failure

Contact: Marcus Harris

Technology Transactions

In today’s ever-evolving digital landscape and increasing reliance on technology, it is vital for organizations to have an expert legal team to assist with managing technology transactions. Taft’s Technology Transactions group is fully equipped to assess and manage legal matters related to technology with extensive knowledge, regulatory understanding, and practical experience to mitigate risk and enable companies to thrive.

Our services include advising on and safeguarding intellectual property rights, including patents, trademarks, copyrights, and trade secrets; technology-related contract drafting and negotiation; assisting in due diligence, contract negotiation, and regulatory compliance during technology-related mergers, acquisitions, and…
Continue Reading Taft – Technology Transactions and Other Technology Services

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The move to the cloud has been transformative, but negotiating cloud and SaaS contracts presents its own set of challenges.

The legal and business terms presented in cloud contracts are different from those in traditional on-premise software licenses. You have no greater leverage with your vendor to negotiate meaningful concessions than before you commit to a multi-year term.

I have negotiated thousands of SAP contracts. Understanding what concessions to request, what is reasonable, and what SAP is likely to concede is critical to getting the most out of the negotiation process.

In this video, I discuss the top concessions you…
Continue Reading I’ve Negotiated Thousands Of SAP Contracts. These Are The Top Concessions You Need to Ask For

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Contact Marcus:

  • Email: mharris@taftlaw.com
  • Work Phone: 312.840.4320

About Marcus

Marcus has established one of the country’s leading practices devoted to drafting and negotiating Enterprise Software related licenses, implementation and SaaS agreements, as well as litigating failed software implementations in courts and before arbitration panels across the country.

Read Marcus’s Full Bio on Taftlaw.com or download the PDF here.

Some of Marcus’s Recent Videos

AI Vendors will draft contracts that limit their exposure in the event of a lawsuit. What are the most likely issues litigated in a commercial contract for artificial intelligence?

#erp #erplawyer #erpcommunity #erpfailure #saps4hana #oraclecontracts…
Continue Reading Digital Stratosphere 2024 Recap

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AI Vendors will draft contracts that limit their exposure in the event of a lawsuit. What are the most likely issues litigated in a commercial contract for artificial intelligence?

Data is the currency of AI. You need to ensure that you are protecting your data and making sure you have recourse in the event your data is compromised. Negotiating the right contractual language is key to mitigating risk.

Data Security, Data Poisoning, and Confidentiality are all issues that arise when an AI contract goes wrong.

By simply entering data, confidential information, or intellectual property into an AI functionality, you could…
Continue Reading What Issue Are Likely To End Up Being Litigated In An AI Contract?

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AI vendors will typically use traditional software licensing or SaaS models to sell their functionality.

While that generally makes sense, nuances associated with acquiring AI functionality need to be accounted for and negotiated.

  • Warranties, remedies, and indemnity provisions all need to account for the risks that AI presents.
  • When acquiring AI, you need to understand the type of data you are entering into the AI software and what the AI vendor will do with that data.
  • You need to negotiate adequate warranties and representations to protect your and your customers’ data.

AI is transformative but presents a variety of risks.
Continue Reading Negotiating Commercial Contracts with AI Vendors

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Agile software implementation methodology contributes to ERP failure.

  • Drafting SOWs that include milestones, deliverables, and deadlines is challenging when Agile is utilized.
  • Its iterative approach is not compatible with holding your ERP integrator accountable.
  • Spending less time defining the product beforehand and trusting that the product will come together one iteration at a time is problematic.
  • Focusing on (i) developing working software over a comprehensive product, (ii) collaboration over contract negotiation, and (iii) responding to change over following a plan all create challenges when it comes time to enforce contractual obligations – especially when deadlines, milestones, and acceptance testing criteria

…
Continue Reading How Agile Contributes To ERP Failure

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70% to 80% of all digital transformations fail. While you can debate that statistic, the reality is that your ERP implementation will take longer than expected, cost more than expected and you are unlikely to realize your expected business benefits. But why and what can you do about it? I discuss these issues in my latest YouTube video. #digitaltransformation #erpfailure #erpcommunity
Continue Reading All ERP Implementations Are Different But They All Fail For Similar Reasons

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The move to the cloud has been transformative, but negotiating cloud and SaaS contracts presents its own set of challenges.

The legal and business terms presented in cloud contracts are different than in traditional on-premise software licenses.

In a cloud contract, you need to aggressively negotiate substantial discounts off of the list price of the software, you need to cap the vendor’s ability to increase prices in subsequent terms, and you should obligate the vendor to assist you in transitioning your data to a new vendor upon termination.

You have no greater leverage with your vendor to negotiate meaningful concessions…
Continue Reading There Are Critical Business Terms in Cloud Contracts That You Must Negotiate

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ERP vendors and integrators will emphasize the ERP software’s ease of implementation and fit for your business. It is not always true.

You must conduct due diligence, use a software selection process, and negotiate a strong contractual framework to manage the implementation project.

The software sales process is designed to minimize the complexity of the software, the implementation process, and functionality gaps.

How does this contribute to failure? Does it set up unreasonable expectations on the part of the customer? Who is responsible?
Continue Reading ERP Software Implementers and Vendors Contribute to Failure