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[Music] okay welcome back to transformation ground control podcast my name is eric kimberling i'm here with grisa noble you know thank you for for being here today and what i wanted to do before we get to our first guest is just to remind you to please subscribe to the youtube channel follow third stage and follow myself on linkedin twitter facebook whatever your social media platform of choices you can also subscribe to this podcast in audio formats on apple podcast google spotify pandora whatever your podcast preference of choices and so we publish these weekly podcasts once a week every wednesday morning us time is when we we go live on on youtube with the the broadcast and then we also have um distribution to the podcast platform shortly after that so encourage you to be sure to subscribe on whatever platform you prefer to watch or listen to us on so next guest here our first guest i should say is marcus harris he's going to talk about contract negotiations and contract negotiations is one of those things when especially if you're buying or acquiring new technology for your business if it's uh you know financial or accounting software or enterprise software human capital software whatever it may be crm sales force and all those sorts of different technologies you might be acquiring for your business there's a lot of hiccups and gotchas that you want to watch for and that's what marcus harris specializes in so we thought we'd pick his brain a little bit and ask some questions around best practices and lessons from his experience helping clients negotiate contracts and in some cases he also will help when there's a lawsuit involved too and that's actually how i got to know marcus was i testified as an expert in one of his cases several years ago as an expert witness and we've continued to work together over the years on multiple cases and he continues to be a a friend of third stage consulting we work very closely together on a number of engagements through the years so with all that being said i want to welcome marcus to the show marcus thanks for being here today yeah well thank you for having me eric it's always a pleasure to talk to you good so as companies are thinking about their their contract negotiations and getting ready for the acquisition of new software and the services that go along with that uh there's a lot a lot to think about a lot of times we hear from clients that their heads are spinning in terms of the number of things they need to think about or maybe not necessarily understanding the the details of the t's and c's of the of the different contracts they're signing but from your perspective since you do this every day this is what you specialize in in terms of of negotiating contracts and helping your clients negotiate contracts if you were to summarize for for listeners today why is effective contract negotiations so important well i mean i think the the way that i look at it really is it's it's it's an opportunity for you to come to some sort of a meeting of the minds with respect to what your expectations are or how that project is going to be whose responsive goal who's responsible for what aspect of that project and it really is part and parcel in my view to having an effective contract or not not necessarily contract management process put in place but but an effective project management process contract management is certainly one thing and one aspect of of the contract negotiation itself but i think fundamentally you want to approach the contract negotiation process as a as a means for being able to manage your relationship with that vendor for really you know the duration of the project and potentially beyond the duration of the project depending on what kinds of services are going on basis so it really is an opportunity that you need to take advantage of and i think you've got to look at it from at least two perspectives one i think you know i'm an attorney so i'm going to recommend that you look at it from a legal perspective and it's a contract with terms and conditions so you're kind of forced to look at it from that perspective but if that's the only way you're looking at it i think it really is a missed opportunity because like i said fundamentally it's it's one of the only chances that you're going to get on the front end to be able to put in place a process for managing your relationship with vendor and that's incredibly important right right so along those lines then when you're helping your clients through this process and and you're either leading the negotiations or advising your clients on how to negotiate with with vendors what are some of the biggest pitfalls or traps that you see your clients walk into or they have the potential to walk into during the whole process yeah i think there's really two answers to that question i think from a client perspective where i think clients make a huge mistake is really is really focusing on the amount of discount that they're going to try to negotiate so you know it it's that's certainly an important aspect of of the negotiation process what what are you going to get out of this fundamentally right i want to get you know the best deal that i can get but if you're just focused on the the amount of discount you're getting off of list or you know the pricing structure of a contract you're really missing out on an opportunity and i think what you want to do is use again the contract as a tool for putting in place a process for managing your relationship with the vendor and it takes a variety of flavors i mean if there's a change management process that you can negotiate you're also going to want to see if you can put in place especially in this environment you know some kind of dispute resolution process that is short of a litigation process and maybe even short of perpetration so that's that's one area where i think um clients make a mistake is focusing on price to the exclusion of everything else and i think if that's the way you go about it you know you're you're missing an opportunity to negotiate things in that contract that will impact price much more than any kind of an initial discount that you might appreciate the other uh way i look at that question and a common pitfall is to some extent it's more of a of a teas and sees issue i think if you're focusing primarily on you know kinds of the these kind of abstract legal concepts that are certainly important you know look you know getting a warranty and non-infringement um you know service warranties with respect to performance those are all key issues that you want to negotiate but sometimes i think you can negotiate and focus on those to the exclusion of some of the practical things that might matter they're in a contract and that's where having really experienced counsel that understands not only the legal terms and conditions but how these things play out from a practical perspective in real life you know one example would be you know negotiating a limitational liability is like i said it's important but you know depending on the value of the entire deal you're going to want to take a different approach to that and you know having you know some kind of multiplier of the limitational liability on something that's that's a project that's that's low in dollars that may or may not make sense it just depends on how that really is going to play out what type of you know functionalities being being implemented and what the risk is and what the relative position from a negotiation standpoint or a leverage standpoint of the two parties is right yeah and i want to come back to something you mentioned uh around negotiating not just with with software vendors but there's also more the the services side you talked about change management things like that so i want to come back to that in a second have a follow-up question for you there but i guess just sticking with the the software vendor side of things if we think about this as sort of a two-pronged negotiation approach typically where you're negotiating the software and then you're negotiating the services to go with it when we think about the trend towards cloud and more subscription-based pricing and subscription-based models what what are some of the nuances to watch for there how is that different than negotiating what we might have negotiated in the past with our on-premise sorts of contracts yeah i mean i think there's two things that jump to the forefront really when you're talking about the difference between on-premise contracts and subscription-based contracts and i think fundamentally when you're getting into a subscription-based contract you're you're going to want to understand the process by which you can get out of that contract okay because the the vendor's goal is a little bit different they want to have automatic renewals they want to have automatic price increases and your goal as a customer is really to have the most flexibility that you can but you also have to understand that you know to the extent that you're getting into that kind of a deal a subscription-based deal the discount is going to be to some extent directly tied to how long that bill is so the vendor wants to sign you up for as long as it can with as little flexibility as you as they can give you whereas you have the opposite goal and you want to have you know short uh time commitments with maximum flexibility to get out and and adopt a new system and replace that system so that's that's one thing and i think one of the other things that comes to mind really it's all about data right on in an on-premise solution you know it's a perpetual license that for to to software that's going to be primarily located on site on servers you know in your building and just to to a large extent i mean your your i.t department's going to be responsible for managing and maintaining that data and accessing you know personally identifiable information of your customer base and your employees as well when it's in the cloud it's really a whole different environment and you really want to understand how your data is handled by whatever vendor you're talking about you know is it is it bundled with other companies data um what kind of data protections do they have what about some sort of data breach or data incident how is that going to be handled and who's going to be responsible for it and what kind of limitation the liability is going to be uh is that going to be subject to because you want to make sure that if something like that happens with your data that you know you've got real remedies under the contract that make you whole so you know it's it's substantively different in certain ways i mean you know fundamentally i think you know you're getting a license under both scenarios but there are different things that you need to focus on to make sure that you've got real remedies um that address the problems that are likely to happen in both different types of environments right right yeah and in addition to cost like you mentioned there's a lot of other things you just talked about as far as non-financial non-cost related issues to be thinking about or negotiating through but back to the point of cost in the difference between cloud and on-premise you know we've seen in our experience that a lot of times that there's hidden costs and escalators and things of that nature that uh even if it's not your number one priority is to contain those costs those things can sort of sneak up on you and those are clauses or kickers that weren't necessarily there when you were negotiating your on-premise systems however many years ago so what are your thoughts on on you know just purely the cost side of cloud contracts and some pitfalls there versus the more traditional on-premise yeah well and that you know that's a nuanced issue and i think it's a good issue to talk about because you know for years i think there's been this kind of mantra of the cloud and i think it's you know most of the contracts that we negotiate today and most of the contracts that we litigate today are certainly subscription-based agreements they're cloud agreements and that really is just the way the industry is going but you know the mantra that the cloud is cheaper and that it's less expensive and you don't need as much to you know get the same system as a big company i think there's some truth to that but underlying it all and you suggest this yourself is that if there are enormous pitfalls with respect to ongoing costs and fees and escalators and that kind of thing and you know you you really have to understand what you're getting yourself into and to make sure that you that you negotiate proper discounts um that you're not unnecessarily locked in there aren't you know just the vendor isn't at his discretion with respect to the kinds of price increases that can happen year over year you've got to make sure that you've got the right caps in place that you can manage that contract appropriately because once you're once you're in it you know it's really hard to get out of and i don't think that people think about that necessarily i mean you know when you're running your entire business on a cloud-based product just switching it you know in a matter of months is not necessarily something that you can do and the vendors know that and you know their goal in a very real way is to lock you in and to you know charge you money uh for their services and to to some extent extract fees from you on an ongoing basis you know and you know that that has kind of a negative conversation i think that's really what you know these sales people try to do get you get you on their system make it hard for you get out and you know build bill you as much as they can and you've got to be aware that on the front that that's going to happen yeah yes it's almost creating uh higher barriers to entry or making the switching cost higher for you in these in this new world of file contracts yeah no that's absolutely true and i think you know what goes hand in hand with that it's not from a everything everything relates back to cost fundamentally but you know it what what you have to make sure you account for not in addition to just cost increases in general and discounts and putting some kind of control or cap on the vendor's ability to do that is how do you get your data out of that system right i mean what what kind of obligation will that vendor have with respect to pulling your data out and giving it back to you because what you don't want is to walk right into a situation where your data is held hostage and you know i'm not saying that that's the intent of any kind of vendor but a lot of times the contract language doesn't obligate them to do anything with it and sometimes you know there's a fee for transferring your data or you know having some kind of a transitional use right or transitional services to another and you know that you've got to make sure that you go in with open eyes and that you're you're able to mitigate any kind of cost associated with that because for me there's two competing interests in either type of agreement whether it's a premise on-premise document or if it's a subscription agreement and you know the the vendor's goal in every one of these agreements is to know put as many restrictions on you as possible with respect to your use of that functionality and to capture additional revenue streams on an ongoing basis right so it's here's here's the use usage metrics user account here's what this type of functionality does if you want to add different types of functionality there's going to be a cost and that's fine that's that's just the way it is and that's to be expected but the user's you know competing interest i think very much is to have as much flexibility as possible so the goal really is to the extent you can get there is to have as much indicia of ownership over that functionality that technology software as you possibly can have in the context of the license or the subscription so you know it's it's about having flexibility to run your business the way that you want to run your business without having to be constrained by the vendors um fences around your relationship with that piece of technology um or to the extent that you need to at least know what those fences are and what the fee is so if you know that then i think you you're well ahead of game right right well that's great great advice but one thing i wanted to do is shift gears a little bit and talk more specifically around system integrators or vars resellers implementers whatever you want to call them basically the implementing partner that's going to help you implement the technology and you alluded a little bit to this earlier in in the conversation but when we think about negotiating with system integrators or the implementers what are some of the nuances of negotiating with them some of the things to be watching for yeah well i think i think really it's a whole different game right because when you're negotiating with a software vendor the negotiation points are fundamentally different and i think what you you've got to realize on the technology side and there's some qualifications to this but look generally if you're using a first second even third tier software provider you know the technology works okay and it it absent some issues um associated with being you know oversold or misrepresenting certain types of functionality you know that's not usually why these things fail these implementations okay it's it's very rarely and i don't think i've ever seen it be a purely technical issue where the software or functionality just didn't work it's usually one of two things one it's a fraudulent inducement or negligent misrepresentation scenario and those are just fancy legal words for for software being oversold by an overzealous sales team okay they're either entering that vertical for the first time and they really want to get in there they don't really know you know what what the gaps and functionality are so they oversell it or they minimize them and you know you buy that software and then it doesn't work the way it you anticipated okay that that's a fundamentally different issue though then i think it's just not working right but you know that that's one bucket of issues um that i think you need to be cognizant of when you're negotiating with your software vendor but where it's more likely to fail is because of a people issue and the people issues are fundamentally going to be contained in the integrator or implementer documents so the the master services agreement the consultant agreement and the subsequent statements of work associated with the project and you know the the good thing about it though i think if you go in with eyes wide open then you've got a real opportunity with the negotiation of that contract to put stop gaps in place on the front end that are going to minimize the likelihood that your implementation results in a failure so what are some of those stop gaps that you put in well you know you want to have the ability to manage the the types of consultants that you're going to get you want to make sure that they're primarily focused on your application there's a whole bunch of legal ways to do this but what what we see regularly and it doesn't always result in failure but we see you know you get promised essentially the 18 okay and then you end up with the d team and it's it's sometimes because a bigger customer comes along that sucks up all the resources and it's a more profitable project for for the implementer and so now you're left with kind of you know the bench that really isn't as good as what you thought you were going to get so now you take a second video second place to to this other customer that happens on a pretty regular basis but you know the good thing is though you can put in language and contract that minimizes likely that it's going to happen and to the extent it does happen then you got a process from dealing with it so it's those types of things that you want to think about on the front end so that you don't have to deal with them on the back end and make no mistake about it when i say back end i mean you're through a lawsuit or litigation or through a failure you know so if you can do as much as you can on the front end with these implementation agreements these consulting agreements integration agreements to manage that team then you're really putting yourself in a successful position and you're minimizing the likelihood that you're going to have a failure so i think that's you know one of the biggest things to watch out for and it's it's not a technology issue it's a people issue right right now do you do you notice a difference between negotiating with some of the larger system integrators and implementers versus the smaller more boutique ones are there are there different types of issues you worry about i'm sure there's a lot of commonalities but are there differences or things you worry about one over the other or any any difference there yeah i mean you know there there are and i think when you're dealing with a smaller firm um you really want to make sure that you've got language in there that really minimizes the likelihood that they're going to have resource issues with their consultant now you want to make sure that they are assigning the people that expect to be assigned to that project that they're going to be there from the beginning to the very end to the extent you can do that and their issues with that is to minimize to come to an agreement with somebody like that i think generally though those those types of companies are less sophisticated the agreements are worse they take longer to negotiate when you're dealing with the accentures or the geminis of the world you're dealing with a much different type of animal but you know fundamentally the issues are the same but you've got to deal with it and come at it from a different type of perspective you're usually going to have within the four quarters of their contract and their sows and you're going to have to be suggesting language to them they may already have you know their their built in ways for dealing with things you're going to have to adapt to using you know their clauses their provisions um and working with that to make it work for you you know because you know remember you know all these companies that you're going to deal with they're going to give you concessions but the language at their couch that language would be incredibly unreasonable it's going to be one-sided so we're going to have to modify it to make sure that it addresses what your concerns are while at the same time addressing their concerns and i think the biggest risk you've got with one of these large scale implementers the capgeminis or the accentures of the world is that they they use your project in one of two ways right they they see it essentially as a cash cow um that doesn't have an end that doesn't you know they don't have much regard for an agreed upon scope they'll put language in the statements of work that minimize your ability to manage the scope or manage the project and you've got to watch out for that the other thing that they sometimes do is they use your project as a training ground for unqualified or incompetent even consultants and you've got to manage that as well there's actually a term that i learned from you you know you don't want to get exceptional right and that's that's something that i think they they can pump the billable hour through a project and you've got to minimize their ability to do that and make sure that you have the the contract tools in place to manage that scope because if you don't you know you're going to spend an incredible amount of money you know whatever scope estimate or budget estimate they gave you in the beginning you're going to flow through that quickly and you're going to be many months into your project or years into your project you're not going to be anything and you know that happens all the time frankly and we have clients that come to us and say what do i do now yeah yeah i look back in my career and look at how i started and that's how i started i worked for a big system integrator that taught me about consulting but i learned about it on clients times and there was a lot of people there like me that were you know just off the school bus so to speak just out of grad school or out of business school and you know you're learning on the client's time so i think that's a really good advice and you know also it gets back to transparency and also control of the project who actually controls the project and owns the project do you own it or does the system integrator and var on and i don't know if you run into that issue i know at a later date we're going to talk about failures and lawsuits but without going too far down that path i mean what are some of the the nuances there or some of the challenges you've seen well that that's standard you know integrator language you look at an sow and you know the assumptions section of that sow become incredibly important what happens is that they say that they're working for you at your direction and they essentially try to wash their hand of the project as much as they can from a management standpoint that they're going to take their direction from you but the problem with that is you know the life cycle of one of these systems is i don't know 15 years 20 years so the likelihood that you know anyone in your organization has substantive project management experience that's recent is probably minimal you're not going to understand how to manage that project and they're going to take advantage of you you know they do it all the time and so you know the key is again you know putting in milestones deliverables deadlines dates a rigorous train change management process that holds them to account because if you do that then i think you minimize the likelihood that you're going to get accentured so to speak right and i think it's imperative upon you as a customer really to make sure that you're bringing in outside consultants um or to the extent you've got house experience they rely on that but you're just going to be outmatched if you don't have people on your team managing your project you know both from just a day-to-day management perspective and really from a change management perspective that becomes important this day and age to get the right kinds of consultants on board because you know if you don't i think you increase the likelihood of a failure and the cost you know that you're going to expend on these types of consultants it's going to be minimal when you compare it to you know having to go through right setting a project potentially getting lawyers involved and abandoning whatever whatever functionality or software that you were trying to implement and starting all over and unfortunately we see that pretty pretty regularly and dip that in the bud um some planning and uh proper resource allocation on the front end yeah yeah absolutely yeah and i think that you know that it's such an interesting dynamic with some of the system integrators or at least especially the larger ones i should say uh whether it's accenture deloitte or you know without naming too many names just any any bigger system integrator is on one hand they it's like they want to have control and they want you just to trust them you know trust the process trust the way we've staffed this but as we'll talk about in a future interview and i've heard you you and i have talked a lot about this is when it comes time for failure or there's a lawsuit then it turns into finger pointing so even though i i you know i wanted to control the project and bill you as much as i could and uh get you just to trust me and trust the process now that there's a problem i'm gonna point the finger back at you and say well you know it's your your fault or you you mr mrs client didn't do what you said you should have done or didn't do what it would have said in the contract so that's a pretty interesting dynamic how it kind of cuts both ways in many ways yeah well i mean it is and that's that's kind of the bread and butter of the of the integrator side you know is to give themselves the flexibility to be able to point back at you but you know in the project management have enough control to be able to you know assign the resources they want to work on it the way they want to to some extent protect their revenue stream and i mean i feel like you know beating up on them and being a little bit negative but you know again we see this not every day but certainly i mean you know it's a major component of my practice and you know you know how these guys operate and they give themselves the flexibility to be able to have it both ways and you know if you if you're going in with your eyes closed it's like a lame to the slaughter to some extent and you know you're not going to come out of that unscathed they're they're definitely going to point the finger at you they're going to have the tools in that contract process to be able to do it so yeah yeah well it's and it's always interesting to me too how how you know all the stuff you're talking about so far is so important but yet when we look at organizations and where they focus their time and effort they spend so much time and effort on trying to figure out what technology do i want and uh make sure they're finding the right fit which is that's an important step in the process but then it comes time to review the contract and you know usually it's a cio or an i.t director or cfo maybe who just kind of passes it on to legal counsel their internal legal counsel who's never reviewed an erp or software or contract in their lives potentially but they're the ones that are providing more of the the legal input but a lot of what you're talking about isn't just legal stuff it's it's more strategic you know how you're going to run the project how you're going to own it all that sort of stuff yeah and you know it goes beyond just the pure t's and c's you know what i mean and i think i think yeah be quite honest with you i think any any competent lawyer that negotiates commercial transactions is going to have an understanding of limitations of liability warranty obligations those types of things are relatively standard there's nuances without a doubt in this world that are applicable and not every commercial transactions attorneys that understand them but you know what what i think you get when you have experienced counsel that has been doing these types of deals for a very long time is you get that kind of perspective right you want somebody that understands you know how they fail because if you've got somebody that's negotiating in a vacuum from a theoretical standpoint you know that's that's not really going to serve you very well you know um you've got you've got to have somebody that can balance those types of things you know my biggest you know issue with clients and this happens a lot not only do they they you know review them without the competency to review them when they give them to us many times they say we'll take a light touch on this you know we don't really want to spend a lot of money on this um you know just focus on the big things and you know that's incredibly challenging to do and and to some extent i think is short-sighted because if you're spending millions of dollars on a software project and you know you don't have the right budget to review the contract which is the one tool that you can use to manage that project and mitigate against the failure you know i i don't i don't you're not you're not really looking at this in the right way from my perspective i think yeah you're almost treated yourself yeah and you're talking about such big risk high ticket high dollar types of issues that if you gloss over this i mean it's gonna you're gonna be paying for it both financially and risk mitigation-wise for a long time yeah and i think you know the financial aspect of it you know it's not just what's right in front of you either right i mean it's not just the money that you're out that you've paid it's it's about you know let's say you go through a failure and you've got you know a large consulting firm and you've got one of the top you know erp vendors or whatever software it is you're you're integrating and it fails and it's it's the backbone of your business you know so it's not just the fees that you're out but it's conceptually where would you have been had that software worked financially you know if this thing took you a year and a half throughout it or longer um you know think about all the resources allocation and the profit that you didn't get to realize because you're not where you thought you were going to be and you know and then it's not it's not just that so it's the money that you're out it's where you would be today and then it's the cost of what we call cover right it's replacing that software in that implementation integrator with somebody that's competent um you know so now you've got to do it all again and you know i don't know what the average implementation time is it depends on what you're implementing as opposed but you know let's just say it's a year and a half or two years for some huge project you know now you're four years away from where you were you know we and we've talked about these things before you know you've got like the little example comes to mind where it took years to implement the software it failed because some nuanced issue that they should have known about beforehand and at the end of the day they went back to their legacy pro their legacy system you know i mean where would they be today had the software done what they thought it was going to do right yeah yeah absolutely so this is a lot of good stuff to think about and and uh as our audience who may be about to sign on the dotted line for a contract or an implementation of technology you know what are the what are those two or three closing things that you would summarize you know here are the things you should be thinking about or looking for or doing as you as you continue down that path yeah i mean i think what i would emphasize is don't just focus on price okay because if you're focusing just on the cost of the software on the front end you're really doing yourself a disservice and you're missing opportunities to manage the overall cost of that system for the life cycle of that product for the life cycle of the license the subscription that you're going to have so you want to think about just not not just the money you're spending today but put in place you know caps um flexibility provisions that allow you to you know suspend portions of the license to trade out pieces of functionality that's how you need to be thinking you've got to be thinking from you know not just the initial cash outlet but a flexibility over the long term and what flexibility equates to is costing i think is really on the software side on the integration side i think it's really all about project management you know you've got to make sure certainly that you've got the reps and warranties that you need on the front end that you know these services are going to be provided in ance with generally accepted industry standards or whatever the metric is right it's always these warranties are always a warranty of reference so it's to something some sort of specification and it's a warranty of time it's a period of time how long that's warranties going to last that's all important stuff but i mean i think or important to some extent is that you're focusing on the aspects of feel where what project is likely to fail putting your fingers in the dike that anticipating it and you're mitigating the likelihood that that's gonna happen um you know that that to me just makes the most sense i think you know it's not just in the base consulting agreement but it's in the sws it's in you know collateral documents that might see project status reports how are those going to be handled what are they going to say how often they provide it prints specifications all of that stuff that's incredibly important it all ties together and if you're not thinking that way um you're going to be in for a process and it's not going to be a fun thing yeah yeah is uh as difficult as attorneys are to deal with no offense uh it's a lot easier to deal with them early on than having to deal with you someone like you later on when there's a failure or some sort of contract dispute well absolutely i mean you know there's a saying my business a cheap or early legal advice is not expensive okay it's it's legal advice that you get on the back end that's when it becomes incredibly expensive you know and once we when we talk about location and those things fail i mean maybe we'll talk about some of the pricing the the cost of litigation and how much these legal fees actually cost because once you know that you know the contract negotiation process the legal fees that you spend on that that's a bargain to be quite honest with you right yeah it's always cheaper to get it right the first time exactly well good well i appreciate all the all the feedback and the great discussion here how does our audience get a hold of you if they want to learn more about you what's your website address or uh you know what's the best way to to find you yeah absolutely i think the easiest way to find me is really you know taftlaw.com is uh my url and you can just plug my name in there marcus harris um in the attorney directory or just search marcus harris whole bunch software things are going to come up from blog posts to youtube videos to things like this so um easy to find it's just you know taf law marcus harrow software attorney those are those are the best ways and you can you can go from there check out you know some of the things i've published some of the things i've said and decide if uh you know you want us to help you out over here at taft law okay great we'll include a link to your your email address um in the in the information field below for those listening that are interested in reaching out to you so thank you very much for for joining us here today marcus we appreciate having you very appreciating being on the show today yeah absolutely it's always a pleasure thanks all right thanks la la marcus [Music]