Let’s face it; most of us don’t read the fine print. And sometimes, that can have consequences. These consequences can range from the seemingly harmless (a nosy neighbor or coworker being suggested as a new Facebook friend or Instagram follow to you after entering their contact information in your phone – since, after all, Instagram and Facebook both state in their fine print that they will access your contacts and use that information to suggest follows and friends) to the truly disastrous (signing away important privacy provisions that could get you or your organization in trouble).
The stakes are high for the click-through contracts vendors such as Microsoft, Adobe, Oracle are frequently presenting to clients. But given the informal feel – scroll through and click – it can feel inconsequential. “It’s easy to be lulled into complacency,” warns Arthur Beeman, attorney at Beeman & Muchmore, LLP, a law firm based in San Francisco that partners with LicenseFortress.
And the truth is that click-through contracts are anything but inconsequential, as many companies learned during the pandemic. With so many employees working remotely, many who had never previously added remote access to their phones, tablets, or personal computers did. Realizing this, some vendors changed the wording of their contracts to ask that licenses be counted by devices, not users, leaving the organizations served by these vendors in for a nasty surprise. It was in the fine print – but who reads the fine print?
Understanding Your Agreement
Your agreement with Oracle (or any other vendor) is predicated on an overarching master agreement. This agreement can last 20 years or longer. Pursuant to that, you would have ordering documents that apply to the products you use. On a lower tier, there are technical service agreements, which you typically renew annually.
This is where Oracle and third-party vendors will likely try to snag you. According to Joel Muchmore, also an attorney at Beeman & Muchmore, LLP, it’s not unheard of for vendors to send along a link with these to a completely new master agreement that is typically in a completely click-through form. Additionally, these are frequently “intentionally Byzantine,” says Muchmore — and are not designed to be a fun read.
“We have absolutely had clients that have wandered into new master agreements and had no idea that they had done so,” says Muchmore. “Bam, they’re being controlled by a new document for the first time in 20 years.”
These most frequently appear when either ordering new products or renewing technical support agreements. Less reputable vendors may insert provisions that would require your organization to run scrips that you might find intrusive – and legally, if you signed off on it using a click-through contract, a court of law would likely find in the vendor’s favor.
Know What to Expect
Luckily, contracts from reputable vendors (which, unfortunately, isn’t all of them) usually don’t just randomly appear like in the case of cookies – they won’t pop up on your screen and demand you fill them out before going about your business. Instead, they’ll be sent over by your Oracle or Microsoft rep under the guise of reviewing your contract.
Recognize the gravity of the situation. Both because it’s a click-through contract (which many people tend to take less seriously) and due to the longstanding nature of the relationship your organization has with these vendors, it can be easy to forget that the ERP systems involved are worth millions of dollars. But they are – don’t forget that and fail to recognize the gravity of the situation.
Respond smartly. Read the contract and assert yourself. “Hey, don’t like this provision,” suggests Muchmore for a response. “Can’t we keep the old contract?” Let your rep know that you see the difference and don’t accept it.
Get a lawyer (like Beeman & Muchmore) or consultant (such as LicenseFortress) to help guide you. The language in the contract will intentionally be confusing – it’s a good idea to pull in someone with lots of experience to review it with you.
Let’s say you had a big day and signed a click-through contract on autopilot. Oooops. If it’s the same day or soon after, reach out to your Oracle rep and let them know that you made a mistake. “I bet you could, with a bit of adamance, pull something back in 24-to-36 hours,” says Muchmore. But don’t dally – after a week, it’ll be very hard if not impossible to backtrack, so act quickly!
In general, use caution when reviewing any contract, click-through or otherwise. And remember — these contracts are complex and intentionally confusing, so it never hurts to have a competent and experienced consultant like LicenseFortress on your side. Given the value of these transactions, taking extra time and putting extra resources into verifying that the contract is still the contract your team negotiated previously is worth it.