June 24, 2019The recent case of a federal judge ordering Martin Shkreli to forfeit $7.36 million serves as an example of one of the unique situations when a “corporate veil” is “pierced'.
July 14, 2017Clausehound is an active contributor to the Multiplicity Media Small Business Community, and Rajah Lehal, Founder of Clausehound is Co-Founder of Multiplicity.
June 01, 2017An Ontario Superior Court decision determined that a dispute resolution provision was not ousted by the 'Notwithstanding anything to the contrary in this Contract' language in a termination provision. See instant case of Bombardier Transportation Canada Inc. v Metrolinx 2017 ONSC 2372 (CanLII).
June 01, 2017A Forum Selection Clause in a Commercial Contract Should be Given Effect Unless Party can Show Strong Cause that the Case is Exceptional. See instant case of Expedition Helicopters Inc. v. Honeywell Inc. 2010 ONCA 351.
June 01, 2017Contractual Liability for Breach of Data Security not Covered by Insurance Policy. See instance case of Aldo Group Inc. c. Chubb Insurance Company of Canada 2013 QCCS 2006 (CanLII).
April 02, 2017Leasing requires more than just a good eye for location. Your professional duties require you to provide competent services. This means you must understand the legal implications of standard terms and how these terms can make or break your client’s business.
February 06, 2017It is helpful to design formal testing criteria for both the vendor and customer during negotiations of the MSA. This allows the vendor to know what to test for before sending it in for acceptance. This also saves time on behalf of the customer.
January 12, 2017The vendor (consultant, developer, etc.) in an MSA will want the customer to agree on certain obligations and responsibilities during the course of the agreement. This is important since it ensures that a vendor will not fail to meet deadlines due to customers not replying or providing the necessary information.
January 10, 2017You had a brilliant idea, set up your company, and now it’s finally time to make your dreams a reality and bring your product to life! When hiring a developer to help build your software or mobile application, it is important to take the time to agree on several points.
December 23, 2016Breakfast is the most important meal of the day, but you’ve probably never heard of your morning bowl of cereal 'serving up bigotry at your breakfast table'.
December 05, 2016An MSA allows for the two parties to quickly renegotiate future transactions or agreements since they can rely on the terms of the existing master agreement.
November 25, 2016Toronto’s Yorkdale Shopping Centre (“Yorkdale”) has forever changed the way we visualize Santa Claus. The latter and Paul Mason are fighting over the ‘Fashion Santa’ brand that both parties took part in making a success.
November 08, 2016Once the engagement commences, invoicing made by the vendor in a Master Services Agreement (MSA) is particularly important as it can be a form of control by the customer. If the MSA includes milestones for which invoices are submitted, the customer may require that the contractor can only provide invoices for approved or accepted work products.
October 03, 2016Links from this article:hereSUCCESS FEES AND DISCOUNTS Fees discounts and/or success fees may be applied and this can either be formalized or discretionary. Other forms of compensation levers in an MSA are rate card, fees for onboarding replacement staff, and research tax credits.
September 26, 2016In AIM Health Group Inc. v 40 Finchgate Limited Partnership (2012) ONCA 795, the landlord ('Finchgate'), entered into a 5 year lease agreement with the tenant ('AIM').
September 09, 2016When entering into an important contract, take the time to discuss with your business partners, advisors and legal counsel, to make sure that you are clear about your opportunities and risks. In this article, we describe four simple steps to follow to make sure that your interests are protected when negotiating an agreement.
September 05, 2016Compensation in cash (or freely available funds, which could also mean payment by cheque, bank draft, wire transfer, email money transfer and so on) is the most common form of compensation. Compensation may also be non-monetary in the form of share options offered by the customer.
August 22, 2016Donald Trump posted this tweet at 5:11 A.M. and mystified the internet. In flowed the jokes and memes, but the underlying political commentary is perhaps the best of all. If you think about it, Brexit is a lot like Donald Trump—loud, fearful, anti-immigration, and perhaps more bark than bite. That last one might be a new one to think about, at least in the case of Brexit.
August 01, 2016In a previous post, we discussed how payment in a software development agreement as a Master Services Agreement (MSA) may be separated into phases and various clauses that can protect either party. Now we will discuss the forms of payment that are generally used.
July 27, 2016In an interesting case for parties seeking to impose a geographic boundary on competitive operations, an Ontario Court has held that a franchisor was not entitled to enforce a restrictive covenant because it did not have a legitimate interest to protect within the geographic area prescribed in the covenant.
July 20, 2016Congratulations - you’re the proud owner of a business! One of the most important steps you will take in operating that business will be to lease out a space from which to sell your goods and/or services. This commercial lease will have a number of standard clauses, including a description of the leased premises, the rental payments, the term of the lease, possible term renewal options, and, in all likelihood, an overholding clause.
July 04, 2016Now that you have decided to work together, whether you are the client or the software developer, how are you going to decide the timing of payments for work performed under a Software Development Agreement/Master Services Agreement (MSA)? In order to properly protect yourself, there are a few considerations you should make regarding payment.
June 14, 2016This article discusses the case nClosures Inc. v. Block and Co. and the risks of not signing a confidentiality agreement before entering into negotiations.
June 06, 2016As any business, if you do not have the skills necessary to create software that your company needs, you can look towards independent contractors. When entering into a Software Development Agreement and creating the Master Services Agreement (MSA), it is necessary to define the scope of the work that you want performed.
May 27, 2016Who ever thought we would live to see robots being hired as lawyers! The time has come, and one robot in particular has arrived to fulfill your legal needs. ‘His’ name is Ross. Not Ross Geller. Just Ross.
May 27, 2016We all hear about the big commercial deal where millions or even billions exchanged hands. But what we don’t hear about is an unusual document that can make or break that deal.
May 17, 2016Lawyers are great assets for any real estate agent or realty team. They’ll help you craft a legally acceptable arrangement, but they have their limits.
May 16, 2016It felt like I had a gun to my head. Either lease up one of the most unpopular rundown buildings in Alberta or go bust. We made a classic real estate “newbie” mistake.
May 13, 2016The most hated of lease clauses – the insurance clause – is not only frequently ignored, but is also poorly understood by almost everyone in the real estate industry. And that includes real estate lawyers. Yet, it can be the most dangerous.
May 13, 2016You’re a professional. You’ve been trained to understand what your client needs. And you know how to find the best real estate. You and your client are excited, you sign the offers and then close the deal.
May 12, 2016When I think of the cloud, I think of a marshmallow-like floating bubble of air. When someone mentions the ‘cloud’ today, more often than not, they’re talking about a completely different cloud!
May 11, 2016This article discusses the first steps to take in protecting your mobile apps from reserse engineering pirates and other forms of tampering.
May 10, 2016Every system of government must balance individual privacy and rights, against state control. Where the lines are drawn determines what type of society we live in.
April 29, 2016Most readers understand that the Panama Papers exposes problematic tax havens and the users of such havens. However, the Panama Papers also expose a complex set of issues rolled into one big overwhelming story.
April 22, 2016Most loyal Central Perk-loving ‘Friends’ addicts know the small details of each of their favorite Friends characters. It took, however, over 10 years and Google to finally solve the mystery that Chandler Bing is an IT Procurement Manager - the guy in your company who plays a fundamental role in the negotiations of your technology services agreements.
April 22, 2016You are an entrepreneur with a brilliant idea for the next technological ‘sensation’. Understandably you're concerned about protecting your IP, you will likely focus on those parts of the MSA. This is good and important, but the chances are that while protecting your IP, you could be overlooking an equally essential clause.
April 01, 2016Tenants to a commercial lease should consider drafting a 'rent catch-up' clause, in the event that additional rent owed increases by a drastic amount.
March 24, 2016In the world of fashion, the label changes everything. In the world of legal (drafting) fashion however, lawyers, being human, will of course look at the headings, and must resist being influenced by them.
March 23, 2016Greed isn’t good. Because greed is never satisfied. Greed creates an endless void that motivates poor decisions, causes the destruction of critical partnerships and inflames one’s sense of inadequacy. But, Envy. That’s different. Envy is good. And now there’s science to prove it.
March 14, 2016We see what we expect to see, and the fashion industry has been making $ billions exploiting this principle. In the world of fashion, the label changes everything. In the world of legal (drafting) fashion however, lawyers, being human, will of course look at the headings, and must resist being influenced by them.
March 02, 2016 A lease may have an option to purchase clause. For example, a lease may have a minimum rent provision along with a payment to be held in escrow for the purchase of the property. The escrow payment is not minimum rent.
March 01, 2016Before entering into a lease agreement, the tenant should negotiate the option to remove trade fixtures and leave the premises as the tenant had entered it.
February 14, 2016The hugely successful corporation, Google, was a spin off from research done for a PhD thesis at Stanford. But if your business is considering working with IP that originates from a university, there are many questions to ask.
February 07, 2016Mining corporations have been especially vulnerable to the recent economic upheavals in the Chinese economy, however mining corporations should think twice beofre neglecting to protect their IP.
February 02, 2016Depending on the circumstances of the parties involved in a commercial lease agreement, the name of the tenant on the lease can vary where a wholly foreign owned enterprise is leasing the property.
February 01, 2016This article discusses what is needed for a non-competition clause to be enforceable, specifically if 5 years is too long for a non-compete to be enforceable.
January 26, 2016Are you starting a business related to law, accounting or medicine? These high risk fields often operate as a 'Limited Liability Partnership' (LLP).
January 23, 2016This article discusses considerations including the use granted, territory, term, exclusivity, revocability, sub-licensing, termination, exclusivity and non-exclusivity, among others.
January 15, 2016What happens when leased equipment is installed in a rental property, and the tenant fails to pay the rent? The answer can depend on whether the equipment has become a ‘fixture’.
January 07, 2016Businesses today have become increasingly reliant on software as a service (SAAS) provided by other corporations. What happens if the SAAS contract is suddenly terminated or not renewed?
January 07, 2016Entrepreneurs and investors are rightly concerned about what rights attach to their shares, and what mechanisms are in place to protect those rights - these concerns are highlighted in a recent Ontario court decision.
January 05, 2016Many websites use numerous brand names to compare pricing of each company’s products. Issues may arise when such ‘price-comparison’ websites are using other companies’ trademark names or designs. How is a trademark protected?
January 02, 2016Parties renewing a lease should ensure that the renewal terms are not contravening any laws within the jurisdiction where the agreement is being applied.
December 23, 2015Every season has its own charm. In North America, December brings...shopping! But January brings...bills. Credit cards and ‘buy-now-pay-later’ plans have made it ever-so-easy to spend more than we earn, so interest rates can have a huge impact on consumer finances.
December 22, 2015Do you ever get annoying emails from companies you’ve never heard of? Or continuous emails from a company you once agreed to receive an email from years ago?
December 21, 2015Everyone loves a good deal! But how do we know if the deal is really a deal? Many of us rely on the integrity of the retailer, and trust that the advertised discount is actually a discount.
December 11, 2015Are you trying to use the web to reach out to as many people as you can to build your business? - Not so fast! Canada’s new anti-spam legislation (“CASL”), which came into force July 1, 2014, creates restraints on your ability to do this if you are sending commercial electronic messages (“CEM”).
December 11, 2015Trademarks are the name, design, brand or logo that represent the products and services a company offers, they can be the major reason why consumers purchase the product or service.
December 03, 2015The other day I was at the library with my 10-year old son. I bumped into a bookshelf next to the children’s section and a book fell to the floor. I picked it up and was surprised to note that the book was an introduction to the topic of powers of attorney, written for the general public. As I glanced through it a title caught my eye: 'If powers of attorney are important, why do so few people have them?' Why indeed?
December 03, 2015In order to prevent the growing threat of debit and credit card fraud, in 2006, major credit card payment brands such as Visa and Mastercard collaboratively created the Payment Card Industry Council.
December 01, 2015Record high numbers of people are quitting their jobs to start their own businesses. This rise in entrepreneurial pursuits is creating an opportunity for tenant-only commercial real estate leasing agents.
November 15, 2015Some companies may open up their API to third party developers without an API license agreement ('going naked'), however this can cause problems and lead companies to later need to create a license and restrict what developers are doing.
November 14, 2015When drafting an API licensing agreement, it may be prudent to consider that the less one-sided the restrictions are, the more the API will attract innovation by open source developers.
October 27, 2015What is Docstoc? The go-to business to for business related documents and cloud file sharing, Docstoc, is closing down on December 1st, 2015. Docstoc operated with the target market of small or start...
October 16, 2015The most hated of lease clauses - the Insurance Clause - is not only frequently ignored, but also poorly understood by almost everyone in the real estate industry. And that includes real estate lawyers. Yet, it can be the most dangerous.
October 14, 2015If a spouse operates or owns a family business, one strategy to protect that business would be to enter into a marriage contract that contains a waiver by the non-owner spouse of the owner spouse’s interest in the business.
October 11, 2015Since Twitter will no longer be selling its firehose data (full, unfiltered stream of tweets available from the service) to third party sellers, but will license the data to users of its API, it is important to be a licensee/subscriber to Twitter's API set in order to access the huge amounts of real time-data that Twitter has to offer as a social media giant.
October 10, 2015Controlling the license of the brand is important for both the licensor and the licensee. An API license allows a licensor to increase its brand recognition.
October 08, 2015If a social media site wants to attract attention or encourage community participation, it may consider giving API licences to third parties. This way, passionate members can transform their ideas into reality and benefit the application.
October 06, 2015Compliance with the privacy policy of the API licensor is an important term and condition of using the API. If the licensor is bound by privacy rules and is not allowed to retain private data, then the licensee should be prohibited from retaining data as well.
October 04, 2015The article discusses the high profile case of McCain v. McCain (currently on appeal to the ONCA). After 15 years of marriage, the spouses entered into a marriage contract under which the wife waived her equalization and support rights..
October 04, 2015In Ontario, there is a default statutory regime that governs matrimonial property. However, if a couple preparing to wed or an already married couple wishes to avoid the default statutory regime, the couple may opt out of the regime by signing a marriage contract in which the couple shapes its own rights regarding property division.
October 02, 2015A marriage contract can save grief and tension between two splitting parties. By outlining the terms, prior to the dissolution of the relationship, and before the relationship/marriage begins, both parties will be very aware of the division of assets should the marriage fail.
October 01, 2015An open source API will allow developers to attach services to the software platform that they are using. This can help even on platforms that emphasize security and confidentiality.
September 29, 2015The idea of creating a prenuptial marriage contract may sound unromantic but it is an idea that is quickly becoming quite common. The article draws an analogy between a seat belt and a marriage contract - you put one in place and hope you will never need it, but if you do, you're glad it is there.
September 24, 2015A recent UK High Court decision, (Polypearl Ltd v E.On Energy Solutions Ltd), emphasized the importance of business common sense in interpreting a limitation of liability clause.
September 22, 2015People who marry later in life and have accumulated assets (or debts) or are entering second marriages and have experienced the process of an acrimonious division of assets, are among those who may benefit most from a marriage contract. The question often posed is, 'Will this contract actually protect my assets or income?'
September 22, 2015Purchasers and their financers will require satisfactory inspection reports as a condition for closing the transaction. An asset purchase agreement should include clear procedures for inspection, and clear standards for determining whether the inspected assets comply with the terms of the agreement.
September 22, 2015This article is about a lawsuit alleging fraud by the supplier, who controlled the distributor, in the form of exorbitant distribution fees.
September 21, 2015Parties may enter into marriage contracts to address issues they could face during their marriage and that may arise upon the breakdown of marriage.
September 19, 2015A good settlement agreement should clearly defines the effect the agreement will have on future and current claims, and whether it applies to all claims between the parties, or only those claims arising out of a particular agreement or set of circumstances.
September 17, 2015Parties usually enter into marriage contracts to protect their property and finances in case of a breakdown of marriage. Thus, many marriage contracts deal with property division and support.
September 12, 2015Lawyers who accept independent legal advice (ILA) mandates with respect to domestic contracts should not assume this task lightly and should take the time to analyze all the terms of the proposed marriage contract and ensure that the client fully understands their consequences.
September 11, 2015Hollywood and Oscar nominated star Terrence Howard cried in court about his wife's threats to release his private medical information. During acrimonious divorce proceedings, Howard was contacted by his wife and allegedly forced to sign a divorce settlement agreement under duress.
September 07, 2015Some may think entering into marriage contracts is a recent trend. However archeological evidence shows the contrary: marriage contracts have been around for quite some time - since ancient Egyptian times!
September 07, 2015 Links from this article:Read the article here.Websites and internet service providers should consider inserting as many positive steps as poss...
September 05, 2015This article is about a company who used an automated system to extract flight information from Ryanair's website, and then charged consumers for booking through its site.
September 03, 2015Many farm owners have a personal, emotional, and familial attachment to their farm. For this reason, it is especially important for farm owners to consider protecting their farm upon marital breakdown.
September 02, 2015Under subsection 56(4) of the Ontario Family Law Act (FLA), a court may set aside a marriage contract if it finds that there was a failure to disclose significant assets and liabilities at the time a marriage contract was made.
August 29, 2015I’ve had the opportunity to meet with numerous agents and lawyers who specialize in commercial leasing and they’ve all say the same thing: it’s a tedious, difficult and boring job to read a full lease, but it’s necessary.
August 29, 2015Netflix has decided to clamp down on those who use a VPN. A VPN is a virtual private network that many people use to avoid geographic restrictions for the content Netflix provides.
August 28, 2015Photographers normally own the copyright to their photos, unless they are hired to take the photo, in which case, unless the agreement specifies otherwise, the person who hired them owns the copyright.
August 27, 2015This article provides a good explanation on the definition of representations and warranties at the end of the first section, and their use in protecting an asset or share purchaser.
August 27, 2015When drafting a distribution agreement, the parties should ensure that each party has the right to terminate the agreement under certain circumstances.
August 25, 2015Both vendors and purchasers have a strong interest in ensuring that the ownership of all liabilities has been clearly allocated by the APA. When drafting an asset purchase agreement, the buyer will likely negotiate for narrow assumed liability and broad excluded liability.
August 22, 2015Website Terms of Use for application program interfaces ('API's') for programs that are designed to work with that website often contain a representation that the developer owns the IP connected with that API, and that the software does not infringe on the IP rights of third parties.
August 20, 2015Distributing an app in the Google or Apple app stores? It would be wise to carefully review distribution agreements that come along with these two stores.
August 20, 2015Some jurisdictions, including California, permit only post-acquisition non-competes, in order to protect a purchaser’s interest in capitalizing on acquired goodwill for a limited period.
August 12, 2015Every business is concerned about others infringing their intellectual property rights, though businesses need to be concerned about the possibility that they may be infringing the intellectual property rights of others.
August 11, 2015Independent legal advice is important when entering into a consulting agreement, and equally important when determining whether the agreement can be terminated. This is illustrated in a case dated 2008 when Ceylon Electricity Board (CEB) awarded a consulting contract for its proposed head office, following government procedure.
August 10, 2015The APA should contain clear provisions allocating responsibility for taxes. Parties should also be familiar with the tax laws applicable to their transaction, particularly if it could be argued that the transaction had no practical economic effects other than the creation of income tax losses.
August 09, 2015Restrictive covenants must be drafted carefully to give adequate protection to the purchaser, and purchasers should be able to show the connection between the price paid for the goodwill of the business, and the temporal and geographic aspects of the non-compete provision.
July 26, 2015Links from this article:Read the article here.Are you a consultant with a full time client and a related sideline where you enjoy trying ou...
July 24, 2015Under US patent law, a FRAND technology (fair, reasonable, and nondiscriminatory patent licensing) is standard and essential to the ongoing operation of a particular product
July 22, 2015Where a commercial lease agreement so provides clearly and unambiguously, a guarantor can continue to be a guarantor upon the renewal of the lease.
July 20, 2015It is important for parties to understand their rights and obligations in standard commercial leases. Strictly speaking, tenants cannot expect to enforce any guarantee not contained in the lease.
July 16, 2015In days gone by, an act of God, strikes, horrible weather and the like could result in disruption of business to such an extent that a company would call upon a 'force majeure' clause to halt their requirement to perform their contractual duties.
July 15, 2015This article discusses a recent appellate decision which confirmed a lower court's decision to reject Google's arguments and claims to the API source code which it 'borrowed' from Oracle.
July 07, 2015This article discusses the American case of MacKinnon v. IMVU, Inc., which challenged a website operator's unilateral amendment of the website terms of use.
July 06, 2015This article discusses the UFADAA, a model US statute that aims to make online websites require confirmation by the account holder that they agree to limit their digital assets in accordance with the user agreement.
June 30, 2015This article recommends a number of provisions for website owners and internet service providers to consider when drafting their terms and conditions.
June 28, 2015Although parties are generally free to negotiate their sale price, in the case of a sale by a bankrupt, the price must reflect the market value of the assets in order to be able to withstand an objection by a Trustee in Bankruptcy.
June 25, 2015When drafting an indemnity clause in an asset purchase agreement, parties may wish to limit the time period in which the indemnity clause is to be effective.
June 20, 2015The developer of the app 'Prized' was caught using its users' smartphones and other electronic devices to mine for cryptocurrency, which was damaging for the hardware, with the potential to leave it barely functional.
June 13, 2015This article discusses the copyright issues associated with the use of the popular social networking site Pinterest. Pinterest encourages users not to pin their own items and cautions against self-promotion, but their terms of service contain representations and warranties about the ownership of all IP posted on Pinterest and non-infringement of third party IP.
June 12, 2015Parties to an asset purchase agreement may avoid unpleasant surprises with respect to title transfer issues if every asset, or category of assets is carefully itemized in a schedule to the agreement.
June 12, 2015This article points out that when parties enter a distribution agreement, it is prudent to take extra precautions to protect intellectual property.
June 05, 2015Drafters of commercial lease agreements should beware when drafting the minimum rent clause. An option to renew an agreement can oblige the landlord to offer to renew for the original (lower) rent, although the rental market may have increased.
May 31, 2015Joint ventures (JV) have lower capital costs than 100% acquisitions, which makes them increasingly popular during times of economic uncertainty, however JV partners are likely to be actual or potential competitors.
December 15, 2014To do business outside of the jurisdiction that a corporation is registered in, your corporation may need to apply for a licence for your corporation to be formed in that jurisdiction.
November 10, 2014This month Home Depot announced that it was hacked and that 56 million credit card accounts were compromised, and that around 53 million customer email addresses were stolen as well. This articles discusses how hackers could have breached security and a suggested security protocol that a company and its data security team should consider.
February 24, 2014Once your company has started to gain some 'traction' (subscribers, customers) you will turn a corner where it has its own brand and identity. At that point in time you will likely want to protect that identity with a trade-mark.
September 30, 2013In this article, we describe four (4) simple steps to follow to make sure that your interests are protected when drafting a term sheet.
June 13, 2013Although the language appears the same every time you read these clauses, subtle differences can and will make a difference in interpreting your commercial agreement or acquisition transaction documents.