22. July 2014 · Comments Off on Six Key Terms When Partnering With the Empire · Categories: Early Stage Companies, Partnerships

If you run an early stage tech or Internet company, you might relate to Lando Calrissian. Lando was running his small cloud-based business when the Empire (insert your favorite $100B plus market cap player) showed up and made him an offer he couldn’t refuse. Reluctantly Lando agreed to their terms, but the deal just kept getting worse and worse.

Lando

Don’t give into your anger – after all, if you strike down negotiations, you will never sell more than you can possibly imagine!

Although you will not be able to dictate terms to a much larger prospective channel partner, being aware of six key items will limit your risk and enhance your upside:

1) Non-Compete vs. Non-Disclosure – As a preamble to entering into negotiations, you will be asked to sign a non-disclosure agreement (NDA). It is tempting to sign this quickly and proceed to doing a demo and negotiating a deal, but make sure you review the document for non-compete language. Non-compete terms can be overly restrictive and are generally not applicable to a channel partnership. Non-compete terms may not ultimately be enforceable, but save yourself potential headaches and only agree to non-disclosure.

2) Indemnities and Warranties – If your new partnership goes well, indemnities and warranties may never come into play, but; a contract is there every bit as much to protect against downside as it is to enable upside. When you enter into negotiations with a much larger prospective partner, they will almost certainly provide you with their standard boilerplate contract. Every time I have received such a contract, the indemnities and warranties were written largely to the benefit of the partner who did the drafting. You will have a high success rate if you inform the channel partner that you require indemnities and warranties to be mutual as it is generally difficult to justify doing otherwise.

3) Understand how long it will take to get paid – You would be surprised how many early stage partners I’ve heard express surprise (and dismay) at how long it takes to get payment from their channel partner. Assuming your deal is structured as a royalty split between the two parties, most enterprises will want to report royalties to you on a quarterly basis. Once reported, you may have to issue a purchase order to your channel partner and their standard payment terms could add another 30 to 90 days before you receive payment. Understand how this impacts your cash flow and make sure you can absorb delays.

4) Know the Channel Partner’s EULA – An end user license agreement (EULA) is the contract under which your channel partner will sell your product to their customers. Early in the negotiations, request a copy of the EULA as well as any referenced handbooks or documents. You will not likely be able to affect any changes to these documents during the course of negotiations, but it is critical that you can work with the terms and conditions contained within them. Pay particular attention to support obligations as most big tech companies will want to provide their customers with 24/7 support.

5) Term and Termination – Your early stage company will never be in a weaker position than when you negotiate the initial channel partner deal. The term of an agreement and termination clauses contained within it don’t necessarily dictate when the partnership will end, they also provide opportunities for business terms to be re-negotiated. Make best efforts to align the initial term of the agreement to a planned milestone in your product roadmap – if you have a significant upgrade or new product release timed around termination, you will be better positioned to negotiate new revenue opportunities (and maybe even a better royalty split).

6) R&D Tax Credits – Most governments offer tax credits for eligible R&D work done within their jurisdiction..These credits can be very meaningful for early stage tech or Internet companies and predicated upon conditions such as ownership of the intellectual property or having an exclusive license. If you are licensing technology to your channel partner, make sure you understand the impact that license will have on tax credit eligibility.

Of course, the best advice I can offer you is to engage legal counsel when negotiating any contract, but if you give consideration to the six items above, you will be off to a good start to getting a deal you can grow your company with.

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