Fwd: $105K Agreement needs review

[Jamie Clark <jamie.clark@oasis-open.org>]

For file.ÂÂ

James Bryce Clark, General Counsel, OASIS Open, setting the standard for open collaborationÂ

---------- Forwarded message ---------
From: Andrew Glass Hastings <andrew@openmobilityfoundation.org>
Date: Fri, Feb 3, 2023 at 11:34 AM
Subject: Re: $105K Agreement needs review
To: Jamie Clark <jamie.clark@oasis-open.org>
Cc: Cathie Mayo <cathie.mayo@oasis-open.org>, Scott McGrath <scott.mcgrath@oasis-open.org>

Thanks, Jamie.

I did confirm Google will be signing our standard membership application as well, and I agree that helps, especially with the clarity around CLAs in our application and by-laws.

The good thing in all of this is we donât ever handle the actual data so there is minimal risk there. That is left between the public agencies and their 3rd party tech partners. The OMF is not a named entity in any data sharing.Â

I just had a call with Ramses this morning and filled him in. He is comfortable to proceed.

I will clarify with Google the refundability issue as well as Sec 4.1 and their ability to sign an CLA under these terms.

Scott and Cathy - any other concerns?

Thanks!

-AGH

Andrew Glass Hastings

Executive Director

andrew@openmobilityfoundation.org

www.openmobilityfoundation.org

@andrewgh @openmobilityfnd

On Feb 3, 2023, at 11:16 AM, Jamie Clark <jamie.clark@oasis-open.org> wrote:

 Andrew: While my lawyer instincts aren't in love with having two contract forms, that might not be all bad in this case. It would help evidence that they :"have signed the same form as everyone else." We do get that they have leverage -- we get these requests from some of our big fish at OASIS too. And at least Google DOES repeat fundamentally all of your terms, on their own form.

 Most of the other operations stuff, you can assess. Don't promise to do something with data, or their logo, or keeping the agreement itself confidential**, etc., if you can't keep the promise. Wearing my CPO for OASIS, I have to admit that we spend some time on those issues in reviewing our own ops.

ÂÂÂÂ As I hope was clear, that leaves only two hills that personally I'd consider dying on:Â

• the fee refundability issue. I defer to Cathie and Scott on that one.
• inserting something in Sec 4.1 to make clear that their IPR clause does not invalidate any CLAs they sign within your work groups. (I think they'll get that, if you raise it.) If it would help them to talk to me, or you and me, on that technical point, feel free. Like OASIS, Google has in-house CLA ninja who should understand.

ÂÂÂ Finally, we recommend that you inoculate yourself by making sure you're square with you own board, or maybe just Ramses or the officers**, if you're going to give one member a significantly different deal than all other commercial members.

ÂÂÂ Again, my comments do not rise to the diligence or detail level of a contract review by your own counsel;Â but as an indication of what we as parent host think is prudent and sensible, I hope it helps.

 Let's make time to touch base on other matters of mutual interest sometime this quarter. Best of luck.

Cordially Jamie

** One of OMF's special challenges is that, with a board full of public officials often subject to sunshine laws, you may not be *able* to post confidential stuff to your own board with a high expectation of it remaining private. Thus my suggestion that maybe you just pick up the phone and call.

James Bryce Clark, General Counsel, OASIS Open, setting the standard for open collaborationÂ

On Fri, Feb 3, 2023 at 6:21 AM Andrew Glass Hastings <andrew@openmobilityfoundation.org> wrote:

This is super helpful, Jamie!
Thank you for the quick review.
I agree, would be preferable not to have an agreement with Google different than other members but it appears that this is the mechanism Google needs to join.
I was told Google will also sign our standard membership application. But that would put the agreements at odds at least in terms of the payment refund terms. I will look into this.

Much appreciated.
-AGH

- Andrew Glass Hastings

*Sent in transit

On Feb 3, 2023, at 1:01 AM, Jamie Clark <jamie.clark@oasis-open.org> wrote:

ï

Dear Andrew and Cathie:

Here are my next-day-turnaround comments on Google's proposed alterations to your membership form. I mention the timing, because although I understand from Scott that this is urgent, here's a lot in there, including some outboard Google terms imported from other posted policies. So I have given this the quick type of review. If you want to go in depth into their detailed data protection issues, for example, we may need to talk further. But I think I can identify for you here the main legal issues, business issues, and client-handling issues in their request.

As you know, OMF has a posted standard form for membership agreements for commercial entities; Lilly O'Brien and I wrote it up back in 2019.  So far as I know, all of your other members have simply agreed to your form. Google's edits should be viewed in light of

• whether they're preserved the terms you really need (mostly, yes),
• whether their added terms cause operations problems or new risks for you (most do not, but a few may, as mentioned below), and
• whether giving them different terms than all other members will create business problems for you. (Discussed below.)

KEY O.M.F. STANDARD TERMS. Your form asks the non-governmental number to agree to a few main things in five bullet points, including:Â

1. They're joining as a dues-paying member, and agree to pay the dues. (Satisfied.)

2. They confirm their contact information to you. (Satisfied.)

3. They understand that the OMF bylaws and your licensing rules will apply to them, when they're participating within your group. (Satisfied.)

The standard OMF form bullet points all are carried forward into the summary on the Google form's first two pages. So nothing is missing, except that their promise to pay dues is somewhat undermined by their new termination provisions, as discussed below.

ADDED GOOGLE TERMS AND CONTRACT UNIFORMITY: They have added a bunch of their own terms as well. They are listed below, and most are not legally problematic. But OMF will need to make business value judgments about:

• whether each of those terms is acceptable to you, especially if it puts more burdens on OMF;Â and
• whether granting a bunch of variations to benefit this one company, when you have not done so for other major members, is acceptable to you, and can be managed in the contexts of your other and future members.

 Can you legally accept a different form? Yes, if it covers your key needs. All the Bylaws say is that the member must "submit...a written application with a short description of their status, size, areas of interest and contact parties, and agreeing to be bound by these Bylaws, on a form or document specified by the Executive Director." So that gives the ED some discretion.

 But, by customizing each one, will you open yourself up to other demands from other members and prospects? Probably, yes. That's why (speaking for OASIS, and our own similar membership intake process) we try very hard not to grant variances. We found that our members generally expect that they'll be bound to the same rules and have the same rights as each other.ÂÂ

 We can offer some general advice on this, even though we do not act directly as your lawyers (we have not given an outside-counsel level of comprehensive review to today's draft). There are very few purely legal issues here: it's ultimately mostly a matter of your management decisions about your foundation's risks and member politics. There are a very small number of things we think you should change or ask about, noted below. But for the most part, your decision to give one of your members more rights than the others is a matter for your business judgment. (Whatever you choose to do here -- and again as our opinion, not a directive -- we suggest you talk through it with your Board officers, so that they're aware and you have their backing for your decisions.)

SPECIFIC PROPOSED NEW GOOGLE TERMS:ÂÂ

Although you'll have to evaluate these yourselves, in terms of risk and operations burden:

• The new term in Sec. 1.3 is not an uncommon ask for bigtech firms, and you may not find it a problem.)
• I assume you and our Cathie Mayo both have reviewed the fee payment amounts and timing listed on the first two pages, and confirmed they're acceptable .
• Most of Sec. 4 is also unremarkable -- but section 4.1 seems to undermine open source contributions made under a CLA. I suggest you specifically ask them to add this sentence at the end. "However, Google may commit itself to open source licensing terms for its own code or similar contributions to the Organization, by executing a CLA as provided by the Organization's procedures."
• Sec. 5.2 provides for a refund of your fees, if they terminate early for one of the reasons listed there. This is a potential problem. I believe that both OASIS' accounting policies and OMF's do not provide partial fee refunds for partial years; annual dues are booked on a nonrefundable basis. Please confer with Cathie on this -- and again, I don't think you have given this right to any other member. So you may need to go back to Google on that, and explain that these are annual membership fees, and not fees for services.Â
• Most of the privacy provisions in section 6 are unremarkable -- most amount to "don't commit GDPR violations with personal data and get Google in trouble too." However, you are being asked to agree to a number of specific data handling practices, as well as the controller provisions at https://business.safety.google/controllerterms/. They do not seem infeasible to me, at first read, but you will need to confirm that you can safely agree to their requirements. (Back when I knew more about OMF's operations, OMF did not handle a lot of personal data, so the risks and operational burdens there may not be large ones.)
• Added Sections 7.2 and 7.3 are new but unremarkable for a bigtech contract.
• Added Section 7.4 is new, but harmless to you assuming that OMF does not run 'contests'. Because that kind of activity is subject to its own set of regulations, we'd expect OMF to consult with OASIS before launching such a program anyway.
  
• Section 8 is new, and gives Google an unlimited unilateral indemnity for certain risks, and an unusual amount of control in the unlikely event of some kind of lawsuit. OASIS generally would decline such a term, if one of our members asked for that. While you might assess the risk of one of those indemnity trigger events (like IPR infringement or bankruptcy) being low, you still would have the challenges that:
• It's an agreement to take on unlimited liability, in certain cases, which could be tough on the contingent balance sheet of a small nonprofit;Â and
• I do not believe OMF have granted that kind of protection to its other members.Â

You will need to make a business decision about whether to grant the exception, or whether you can safely do so without doing so for all your other similarly situated members. Cathie may be able to confirm whether further disclosure is needed -- or if such an indemnity adds a new class of contingent liability to your balance sheet.

• Please note that you also would need to comply with several of the proposed terms regarding matters such as logo uses and public statements. OASIS has occasionally been asked by bigtech firms to do so, and has found similar requests feasible, as long as we're careful and keep our staff informed.
  
• Section 11.13 puts the venue and governing law for any dispute in the Bay Area. That's also an accommodation you have not generally provided to other member applicants. Agreeing to that could increase your cost of resolving any dispute, in the perhaps unlikely event that one occurs.
  

Feel free to call or write with any questions. In any case, I think you will need to review the operations commitments that Google is asking for, and review with Cathie the few accounting/collection issues noted above, before replying to Google.

regards Jamie

James Bryce Clark, General Counsel, OASIS Open, setting the standard for open collaborationÂ

Scott McGrath <scott.mcgrath@oasis-open.org> wrote:

This is urgent * * * Please review the attached OMF sponsor Agreement - AS REVISED by Google. As you know, OMF has been chasing them for a long time and needs this revenue.

For your ease ofÂcomparison, I've also attached an unrevised version of the current agreement.

Please respond at your earliest availability - $105k is waiting.

Scott...

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