Chicago Software Licensing Lawyer & Attorney : Sam Conforti Law Firm : Master Service Agreements, Negotiations, Outsourcing : Cook County, Illinois

 

Yes, the rumors are true.  I have left the world of “cool” and entered the world of “White Papers”.  It really isn’t that bad.  In fact in my research I have found a very interesting White Paper by Cindy Jutras, Vice President and Service Director, Manufacturing Research, for the Aberdeen Group, Inc.  Jutras’ paper is entitled Best Practices in Extending ERP: A Buyer’s Guide to ERP versus Best Of Breed Decisions.  Admittedly her report was published in November 2006, but it is a factual view of where the ERP industry was at that point in time and a prescient summary of where it was about to go.  It is a must read for those involved in the ERP industry and I highly recommend it to my readers.

 

The gist of the report is the emerging approach of today’s Enterprise’s desire to derive more for their dollar from their ERP implementation and deciding whether to stay with the core functionality of the ERP solution or augment this functionality with “pure play” or “Best of Breed” software vendors.  This decision is becoming more complicated due to the acquisitions of these smaller Best of Breed vendors by the larger ERP giants.  This 2006 report foresaw the consolidation in the market and what affects it would have on the companies caught in the middle.  See also What’s Next for ERP in 2008; and, The 7 Trends for ERP in 2008; and, What Customers Want from their Software Vendors; and also, SAP’s Business Objects Partnership with Oco.

 

Jutras identifies the three “Key Business Value Findings” for the enterprise deciding whether to go solely ERP or Best of Breed.  These three factors are:

 

• Functionality
• Integration
• Ease of upgrading to new releases

 

Her report includes very descriptive and easy to understand tables and figures such as:

 

• Levels of integration
• ERP module adoption rates
• Adoption rates of ERP extensions

 

At the top of each of her four chapters is a “Key Takeaway” section in bullet points.  This is extremely helpful to the reader.  It helps direct your attention to the salient points and provides a fast and easy way to return to a chapter and refresh one’s recollection.

 

For all those involved in the industry this is a report you should keep handy.  It definitely helps bring the whole recent picture into clear view.

 

 

 

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It is important to note that Oracle does not have the familiar 12/31 year end, but rather a 5/31 fiscal year end.  Ahead of their conference “Oracle OpenWorld 2008” held in San Francisco this year, Oracle released a wave of glowing financial successes for its first quarter for 2009.

·         Net Income increased 28% to $1.1 Billion

·         Revenues increased 18% to $5.3 Billion

The second quarter is more in question.

·         Non-GAAP revenues could fluctuate anywhere between a 12-15% increase or drop as low as only a 9% increase due to currency fluctuations

·         Non-GAAP EPS should be around 26¢ due to earnings split between higher and lower tax jurisdictions.

The forecast for new software license revenues are also susceptible to the fluctuating currency markets with estimates at 5% - 15% without fluctuations and 2% to 12% if fluctuations are taken into account.  Kenneth Chin, and analyst for Gartner, focused on this broad range and stated:

"Foreign currency had a plus seven percent impact on earnings this quarter, and they see a minus three percent impact for the next quarter, which can be fairly significant.  There's nothing to say that, if the dollar moves more quickly and becomes stronger, that the negative impact wouldn't hit five percent or more."

Fifty percent (50%) of Oracle’s business is license revenue and maintenance fees.  The fastest growing part of their business is middleware.  Larry Ellison, Oracle CEO, is confident that they have or soon will replace IBM in this market space.  For a more complete commentary on the second quarter’s outlook and beyond see Richard Adhikari’s article Oracle Sees Tougher Days Ahead. 

With a broader portfolio of software products to bring to the market the emphasis this week at the San Francisco conference will be on the $8.5 billion purchase of BEA.  The BEA middleware products “are key to Oracle's service oriented architecture (“SOA”) strategy.”

Oracle’s next major release will be 11g, expected by the end of the 2009 fiscal year.  BEA will be an integral part of its latest Web and SOA platforms release. 

Also of note is Oracle’s Green Program and its virtualization initiative.  To read the details on the tremendous increase in savings on these two programs and the Integration of the BEA software products into Oracle’s latest offerings see Oracle's Big Show will be BEA's Coming Out Party.

  

 

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Richard Adhikari reports in InternetNews.com that SAP plans to move aggressively forward with its SaaS offering, Business ByDesign, and is targeting the SMB customer in his article SAP to Innovate Heavily in SMB On-Demand Suite - updated - Business intelligence to pervade enterprise software giant's forthcoming products.  It appears from some of the comments quoted from the SAP executive suite that the word “aggressive” is only the tip of the iceberg:

Henning Kagermann, co-CEO stated:

“When you come to challenging times, you have to take risks. Business ByDesign is not just about product, we also want to focus on profitability, and in the volume business you have to do a lot of innovation to make the business profitable”

Jim Snabe, head of SAP's business solutions and technology, stated further:

“You can look at it from two angles. One is how to convert money into ideas; the other is how to convert ideas into money”

In addition to the predicted new innovation of this SaaS offering which includes CRM, SAP will integrate its Business Intelligence (“BI”) technology into the business suite as a direct result of its purchase of Business Objects last year.  This will bring the analytics portion into the new offering.  Customers will be able to analyze their historical projections as well as future projections.

So when should we expect this new business suite to be rolled out.  SAP says to look for it by next year.  Just exactly when next year isn’t quite clear.

In related SAP news:  In a move to emphasize its focus on profitability and a bid to match the pricing of Oracle, its chief competitor, SAP customers are none-too-happy with the recent price increase for its enhanced maintenance “Enterprise Support”.  For the full story see SAP CEO Defends Price Hikes as Customers Gripe - In its drive to become more profitable, has the enterprise software vendor stirred up a hornet's nest?  Kagermann defended his company’s actions by stating:

"We're offering a new service which is much larger than before, has a certain value and a certain price. The cost for us is higher, and so we believe it's a fair price."

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Kathleen Goolsby, a writer for Sandhill.com, has posted a very interesting piece of her interview with C.K. Prahalad entitled C.K. Prahalad on the New Age of Innovation.  Prahalad is a noted author and current Distinguished Professor at the University of Michigan specializing in corporate strategy.  Prahalad’s new book, The New Age of Innovation, is prescient and lays out his vision of a new business model and how IT and the influence of consumers will shape the enterprise’s approach to competitiveness in the future.  Her article is not the typical interview peppered with questions that break up the flow of thought.  She deftly asks the right leading questions and allows the author to expound on his thoughts and ideas.

The interview begins with Prahalad laying out his vision for the future of competitiveness in the coming decade.  He has identified 4 trends that are converging in a way that will change the way we think about value creation. These 4 trends are:

• Connectivity: This is the foundation of the coming shift in the paradigm, be it through PC’s or cell phones.
• The Cost of digitization is declining and so deployment across borders becomes more attainable.
• The convergence of technologies: “Is your cell phone a telephone, a computer, a camera, a watch or all of the above?”
• The emergence of social networks.

Next Prahalad explains that there has been a shift in the balance of power between the company and the consumer.  It is the consumer who has as much, and in some cases, more power than the enterprise.  The enterprise of the future will not need to own the resources, but rather have access to a myriad of resources from around the globe.  Each consumer is unique and each consumer decides his or her content (i.e. “co-creation of a personalized experience”).

“Co-creation means two joint problem-solvers: the company and me. And it is about experience, not about products. So we have a co-created, virtualized experience real value instead of a product-centric real value.”

He explains that this is not a supply chain sequenced approach.  There is no pre-positioning of activities.  The enterprise must have access to many vendors in numerous locations in order to fulfill the unique customer request.

Goolsby asks the author to give concrete examples of how this new business model is working today.  I must admit that Prahalad details some excellent examples.  However, when I read the article I noticed one thing that was conspicuously missing.  His business examples all dealt with services.  His first example describes how a health insurance company is now able to insure people in high-risk categories with chronic conditions that require expensive medication on a continual basis.  His second example dealt with how a fleet management company of helicopters, jets, and other modes of transportation, with numerous customers requiring various services was able to cut its costs.  But what about manufacturing?  Won’t there still be a need for supply chain management with a predetermined sequence or positioning of activities and vendors.  I’m sure that the non-service industries will also be able to benefit from the 4 trends identified above, but I am not exactly sure how they fit into his new business model.

Prahalad goes on to say that enterprises must rethink their approach and realize that IT becomes a strategic asset.  Every company will be able to differentiate itself because now they will be dealing with personalized consumer experiences and not a commoditized product.

Finally, Prahalad puts forth the premise that enterprises will have to become consumer-centric global businesses and our IT systems must move to become citizen-centric public services.  I will tell you this; he had me until I came to this last part about consumer-centric and citizen-centric.  I began to think about “One World Order” and thoughts of all of us wearing that same gray Mao suit.  When he got to the point of stating his vision of “a platform as an ecosystem of large and small companies working together to common shared standards”, he lost me.  For me I began to view his discussion not in terms of IT and innovation, but rather as a quasi-political statement.  Maybe it is the coming election and my mind jumped from business to politics, but it just didn’t sit right with me.
 

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I have reported on several new technologies as they have entered the market, such as SaaS and SOA, and also the newest devices powered by the latest applications.  Jim Hemmer, an experienced CEO in the hi-tech and communications industries, brings this altogether in his cutting-edge Op-Ed for SandHill.com entitled The Mobile Bang Theory.  I highly recommend this article to my readers and it is a must read for the IT managers trying to get a handle on the security and control issues that mobile computing presents.  Hemmer begins his article by announcing the new shift in the archetype and identifying its 3 components:

“a mobile renaissance is afoot as a result of more powerful devices, faster wireless networks and broader use and acceptance of Web services and SOA”

Hemmer’s insight begins by recognizing the catalyst for enterprise mobility.  He labels this the “outside-in demand” phenomenon.  Consumer’s personal use of mobile services on mobile devices has forced enterprises to rethink their approach.  With this new approach come the challenges of providing access to the data and applications so the employee/user can optimize their efficiency.

For the enterprise the competitive advantage comes from the ability of the mobile user being able to enter data once into a mobile device which results in not one response but puts in motion a multitude of real-time business processes.  Hemmer identifies the trends in mobile computing and how the applications perform.  He then provides some real-life examples of how this approach works and the higher returns the innovative enterprises have experienced.

Hemmer’s advice to the IT managers is to develop a mobile strategy that supports multiple devices and multiple solutions.  The old siloed approach does not fit into this model. Its inflexibility is too costly.  He puts it succinctly by stating:

“The real game-changer is to mobilize diverse business processes, applications and data from a variety of internal and external sources — from one unified, cohesive platform.”

 

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Richard Adhikari reports on a recent summit of SaaS executives in his article Are Changes Coming in the SaaS World?  The direction the industry should take was discussed but with little consensus.  It seems that those assembled see the huge potential in acceptance of SaaS by the large global enterprises, but no one can quite figure out how to break through the barriers.  Adhikari has done an excellent job of presenting the plethora of diverging views on why or why not the SaaS vendors should target the large enterprise market and how to go about doing it.  I am not privy to their marketing research nor have I suffered the trials and tribulations that some of the participants relate.  It just seems to me that sometimes it might be best to let the sleeping giants sleep.  Will these large enterprises come on board sooner or later?  Adhikari cites Maynard Webb, CEO of virtual call center company LiveOps who states:

It's a vicious circle: SaaS vendors can't sell to the enterprise because they haven't solved many of the concerns IT has with on demand software, so they don't try.  Most SaaS vendors target the SMB market, while the rest aim "at niches in the enterprise such as human resources"

What becomes apparent when reading Adhikari’s article is that there isn’t just one reason for the reticence of large enterprises to accept the SaaS model.

In my research in this area I have come across varied opinions and insight into just what exactly SaaS is and who should take advantage of it.  In my February 10, 2008 posting to this Blog SaaS is the Future software developers were scrambling to meet the demands of their market.  At that point their market was the SMB enterprise.

A further explanation as to the non-universal acceptance of SaaS can be gleaned from an insightful comment by Sybase CEO John Chen:

“ … But the reality is that every new technology and every new method will have its audience – but it won’t wipe out the previous ones.”  For the full story and an interesting perspective see my May 1, 2008 posting What Customers Want from their Software Vendors.

Of course there also is the other side of the coin.  The SaaS software developers themselves have their own internal hurdles to surmount.  In my June 1, 2008 posting Growing Pains of OnDemand I highlight one of the problems of managing a subscription business:

“Simply put, the business processes needed to run a subscription business do not yet exist, and when these new business processes do come on line, they will be incompatible with the existing business processes for a large enterprise software company.”

Perhaps it is best summed up in Adhikari’s article by Lisa Lambert, managing director of the software & solutions group at Intel Capital:

Intel's Lambert thinks the notion of selling to the enterprise is a red herring.  "I don't think it's a question of enterprises not being ready to buy SaaS, it's that it makes more sense for small businesses to buy SaaS.  The value proposition of SaaS really appeals to small businesses, which were excluded from being able to buy legitimate software infrastructure that's enterprise ready because they couldn't afford it, it was too expensive and complex, and had long implementation cycles."

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Business Objects, an SAP Company, continues its strategy of partnering with innovative companies offering Business Intelligence (“BI”) in a SaaS approach with the blessing of its parent, SAP. Its latest association is with Oco. Although both companies are players in the SMB space and both offer BI in the SaaS mode, Oco is a much smaller company. Oco’s competitive advantage comes from its development of templates for various vertical niche markets such as analytical tools and reports in the retail, industrial manufacturing, and consumer packaged goods industries. This collaboration suits both companies. SAP furthers its desire to make its products work with other vendors’ products and Oco gains an entrée to the larger SMB customer that was not previously available to them.

The BI marketplace has become extremely competitive. The main distinguishing factor for vendors in this market is to provide the products that give the enterprise the ability to make decisions faster. Business Objects’ SaaS offering, Business OnDemand, provides a fast and accurate solution. Now with the added advantage of Oco’s data discovery and mapping tool, the solutions for the SMB will come faster and at a lower cost. These partners recognize that the much larger enterprises who want their intelligence customized might not be so receptive to the Oco data model. Richard Adhikari explains in his article Business Objects Teams Up With Oco the customer first accepts Oco’s data model and this data model then finds all the data in the enterprise and produces the BI in a low cost manner.

Adhikari cites Business Objects Vice President Mani Gill, who explains the enhanced OnDemand offering this way:

Oco will let us deliver hosted multi-source data warehouses in multiple industries and functional areas.

We use our enterprise information management tools to pull data from customers, host it ourselves and provide business intelligence on top.

For a fuller explanation see Adhikari’s article. He points out that the combination of these two vendors additionally benefits both by allowing Oco to become a reseller of Business Objects products and permitting Business Objects yet another opportunity to differentiate itself and gain a foothold in this market space.

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First I would like to define what we mean by Unified Communications (“UC”).  Unified Communications encompasses email, instant messaging, texting, phones, and other networking and mobility applications.  In short Unified Communications “ … lets users access people and resources, no matter the location or communication channel, spurring productivity and boosting business processes at an economical cost.”  For an in-depth discussion on this topic see UC Will Prove Challenging to Buyers And Sellers by Judy Mottl.

Initially SMB’s have found it a daunting task to try and pull all these various applications together into one cohesive platform.  The lack of funds and the lack of familiarity with these tools have hindered their move to UC.  The familiarity issue is evaporating as more people are using these communication tools in their non-work life and begin to demand these tools in the workplace.  For further discussion on the capabilities and uses of the newest wireless devices and the coming of the Mobile Web see the following posts in this blog:

• Blackberry Bold RIMs Next 3G High Speed Wireless Handset

• 4G and The Mobile Web: WiMAX v LTE

SaaS may be the way that SMB’s can overcome the budgetary constraints as well as the integration problems that have acted as a barrier for these enterprises.  SaaS provides a faster deployment and the right provider can pull all the telephony tools and applications together into one unified and interconnected unit.  Judy Mottl has written an excellent article that details in the ins and outs for those SMB’s considering this next step into UC.  In her article SaaS Best Path for SMB Unified Communications: Service strategy lets small companies enjoy technology benefits without the headaches she interviews Simon Edwards, UC project director, British Telecom (“BT”), who cautions not to get locked into one particular platform:

"SMBs have to make sure they stick to an agnostic platform," said Edwards, adding that the best approach is an open standards platform that allows emerging technologies from different tool makers

Mottl concludes her article with a quote from Mat Taylor, a senior software architect with BT:

"The ability to get things done faster, get workers more engaged in business scenario, provide better customer service, are all big productivity wins that benefit the bottom line"

For more on the coming of age of handheld devices for the UC revolution see the following posts in this blog:

• Future of Wireless Devices

• SAP Sapphire 2008

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BMC’s purchase of ITM is only the latest in its string of acquisitions calculated to make it a formidable player in the ERP market. This four year march included the following acquisitions:

• RealOps which automates IT processing: see BMC Buys Into IT Process Automation

• Calendra an identity management specialist: see BMC Grabs ID Management Vendor

• BladeLogic a player in the field of change management: see BMC to Buy BladeLogic For Nearly $800M

ITM’s software integrates the segregated silos of the IT management of the past to provide “visibility, coordination and control” for the CIO. This translates into a more efficient decision making process. BMC’s vice president, Herb Van Hook, described ITM as

a set of very high-level applications IT uses to run itself as a business organization within the enterprise

and the software

asks whether you're doing the right projects; what is the business impact of this project versus that project

See Richard Adhikari’s excellent article in InternetNews.com BMC Completes ITM Acquisition: Software company moves toward a business-oriented view of IT. In it he details the ITM acquisition and discusses the competition in the IT Resource Planning (“ITRP”) space. Adhikari reports that BMC’s acquisition strategy is aimed at partners and so there is “very little overlap” which translates into less integration in its software suite. It remains to be seen if BMC can rollout this new product into its customer base.

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Daniel Druker posted an interesting article in his blog SaaS 2.0 entitled Sage Advice. In it he explores an interesting twist to the value of SaaS to the Channel Partner. SaaS is not only the wave of the future, but it also fits quite nicely into one’s retirement planning.

Druker points out that the Value Added Reseller (“VAR”) has a business model that emphasizes upfront revenue. They sell the software and can also look to implementation as another source of revenue, but by and large there is no steady stream of cash that hits the P&L. The value of the Channel Partner’s business is dependent on finding new customers and selling year after year.

The missing element to the cash flow problem is what the SaaS business model can provide, Contracted Monthly Recurring Revenue (“CMRR”). See my post in this blog March 2nd entitled Best Practices for the SaaS CEO – Top Ten Rules. Byron Deeter’s first rule is that “Cash is King”.

In Daniel Druker’s article he recounts a discussion he had with an established Channel Partner thinking about retirement and the selling of his business. Adopting the SaaS model seems to provide the answers this VAR owner needs. As Druker points out:

• the valuation of any business is driven by future cash flows
• shifting to SaaS will mean a much higher valuation and selling price

Albeit not entirely altruistic, yet another reason to adopt the SaaS approach.

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In my reading of interesting and relevant articles posted on the web, there have been several follow-on articles which expand on some of my more recent posts to this Blog. Due to the number of articles that I have come across, I thought it best to cite to some these articles, with a line or two of brief explanation, and let the reader pick and chose any article(s) of interest. I found the following to be of particular interest:

• 
  Time to Scrap Your BPM Spreadsheets? SMBs have powerful SaaS alternatives: Here is a way to streamline the budgeting and financial planning process. This will facilitate collaboration, what-if scenarios, and contingency planning.
• 
  Apple Watchers Salivate Over 3G iPhone Rumors - Developer conference expected to be launch venue for new iPhone: This will be one to watch this week. Apple’s Worldwide Developers Conference (WWDC) starts Monday, June 9th in San Francisco. Could this be Apple’s answer to the recent flurry of applications announced to be integrated into the BlackBerry?
  
• 
  Software Sales in 'SaaSy' Transition - The consumer-inspired trend of easy, online access to applications is finding a ready market in the enterprise: What can I say. We told you so. This is a discussion about applications designed for the end-users and not colorful reports to impress the top brass.
  
• 
  BlackBerry Defies Stagnant Tech Spending - Companies are untying IT purse strings for smartphones but not for much else these days: With IT spending slowing down, RIM’s market share is estimated to reach 82% this year.
  

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There is a revolution of sorts going on in the computing world. I do not want to over-dramatize this fact; however I am reminded of author and pamphleteer Thomas Pain who wrote:

• “Lead, follow, or get out of the way”
• “These are the times that try men’s souls”
• “The harder the conflict, the more glorious the triumph” (yes, this is drama)

Why all the drama? Well, I recommend you read Tien Tzuo’s article entitled The Global Transformation to On-Demand. Tzuo’s subtitle may aid in understanding my reference to the drama (i.e. “Why the world is moving to subscriptions and what it means for businesses”). This article should be read in conjunction with Daniel Druker’s article Different is hard: SAP - (Not Too Much) Business by Design.

Let’s start with Tzuo’s rather succinct history of the change in the paradigm from on-premises computing to subscription buying via the internet. Tzuo was on the cusp of the wave that brought in the SaaS business model. The guiding ideology for Tzuo and his contemporaries regarding SaaS is that

“ … software belonged on the Internet, not on a CD, and in that process it is transformed from a product that you buy to a service that you subscribe to.”

Tzuo’s analysis of why the trend towards subscriptions (i.e. On Demand or SaaS) rather than the traditional purchase or licensing model covers a broader spectrum than just the software industry. He explains that the internet has transformed the way people buy. The purchaser now has more options from more packages and as their needs change so can their subscription. Buyer’s remorse is eliminated.

“no large up front investment, no ongoing maintenance costs or hassles, no insurance costs – just pay for how much you use.”

Tzuo points out that there are significant differences between the processes for managing a subscription business versus the traditional product for sale business. These differences are:

• The ability to offer your product in parts, as well as full packages
• Invoicing and payment terms must be able to track the flexibility in the product offerings
• There are constant changes in the subscription and the revenue collection process becomes convoluted
• The metrics for this type of business differ from the usual billing metrics and so the ability to measure success and redirect efforts must adapt

The difficulties in managing a subscription business can be demonstrated by reference to the current situation at SAP and its announced delays and reduction in investment in its hoped for SaaS offering, Business by Design. Daniel Druker presents an in-depth analysis to the possible problems facing SAP. He lays out the trials and tribulations that a mega-corporation must face when trying to adapt to the changes in the industry. Instead of the purported technical issues facing this new service such as the “Mega-tenancy” model that a company the size of SAP is trying to implement, Druker sees the problem as the age-old issue of resistance to change. He labels this the “innovators dilemma”. The best and the brightest personnel shun the new innovation, especially if the promise of returns is far removed from the fundamental business model. It almost seems as though the company sets up its own barriers. A matrix organization, such as SAP, organized by country or region, is more inclined to focus on hitting their sales goals for the quarter or month and less likely to assist in the latest project.

In addition to the innovators dilemma, Druker also includes a discussion much like Tzuo’s differences between a subscription run business and that of the traditional product driven business model. Simply put, the business processes needed to run a subscription business do not yet exist, and when these new business processes do come on line, they will be incompatible with the existing business processes for a large enterprise software company.

Druker concludes by stating that, “SAP is an amazing, well run company”. It remains to be seen how well they will manage this latest innovation in the computing world.

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Far be it for me to offer anyone advice on their taxes. Lucky for us R. Ray Wang has done the due diligence and reports in his blog for May 19, 2008 that the Economic Stimulus package signed by President Bush this past February contains two (2) provisions that may spur the purchase of software to the SMB marketplace. He identifies these 2 opportunities at tax savings as follows:

• “Bonus depreciation”: SMB purchasers of software can forgo the 5 year straight line write-off for depreciation and take a full 50% depreciation expense in the first year.

• “179 deduction increase”: The annual purchase of such capital qualifying for such a deduction has been increased from $500,000 to $800,000 with an increase in the deduction allowed for such qualifying purchases by SMB’s from $125,000 to $250,000.

For those of us not up to speed on what a 179 deduction is, Wikipedia provides this brief description:

Section 179 of the United States Internal Revenue Code (26 U.S.C. § 179), allows a taxpayer to elect to deduct the cost of certain types of property on their income taxes, as an expense (rather than requiring the property to be capitalized and depreciated). This property is generally limited to tangible, depreciable, personal property which is acquired for use in the active conduct of a trade or business. … The 179 election is NOT mandatory, and the equipment may be depreciated according to sections 167 and 168 if preferable for tax reasons. Further, the 179 election may only be taken in the year the equipment is placed in use and is waived if not taken in that year. However, if the election is taken, it is irrevocable unless special permission is given.

As a non-tax expert, it appears that the above items allow for a faster write-off of the expense (i.e. purchase of the software). The conventional thinking is the more one is allowed to expense, the lower the taxable income. This should provide an added incentive to the SMB purchaser to complete the purchase, however, as Wang emphasizes, the software must be deployed this year in order to take advantage of the additional tax savings.

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As many of you may know already May 4th to 7th was Sapphire 2008. This year it was held in Orlando, Florida. What is Sapphire? Well, it is SAP’s annual international customer conference. It is the place where the enterprise’s decision makers come to see the latest business solutions that SAP has to offer. There are a plethora of announcements and it is difficult to keep all the facts and details straight in one’s mind. I have listed below what I found to be a few of the more noteworthy announcements with a brief summary and if any of these are of interest follow the links for more details.

First on the list was the pre-conference announcement. My guess is that this was sort of a primer for things to come. The “mobile workforce”, many of whom are users of the ever popular hand-held device from Research in Motion (“RIM”) known as the Blackberry, may be interested to know that they will have access SAP’s CRM functionality in the coming months. The plans are to eventually integrate the rest of SAP’s functionality into the handheld device. As a Blackberry user myself, I think the implications of this could be enormous. Just the mere fact of being able to send and receive my emails wherever I happen to be is a huge advantage to me. SAP and RIM are talking about a mobile workforce now with access to all parts of the enterprise including order applications and inventory management. A more detailed description can be found in the Internews.com article SAP Is Wooing the BlackBerry CRM Crowd.

The next announcement I found to be of interest was that Rimini Street, the low-cost third-party provider of support, will be providing support for the SAP R/3 ERP suite. The concerns about SAP pulling support for its older versions was alleviated a bit when Rimini Street pledged to continue supporting the older versions without any upgrades until the year 2020. The cost savings for the R/3 user base could be significant. SAP had recently announced that it would raise its maintenance fees from 17% to 22% to keep up with the industry standard, particularly Oracle. Now with the availability of support from Rimini Street, CEO Seth Ravin, boosts, “Most of our customers are saving on average 70 percent against overall maintenance costs and at least 50 percent on their annual maintenance bill. We cut customers' costs in half and still make a very hefty profit." Ravin’s approach is that R/3 users don’t want to move to the next platform since “they spent years and a ton of money to get it working right and,…there's nothing that justifies the cost of upgrade, disruption and opportunity cost…” To read more see Rimini Street Adds SAP, Passes on TomorrowNow.

Following the Rimini support announcement, SAP made another announcement concerning its own Enterprise Support. This new approach to support from SAP will be more of a holistic approach and not the usual patches sent to fix bugs in the software. SAP will be supporting SAP solutions as well as non-SAP solutions and focus its attention on SOA. To learn more about the components of this Enterprise Support offering from SAP read SAP Beef’s Up Enterprise Support. This article also contains Oracle’s perspective on SAP’s offering and how it competes with SAP.

The last announcement coming out of Sapphire 2008 that I will discuss are the two add-ons that will assist in the design and execution of new business processes without the need for new code development, SAP NetWeaver Business Process Management (BPM) and SAP NetWeaver Business Rules Management. With close to 39,000 NetWeaver deployments, these new add-ons continue to emphasize SAP’s push into SOA. SAP's NetWeaver BPM will provide the ability to implement and manage complex business processes. In essence it simplifies the implementation of an SOA environment. As stated in SAP Add-Ons Aim to Simplify BPM for NewWeaver, “NetWeaver BPM's unified modeling capabilities mean that a single version of a business process will be available throughout an enterprise, and its users will be able to edit it and make changes without losing details in translation.”

The above discussion is only a sample of the announcements that came out of Sapphire 2008.

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Maryann Jones Thompson interviews Sybase CEO John Chen in an Op-Ed in SandHill.com. Thompson artfully takes the reader through the strategy and growth of Sybase and allows Chen to discuss his stewardship of the company from 1998 to the present.  What I found of particular interest was Chen’s response when asked why Sybase was slow to embrace SaaS, Open Source, and other new technologies.  Chen responded as follows:

“In the 1980s during the transition from mainframes to UNIX, everyone forecasted the death of mainframes. Then NT arrived and the end of UNIX was proclaimed. Now people are talking about open source or SaaS in the same way. But the reality is that every new technology and every new method will have its audience – but it won’t wipe out the previous ones.”

To me this answer is right on and makes good business sense.  Chen’s approach seems to fit quite nicely with another SandHill.com Op-Ed piece written by M.R. Rangaswami entitled Old Rules for a New Era.  It appears that Rangaswami has a similar view vis-à-vis Chen’s recognition that new methods come online and attain their own audience.  I think implicit in Chen’s comment is what Rangaswami discusses regarding the fact that today’s IT Buyers struggle with the ever-changing new models and technologies such as SaaS, Cloud, and SOA.  Yes, the future does look bright as these new products come to market and affect the technology strategies of today’s global enterprises.  However, the proliferation does have its drawbacks. Just how can the software vendor get its products noticed?  In essence the question becomes ‘Just what is it that the IT Buyer wants’.  The answer to this question is alluded to in the subtitle to Rangaswami’s article, “Software vendor success will not be determined by a specific technology or model but by meeting customer expectations”.  Here are those expectations as developed by M.R. Rangaswami:

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  Reliable – Products will be expected to work out-of-the-box and continue to do so as they interoperate with other products. Heavy integration work will not be expected or tolerated.
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  Secure – Software must be secure beyond today’s acceptable levels. Vendors must provide guarantees and incentives to convince buyers of this heightened security.
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  Fast – Solutions have to be able to be deployed quickly and offer a speedy time-to-value. If it can’t be on-demand, then it needs to be close.
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  Simple – The hallmark of next-generation software will be its ability to be intuitive for its users – as intuitive as an online application aimed at consumers. No training should be required. It must also be simple to purchase and deploy.
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  Innovative - Buyers will expect vendors to continue to innovate their solutions. They will value new approaches to solve the same problems as well as attempts to solve entirely new business problems.

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Andy Patrizio reports for InternetNews.com on a new offering from Sun Microsystems that will allow software vendor’s customers to convert from an on premise version of their application to SaaS using existing technologies.  The good news is that this conversion can be done without rewriting code, which in some cases can take many engineers an inordinately long period of time to design and then test the new architecture.  This is all made possible through Sun’s new “virtualization service”.  Sun or a Sun partner will then host the application.  Of course the service only “supports applications hosted on a Sun server using Solaris, Solaris' Containers virtualization technology and xVM, Sun's virtualization software.”

The advantage to this service was explained by Vince Vasquez, business development manager for SaaS programs at Sun:

"People see the demand for on-demand but they are stuck with a year or more of development time without actually knowing if there's a market there for their product.  With virtualization, they can get into that market right now."

If this is of interest, I strongly recommend reading Patrizio’s article entitled, Sun Latest to Help App Vendors Get 'SasSy'.  In it Patrizio reports on the success to date of this service with a case study and also discusses pricing and Sun’s 90-day free trial offer.

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Before we discuss the enforceability (or lack thereof) of such agreements, it is probably best that we at least define our terms so we all know exactly what type of agreement we will be examining. Wikipedia has the following definition:

A clickwrap agreement (also known as a "clickthrough" agreement or clickwrap license) is a common type of agreement (often used in connection with software licenses). Such forms of agreement are mostly found on the Internet, as part of the installation process of many software packages, or in other circumstances where agreement is sought using electronic media. The name "clickwrap" came from the use of "shrink wrap contracts" in boxed software purchases, which "contain a notice that by tearing open the shrinkwrap, the user assents to the software terms enclosed within".

Click-wrap is the electronic equivalent of the shrink-wrap method which allows users to read the terms of the agreement before accepting them.

The content and form of clickwrap agreements vary widely. Most clickwrap agreements require the end user to manifest his or her assent by clicking an "ok" or "agree" button on a dialog box or pop-up window. A user indicates rejection by clicking cancel or closing the window. Upon rejection, the user can no longer use or purchase the product or service. Classically, such a take-it-or-leave-it contract was described as a "contract of adhesion, which is a contract that lacks bargaining power, forcing one party to be favored over the other". The terms of service or license do not always appear on the same webpage or window, but they are always accessible before acceptance.

As a contract negotiator by inclination, I have a natural aversion to such forms of agreements. Simply put, one cannot negotiate such agreements. I’m grateful that Wikipedia acknowledges that such forms of agreements in the past were called ‘contracts of adhesion’. Please note that in the past these types of agreements lacked the bargaining element; however these forms of agreements are evolving. The law has a term that may be applied to a vast number of these clickwrap agreements, Caveat Emptor, Buyer Beware.

Jason Haislmaier in his blog ThinkingOpen addresses the necessary elements for the ever-present “click-to-accept” contracts that many of us often face in his article How Do I Build an Enforceable Online Agreement? — Not (Always) the Way SalesForce.com or Google Would. I strongly recommend Haislmaier’s article. In it he discusses the American Bar Association’s Committee on Cyberspace Law and its year-long study regarding such agreements. Haislmaier discusses in depth the committee’s “bottom line” steps required in order to have an enforceable online agreement and adds some anecdotal evidence when online vendors might fall short of these steps. The four “bottom line” steps as espoused by the ABA’s Committee on Cyberspace Law are as follows:

1. The user must have adequate notice that the proposed terms exist;

2. The user must have a meaningful opportunity to review the terms;

3. The user must have adequate notice that taking a specified, optional action manifests assent to the terms; and

4. The user must, in fact, take that action.

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Now this is the kind of story that not only makes good business sense it also discusses the application of new technology to something most of us find exciting and can understand, “high-stakes” Baseball contracts. The Major League Baseball Players Association (“MLBPA”) has decided to assist player agents get faster and deeper access to statistics and comparative analysis for their contract negotiations with Owners and General Managers. The MLBPA will be using IBM's Cognos BI software to analyze, compare and project player stats, and chart individual players' progress over the course of this year’s baseball season.

Doyle Pryor, assistant general counsel of the MLBPA, released a statement reported by InternetNews.com in its article Baseball Gets a New Data Cleanup Hitter stating, “Our analysis of player performance is as complex and dynamic as the work of high-powered business analysts in Fortune 500 companies, and we need to use the same robust, flexible interface to achieve reliable results."   Joseph Pusztai, IBM Cognos' director of product marketing added, "Once the agents become comfortable with this, they'll be able to leverage the information for their clients in the best way. The ultimate goal is to come up with statistics that shows a player's success. For example, the common stats will show you home runs, but now they'll be able to see how many were hit in the late innings, when it tends to matter more."

 

Phil Taylor, senior writer for Sports Illustrated, commented that, "The stats help both the players and owners make their case during contract negotiations. If a player hits .285 for the year, but he can show that he hit .350 from the 7th inning on in tie games, that'll help his case." Such availability to these kinds of stats can be a double edge sword and be used by the Owners and General Managers to show weak hitting in the later innings as well.

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In my research for this Blog I came across an article that caught my eye. Jeffrey Gordon in his blog licensinghandbook.com posted an article entitled Becoming a better negotiator. Since part of my stated goal for this Blog is to discuss some of the nuances in the contract negotiation process, I felt Gordon’s article was a nice fit. His main advice to become a better negotiator is simply to go out and negotiate. Eventually one develops a style. Don’t be afraid of failure and learn from your mistakes. If I may be allowed to add a bit of fine tuning, I would also encourage one to learn from their colleagues and to ask as many questions of them as you need to become comfortable with the concepts and the eventual outcome of the negotiation. It is never wise, especially in a contract negotiation setting, to ‘fake it’. Ask as many questions as necessary of your opposing counsel during the process.  Your opposing counsel should understand that your goal in the negotiation is to protect your client and limit their risk. If they don’t understand your purpose and take a more adversarial approach to your questioning, do not be intimidated. Such a posture could actually be a negotiation strategy on their part. 

I chose to discuss Jeff Gordon’s article because he includes the results of a study by the US Olympic Committee entitled Reflections on Success. The Top 10 Success Factors for Olympic Athletes from this study are listed below. I found the results of this study particularly interesting, since the number one success factor is something which I wholeheartedly agree. Persistence is the key to success. If any of you have read my case studies which I have included in this Blog, you will see that persistence in the negotiation process is what I strongly urge for my readers. Although I could never be considered an Olympic Athlete by any stretch of the imagination, I do take some comfort in the US Olympic Committee’s validation on this one point.

 

Top 10 Success Factors

1. Dedication and Persistence: 58.1%

2. Support of Family and Friends: 52.0%

3. Excellent coaches: 49.4%

4. Love of sport: 27.1%

5. Excellent training programs and facilities: 22.3%

6. Natural talent: 21.9%

7. Competitiveness: 15%

8. Focus: 13%

9. Work ethic: 11.6%

10. Financial support: 11.5%

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IDC is a global provider of market intelligence and advisory services to the High-Tech marketplace and assists CIO’s and others to make informed decisions on technology purchases and business strategy. You can learn more about IDC by visiting their homepage. IDC held their annual Direction’s conference this week in San Jose, California and their main topic for discussion was the affect the economic slowdown, real or perceived, will have on this year’s IT budgets.


The conference compared this year’s downturn to the last major downturn faced by the industry in 2001 – 2002 and found significant differences. Where the last major economic mess was mainly a business-led crisis due to the over valuation of many dot.com start-ups exacerbated by the terrorist attacks of 9-11, this new economic down turned is basically due to overzealous consumers saddling themselves with mortgages they couldn't afford and affects one sector, the financial services industry.


The collapse of the housing market spread over several geographical areas should not have a direct impact on global enterprises decisions to proceed with their planned purchases of IT. With this in mind, the growth in IT spending for the US and Western Europe will probably be reigned in to 4% growth, half of the 8% growth in IT budgets for 2007, while the BRIC countries should continue in their IT spending unabated with a 10% to 20% growth rate over last year.


Andy Patrizio reports from the conference in his article Which IT Sectors Will Weather a Financial Storm? He includes in his article the following observation:


The hardware most likely to be affected by a reduction in spending, not surprisingly, is PCs, followed by mobile devices -- smart phones in particular. Storage is least likely to be cut, followed by networking hardware.


Software reductions are also anticipated, but at a much slower rate than hardware. Office and operating systems are most likely to get the chop (bad news for Microsoft), while security and compliance software is least likely to be cut.

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SAP took the opportunity at CeBIT 2008, the world leading technology fair, to announce its latest partnership which builds upon SAP’s Business All-in-One solution. SAP has teamed with Intel and will be offering a landmark product on Intel Xeon-based systems via original equipment manufacturers (OEM) and hardware system providers based on SUSE Linux Enterprise from Novell and the database SAP MaxDB. Hardware offerings pre-installed with SAP software is landmark to say the least. The intended benefit for the SME market is a reduction in the Total Cost of Ownership of their IT systems. SAP stated in its announcement:

“The offering targets midsize companies in the manufacturing, service and trade industries and directly addresses the demands in these market segments for quick and easy implementation, and tailored yet scalable solutions at predictable costs."

Ray Boggs, VP of small and medium business research IDC, noted that having the alignment of hardware and software will give customers what they have been looking to do, “reconcile the somewhat contradictory goals of a solution designed to meet their individual needs but in an almost pre-configured fashion to minimize time and cost." SAP plans to continue with this strategy of partnering with hardware vendors to directly address the needs for TCO for its SME customers. For a more comprehensive description of this announcement see SAP and Intel Collaborate to Offer Pre-Installed Business Solutions for Midsize Companies Optimized for Quad Core Intel(R) Xeon(R) Processors.

Of course on the surface this hardware with pre-installed SAP software approach seems to be a winner. Even below the surface it is hard to find fault with this methodology. But I am a simple man. When I see the words “Xeon Processor”, “SUSE Linux”, and “database” in the same sentence my eyes begin to glaze over. I might have a talent for spotting an ambiguous phrase or two in a software license or consulting agreement and perhaps the ability to offer a revision to it to bring the language to a more equitable point of view. However, I wonder if it is reasonable to ponder this new approach from SAP from a slightly different perspective. I almost get the feeling as the Portuguese explorers must have had during their successive voyages down the coast of Africa in search of the riches that lay ahead in the Far East. These aren’t entirely unchartered waters, but one cannot be quite sure what lies ahead. Others, such as Microsoft, have gone down this course before. I have to wonder what obstacles may present themselves in the future. The usual suspects are ubiquitous, (confidentiality, ownership, infringement, anti-trust). I am sure that the right people at SAP and Intel have considered these issues and more and are fully prepared. The cost of doing business is a fascinating journey.

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Byron Deeter, Partner with Bessemer Venture Partners, a founding CEO of one SaaS business and a board member of three other pure-play SaaS companies, has firsthand experience with the on-demand model and is well-qualified to state that CEO’s of pure-play SaaS companies need to change their paradigm.  When one lacks a role-model and cannot find a neatly put together list of best practices, the skillful CEO pulls together his own rule book. Deeter and his team studied both hybrid and pure-play SaaS companies and developed their own list of best practices for the on-demand model. Veteran software CEO’s might want to heed his advice and shift their paradigm. I strongly urge my readers to read Deeter’s article Bessemer’s Top 10 Laws for Being “SaaS-y”. I’ll try to summarize below his ten “laws” for running a successful SaaS business.

1.     Cash is King (i.e. Contracted Monthly Recurring Revenue or “CMRR”): The old model that would value a longer deal with slightly less CMRR over a short term deal with a larger CMRR is out. The new model recognizes the likelihood that renewals will make up the difference. The need for working capital in the SaaS model emphasizes the importance of “customer churn” on this first rule. “The top performing SaaS companies typically achieve annual renewals on a customer count basis above 90% (much of which is often due to bankruptcies, acquisitions, and other events beyond the company’s control), and over 100% renewals on a dollar value basis due to up-sells into this installed base.”

2.     Sales Learning Curve – don’t ramp up your efforts too quickly: Refine your sales model and as it grows think in terms of CMRR.

3.     Once the Sales Learning Curve peaks begin to hire more renewal orientated account managers. These new account managers should be compensated on customer service, renewals, and upsells.

4.     Sell Directly – Channel relationships are unattractive. Without systems integration work nor the need to require huge hardware purchases or vast amounts of software licenses, the old Channel partnership model is not appealing. A new generation of partners and resellers will develop.

5.     Don’t rush to go global - Hold on Europe and save Asia for later. More barriers exist such as service level expectations, data access, and security. Don’t weigh down your company with the costs. Develop a strategy where Europe and Asia will come online as you become a public company.

6.     One datacenter: Studies show one datacenter is sufficient. No need to take on the costs and organizational complexity, at least until your company is public. Invest in backup and disaster recovery.

7.     Design a SaaS product that is single instance and multi-tenant. Multi-instance and single tenant does not apply to this model.

8.     Online marketing is a core competence – Your sales prospects are online. Leverage search engine optimization.

9.     Cash flow is critical due to low monthly subscriptions and so financial management is key. Weigh investments carefully and structure them in a way to allow future CMRR to produce measureable amounts.

10. Have enough investment capital to last at least 4 years. It takes a while to get to breakeven. The SaaS model takes a lot of R&D and sales expense on the front end.

I particularly like Deeter’s eleventh rule. Oh, did I say there were only ten? Here is number 11:

 You can ignore one of the above 10 rules. But only one. Deeter recognizes that there are no absolutes and welcomes a refinement when needed. However, his studies show successful SaaS companies stayed very close to the above best practices.

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