The BUSKLAW June Newsletter: Forcing Business Behavior Changes Through Buried Contract Provisions: Salesforce and Camping World

As reported by The Washington Post, business-software giant Salesforce recently instituted a policy barring its retailer customers from using its technology to sell semi-automatic weapons, including the AR-15 used in numerous mass shootings. One such customer is Camping World, whose Gander Outdoors division sells many "AR" and other semi-automatic rifles.

Rather than approach Camping World/Gander, a "leading" Salesforce customer, and negotiating the termination of their semi-automatic rifle sales in exchange for some benefit (such as a software discount), Salesforce was tricky. They buried a provision barring the sale of semi-automatic rifles in the acceptable-use policy ("AUP") binding on Camping World/Gander:

Salesforce wants to force Camping World/Gander to make a major change to its business model via an addition to their AUP that is irrelevant to their customer's licensed use of Salesforce software. And although sneaky, I bet that the Salesforce master software license agreement contains the customer's promise to follow their AUP "as Salesforce may amend it from time to time." Which brings us to the question of why Camping World/Gander is continuing to sell semi-automatic weapons to this day, apparently in violation of the Salesforce AUP. (Hey Salesforce and Camping World executives out there, what's the deal?) Doesn't Salesforce worry that if they don't enforce this provision in their AUP, they may be estopped from enforcing it in the future? I'd certainly worry about that!

The tactic of forcing business behavior changes (arguably for the greater good) through buried contract provisions is worth considering. To a large extent, Salesforce is acting to ban assault rifles because Congress and the courts have failed to do so, thanks to the Second Amendment. (Could the Founding Fathers have foreseen the ruthless killing efficiency of a semi-automatic rifle - or that just about any goofball can buy one?) As a tool to effect a noble purpose, I admire Salesforce's creative contracting.

But what I can't get over is Salesforce using its considerable business leverage on a valued customer to change their business model without prior discussions. And doing it with a "fine print" mandatory - and arguably irrelevant - contract provision (rising to the level of a "gotcha") is repugnant to me. That's not how reasonable persons should conduct business.

Are you game for the Salesforce approach to banning semi-automatic rifles (and the other nasties listed in their AUP)? Or (regardless of your feelings about the Second Amendment), do your sympathies lie with Camping World? Reasonable minds may differ!

If you find this post worthwhile, please consider sharing it with your colleagues. The link to this blog is www.busklaw.blogspot.com and my website is www.busklaw.com. And my email address is busklaw@charter.net. Thanks!

The BUSKLAW April Newsletter: On the Foolish Tension Between Lawyers and Business Folks

From my colleague Mark Grossman comes this joke (just in time for April Fool's Day): A man in a hot air balloon is lost. He reduces the balloon's height and spots a man below. He shouts, "Excuse me, can you tell me where I am?" The man below says: "Yes, you're in a hot air balloon hovering at 30 feet." " You must be a lawyer," says the balloonist. "I am," replies the man. "How did you know?" "Well," says the balloonist, "everything you have told me is technically correct, but useless." The man below says, "You must work in business." "I do," replies the balloonist, "but how did you know?" "Well," says the lawyer, "you don't know where you are, or where you're going, but you expect me to be able to help. You're in the same position you were before we met, but now it's my fault." ______________________________________...

The BUSKLAW November Newsletter: About the U.S. Army's Extraterrestrial Technology Acquisition Contract!

This post would appear to be a Halloween prank, but it isn't. On October 10, 2019, the U.S. Army Combat Capabilities Development Command signed a contract [or in government parlance, a Cooperative Research and Development Agreement (CRADA)] with To the Stars Academy of Arts and Science, Inc. for the acquisition of the latter's ET(?) technology. The entire contract is available here , but I'll save you from the content that isn't worth your time. But first some history. Once there was a punk rock group called Blink 182 , founded by Tom DeLonge. Tom eventually became more enthused about UFOs than rock music and decided to seriously study unexplained aerial phenomena (UAP). He claims to have formed relationships with top government officials to eventually disclose to the public what's behind UAP. In the meantime, Tom formed a public corporation, To the Stars Academy (TSA), to be a "revolutionary collaboration between academia, industry and pop culture to a...

The BUSKLAW January Newsletter: Catching Typographical Errors in Contracts

“Career Path” is an overused term to describe how we should conduct our professional lives to reach our full potential. In my experience, most self-help books on this subject assume that we have more control over our lives than we actually do. The old adage, “Man proposes, God disposes,” is not evident in these books. And yet there are ways for contracts lawyers to reach their full potential - how about by catching those pesky typographical errors ("typos")? Is there anything more rewarding to a contracts lawyer than catching a typographical error? Of course not. I once did a long and complicated real estate license agreement, only to have my client point out the fact that on page 39, section 1, paragraph A, subsection (i), clause (z) of the contract I drafted, the word “thee” should be “the.” I can’t tell you enough about the warm fuzzy feeling that this observation created in the depths of my soul! At best, typographical errors are embarrassing and have only...

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