Archive for the ‘IT Contracts’ Category
Wednesday, April 24th, 2013
Where a seller of a business gives a ‘warranty’ that certain facts are true (e.g. that accounts are accurate), can the buyer bring a claim for misrepresentation if they’re not?
In a recent case the court found a problem with the word ‘warranty’ when bringing a claim for misrepresentation. The court felt the need to find ‘something more’ in order to turn the warranty into a representation (which would have allowed a claim above the liability cap).
Had the drafting been different (for instance stating that the seller ‘warrants and represents’) then the conclusion might also have been different.
So next time you’re offered a warranty that statements are true – why not also seek a representation, to give yourself a potential alternative claim (an example of a small drafting change that could make a real difference).
Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.
Richard Nicholas
0121 237 3992
richard.nicholas@brownejacobson.com
Tags: case law, misrepresentation claim, richard nicholas, Sycamore Bidco Ltd v Breslin & Anor
Posted in Commercial contracts, In-house Lawyers, IT Contracts | No Comments »
Tuesday, March 26th, 2013
The Intellectual Property Office (IPO) is encouraging SMEs (small and medium enterprises) to use its recently introduced mediation service to solve disputes between rights holders and others. However, a rights owner should first consult the IPO website as the service cannot deal with all disputes, such as those concerning:
- distinctiveness of a trade mark
- trade mark opposition and invalidation proceedings on absolute grounds
- IPO decisions like refusal of a patent application.
Experienced mediation providers such as CEDR (Centre for Effective Dispute Resolution) and In Place of Strife are already frequently used and the Law Society and Bar Council also provide information on their qualified mediator members.
The scheme aims to reduce SMEs’ costs of dispute resolution, but common issues such as IP right validity or the need for an injunction may limit this. Rights owners will need to carefully consider its suitability and what outcome they want from any dispute resolution procedure. The IPO scheme will have value, but may not provide an alternative to other mediation services or the courts.
Posted by Peter Ellis, who specialises in commercial litigation or dispute resolution; intellectual property disputes e.g. trade marks, copyright, designs issues; breach of contract and claims through interruptions to trade.
Peter Ellis
0115 976 6269
pellis@brownejacobson.com
Tags: Browne Jacobson LLP, CEDR, dispute resolution, mediation, Peter Ellis, SME, UK Intellectual Property Office
Posted in Advertising & Marketing, Brands, Commercial dispute resolution, Commercial Litigation, Data Protection, In-house Lawyers, Intellectual Property, IT Contracts, Licensing | No Comments »
Thursday, January 3rd, 2013
Ofcom intends to amend the rules applicable to communications providers’ (for mobile, landline and broadband services) fixed term contracts with consumers.
Following a detailed review, Ofcom’s preferred proposal is to amend the existing rules (which many consider biased against the consumer), so that consumers are able to withdraw from a contract without penalty (e.g an ‘early termination charge’-currently common) following any increase in price for services (including changes to the level of service provided which effectively constitutes a price increase). Ofcom is however considering various other proposals.
From today until 14 March 2013 interested parties can submit responses to these proposals. Ofcom’s proposal could have a significant impact on communications providers and in particular the UK’s major mobile phone companies, who have raised prices in recent months. This could lead to a loss in revenue and/or customers during what is a challenging and competitive time for the industry.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
Tags: Browne Jacobson LLP, Commercial contracts, Communication providers, Consumer contracts, Fixed term contracts, IT Contracts, Laura Mackenzie, mobile phone technology, ofcom
Posted in Commercial contracts, Consumer contracts, IT Contracts, Technology | No Comments »
Monday, November 12th, 2012
Mastercard’s launch of a new interactive “DisplayCard” with LCD screen and touch sensitive buttons allows users to generate a one-time password, simplifying the authentication process for on-line purchases and streamlining the customer purchasing experience without any apparent compromise of data security.
Mastercard claims that the DisplayCard could allow card users to check their balances, reward points and recent transactions any time, any place, any where. Clearly good news for customers fearing the embarrassment of card declines and also for retailers as customers know their available spend at the time of viewing goods on-line and in-store.
What is not clear is how such sensitive data can be made available without presenting huge data security issues. If data is “pushed” to users then a concern must be its interception over unsecured WiFi network, whereas if data is “pulled” to cards by users then additional processes will be needed.
Technology provides us with many opportunities to innovate but left unchecked we risk sacrificing security for convenience.
Posted by Paula Dumbill, who specialises in non-contentious intellectual property, particularly trade marks and copyright, advising in particular on IP exploitation and collaboration agreements and trade mark portfolio management.
Paula Dumbill
0115 976 6059
pdumbill@brownejacobson.com
Tags: Browne Jacobson, Credit card, E-Commerce, mastercard, Paula Dumbill
Posted in Data Protection, IT Contracts, Retail, Technology | No Comments »
Wednesday, September 19th, 2012
The Government has issued new guidance on Cyber Risk Management for the most senior level employees in UK companies.
The guidance follows a recently published Cabinet Office report on the Cost of Cyber Crime which addresses the breath of the cyber crime issue. It estimates that cyber-attacks can cost the UK economy £27 billion a year of which £21 billion relates to businesses.
The internet has revolutionised the way we live, work and spend our hard-earned cash. The world wide web offers ease and accessibility to various resources and information; unfortunately cyber criminals are also benefiting from this accessibility. Many retailers face the predicament of how to prevent cyberspace compromise effectively without deterring customers with additional security measures.
Although a welcome move, this review is long overdue. Retailers will have to consider whether their current security systems are sufficient and undertake a review of security systems regularly.
Posted by Helena Wootton, who specialises in commercial contracts, data protection, financial
services, outsourcing agreements, services, supply collaboration, distribution & agency contracts, e-commerce and consumer law.
Helena Wootton
0115 976 6108
helena.wootton@brownejacobson.com
Tags: cyber crime, data security, ecommerce, Helena Wootton
Posted in Advertising & Marketing, Commercial contracts, Data Protection, IT Contracts, Technology | No Comments »
Friday, August 17th, 2012
The Information Commissioner’s Office (ICO) has issued a practical guide to IT security for small and medium sized businesses.
The punchy guide focuses on the need for businesses to keep their IT systems and personal data held within them secure, and proposes a two pronged approach:
- undertaking an initial assessment of the risk to personal data held within the business to determine what security measures are required
- implementing a number of different tools and techniques to give a ‘layered approach’ to security including implementing measures to ensure physical security, using anti-virus and anti-malware software and properly maintaining systems, implementing intrusion defence, restricting access to systems, ensuring employee IT security awareness, well written security policies, applying equal security measures to personal data on movable devices and auditing any outsourced IT supply
The guide is a useful starting point for businesses who have not yet developed a comprehensive IT security strategy.
Posted by Sara McNeill, who specialises in non-contentious intellectual property matters, including licensing, franchise, collaboration and development arrangements and IP audits and strategy; experienced in drafting and advising on commercial agreements.
Sara McNeill
0121 237 3930
smcneill@brownejacobson.com
Tags: information commissioners office, IT security, Sara McNeil
Posted in Fashion & Luxury Retail, IT Contracts, Retail, Technology | No Comments »
Friday, August 10th, 2012
In a case which considered the provisions of the Unfair Contract Terms Act 1977 a project manager, who was sued for losses arising on a delayed project has been prevented from relying on a liability cap, due to the substantial insurance cover that was also provided for in the contract.
The liability cap imposed was less than the contract price of £200,000; yet the contract also required the project manager to take out professional indemnity insurance with a limit of £10 million. As a professional consultant inevitably passes on the cost of its insurance cover to the client in assessing its fees, and as no explanation was provided for the discrepancy between the limitation of liability and the insurance cover available, the limit was found to be unreasonable.
This decision should be borne in mind when seeking to challenge the validity of a cap on liability of another party, or when drafting onerous caps on liability when your client also holds substantial insurance cover.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
Tags: contract law, liability cap, project manager, ryan harrision
Posted in Commercial contracts, In-house Lawyers, IT Contracts, Outsourcing, Retail, Technology | No Comments »
Wednesday, August 1st, 2012
Can you rely on Safe Harbor Certificates when transferring personal data to the USA? Not according to a recent EU opinion.
Companies planning to transfer personal data to the USA (e.g. when switching to a US based cloud computing provider) need to make sure they don’t breach their obligation not to transfer personal data outside the EEA without an adequate level of data protection.
Many US based cloud providers will claim that they can demonstrate this by holding “Safe Harbor” certification.
A recent Article 29 Working Party Opinion raises concerns for those relying on this, making the point that companies should have adequate contractual protection in place as well as checking that the certification is both current and complied with.
This is sensible given the USA’s dominance of the sector, but will often place additional burden on buyers of cloud computing services.
We recently recorded some training on issues to look out for when moving to cloud computing, which you’re welcome to view here.
Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.
Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
Tags: cloud computing, international data protection, richard nicholas, safe harbor certification, working party opinions
Posted in Commercial contracts, Data Protection, In-house Lawyers, IT Contracts | No Comments »
Wednesday, August 1st, 2012
Call me a pedant if you will but when someone says they’re “buying” a software licence, its always sounded wrong to me – if only because of the distinction between “buying” and “licensing”.
Yet as far as the ECJ is concerned a perpetual licence of software should be treated as equivalent to a “sale” for the purposes of legislation concerning the exhaustion of rights – meaning that a licensor may not prevent a licensee from licensing to others in the EU and clauses in licences that seek to prevent assignment or sublicensing will not be effective, provided the licensee gives up its own rights.
This decision potentially creates a new market for “secondhand” software and, I suspect, will challenge “authorised” resellers – particularly if others join Usedsoft in supplying discounted licences of existing software. It may also accelerate the move towards cloud computing, as providers move towards a subscription, rather than a traditional licensing model, to prevent the onwards distribution of licences.
Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.
Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
Tags: E-Commerce, licensing, richard nicholas, Software
Posted in Advertising & Marketing, Brands, Commercial contracts, IT Contracts, Licensing | No Comments »
Friday, June 1st, 2012
Revised guidance from the Information Commissioners Office (ICO) suggests that implied consent of website users to cookie use may be reasonable in the context of storage of, or access to, information, at least where non-sensitive personal data is concerned, but only where it is ‘specific and informed’ and there is some action on the part of the website user from which consent can be inferred.
Whilst this news, which is a change from the guidance previously published by the ICO, will be welcomed by many UK website operators, this approach differs from the majority of data protection regulators in other EU member states. Therefore placing cookies on the equipment of non-UK EU citizens may still cause operators difficulty.
UK operators will be watching carefully to see whether other member states adopt the same position as the ICO, or whether they may risk non-UK regulators seeking to enforce differing national laws against them.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
Tags: compliance, cookies, ICO, Laura Mackenzie, Technology
Posted in Fashion & Luxury Retail, IT Contracts, Retail, Technology | No Comments »
Wednesday, May 16th, 2012
One of the bills introduced in the recent Queens speech of interest to the IT/IP sector is the Draft Communications Data Bill.
This Bill will ensure that relevant authorities can monitor communications data. The government has proposed this measure to meet the need of enforcement and intelligence agencies to access data to protect the public. This Bill is subject to much criticism and scrutiny due to its potential scope and privacy issues. Many are concerned at how the ‘communications data’ will be separated from the content of the communication without breaching privacy. ISPs and telecommunications companies will have to keep this data for 12 months, how this will be intercepted and stored remains a key issue.
It will also establish a new framework and safeguards to accompany the way the data is obtained, it remains to be seen how the Bill will be drafted to ensure adequate protection. Further detail is yet to be released and detailed debate in Parliament will no doubt follow.
Laura Richards
0115 908 4886
lrichards@brownejacobson.com
Tags: Communications Data Bill, government, Laura Richards, parliament, Queen's speech
Posted in Commercial contracts, Commercial Litigation, Intellectual Property, IT Contracts, Retail, Technology | No Comments »
Wednesday, May 16th, 2012
A report by the Open Rights Group has stated that filters on mobile phones are incorrectly preventing access to some innocent websites, which could have wide-ranging impact. The tools have been designed to filter out pornography to prevent children viewing inappropriate content on their mobile phones. Many phones come with this feature as a factory standard and requiring proof of age, for example, before filters can be removed.
The government had been approached to consider placing blocks on all broadband services provided through a fixed line. However, there have been calls to reject plans such as obligatory filters and instead have optional filters which can be activated by parents to prevent any issues regarding access to information.
The UK government is to consult with ISPs about automatic filtering as part of its discussion of the Online Safety Bill currently having its first reading in the House of Lords.
Laura Richards
0115 908 4886
lrichards@brownejacobson.com
Tags: House of Lords, Laura Richards, mobile phone filters, online safety bill, open rights group, websites
Posted in Commercial contracts, Commercial Litigation, Intellectual Property, IT Contracts, Retail, Technology | No Comments »
Tuesday, April 3rd, 2012
With the impending deadline of 25 May 2012 for compliance with the regulations on cookie use looming large for many businesses, the International Chamber of Commerce (ICC) UK has this week published some helpful guidance for those who are still unclear on how they ensure their use of cookies on websites will not fall foul of the Information Commissioner’s Office (ICO).
The guidance, which follows 2 previous ICO guidance publications, provides clear explanations and descriptions of the method of categorisation of cookies and gives examples of how consent to cookie use might be obtained.
Businesses should take heed of this guidance and conduct a ‘cookie audit’ of their websites; whilst the ICO are unlikely to take immediate and aggressive enforcement action, in reality the true risk of non-compliance is the reputational damage that is incurred if your business is seen to fail at obtaining site user’s consent to the collection of information about them.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
Tags: cookies, ICO, international chamber of commerce
Posted in IT Contracts, Retail, Technology | No Comments »
Monday, March 19th, 2012
As Cameron and Obama were recently discussing the current extradition laws between the 2 countries, Home Secretary Theresa May approved the extradition of Richard O’Dwyer to the US, after a UK court had earlier decided he could be extradited for copyright infringement for hosting sites that provided links to unauthorised copyright material on other sites, which could then be download.
Mr O’Dwyer argues he had not downloaded the infringing material but merely directed searchers to other sites.
The two countries’ copyright infringement laws differ; Mr O’Dwyer is facing a maximum penalty of 5 years imprisonment in the US, compared with 2 years in the UK.
This decision will certainly concern UK infringers; although whether this will set a precedent will perhaps depend on Cameron and Obama’s recent discussions. Either way, we can be sure that Mr O’Dwyer’s case will only add to the current debate on whether UK copyright law can stand up to technological advances.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
Tags: Barack Obama, copyright, David Cameron, extradited, imprisonment, Richard O'Dwyer, web hosting
Posted in Commercial contracts, Data Protection, IT Contracts | No Comments »
Monday, January 30th, 2012
At the World Economic Forum recently Neelie Kroes announced the setting up of the “Cloud Partnership”.
With it she announced a policy to increase the uptake of cloud computing throughout Europe through the creation of common standards and regulation, together with an initial investment of Euro 10 Million from the European Commission to make it happen.
Personally I’m always a little concerned by announcements to boost the economy through greater regulation. If however the policy results in greater uptake of cloud computing by the public sector (whether through true “public” clouds or through the greater use of “private” clouds), as common standards are agreed and accepted then there is a real chance of (much-needed) cost savings, which must be welcome.
Let’s hope an agreement on standards can be reached more quickly than agreement on the debt crisis, even if it does involve putting up with unnecessary repeated references by politicians to becoming “not just Cloud friendly but Cloud active”.
Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.
Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
Tags: cloud computing, Commercial contracts, European Commission, government, IT Contracts, neelie kroes, outsourcing, Public Sector, world economic forum
Posted in Commercial contracts, Consumer contracts, Government bodies, IT Contracts, Outsourcing, Public Sector | No Comments »
Monday, November 28th, 2011
Francis Maude has launched the UK Government’s Cyber Security Policy – £650 Million to be spent over four years for a National Cyber Security Programme (NCSP), the establishment of a Cyber Crime Unit (crime) and a Joint Cyber Unit (military defence).
So what will these new cyber-men and cyber-women be doing?
Looking at risks in cyberspace for one thing – from terrorists, hackers, spies and criminals making the 20,000 malicious emails a month sent to government networks, as well as sharing information on and combating those risks – but also developing common standards for cyber security and a voluntary code of practice.
For IT security professionals it would be worth noting the potential opportunity to build a wider acceptance of their technology and to legitimately work with competitors. For the rest of us the rewards lie in the result – better protection online. Let’s hope for a successful collaboration.
Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.
Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
Tags: cyber crime unit, cyber security policy, Francais Maude, IT security professionals, national cyber security programme
Posted in IT Contracts | No Comments »
Monday, September 19th, 2011
With its recent acquisition of 1,023 patents from IBM, Google now owns approximately 20,000 patents.
Previously, Google has lagged behind its competitors in developing a substantial patent portfolio and, as a result, has been seen in some quarters as vulnerable to patent infringement litigation. However, following its acquisition of Motorola Mobility in August, and the recent acquisition of patents from IBM, Google has put itself in a position where it could respond to infringement threats with its own ‘cold war’-like threat of mutually assured destruction. Alternatively, Google may be plotting its own infringement claim offensive.
Patents are increasingly the weapon of choice for technology companies looking to maintain a competitive edge. A potentially beneficial result of this is that the need to avoid a competitor’s patents may sometimes promote innovation and create new patentable technologies.
In the meantime, no comfort is given to smaller companies, which may struggle to afford the costs of ensuring that their innovative ideas do not infringe the patent portfolios of the technology “super-powers”.
Posted by Ryan Harrison, who specialises in intellectual property agreements and disputes, licensing, commercial contracts, and commercial and intellectual property issues arising from M & As and disposals.
Ryan Harrison
0121 237 3950
rharrison@brownejacobson.com
Tags: competitive edge, Google, IBM, infirngement claim, infringement threat, innovation, Motorola Mobility, patent infringement, patent portfolio, patentable technologies, Patents
Posted in Competition, Intellectual Property, IT Contracts, Licensing | No Comments »
Wednesday, May 11th, 2011
Unlike other jurisdictions, courts in the UK have not normally made a distinction between gross negligence and negligence of any other kind (para 54).
In a recent case however where a set of terms and conditions excluded liability for negligence “other than gross negligence or wilful default”, the court held that a distinction does exist and that an (otherwise negligent) failure to exercise proper skill and care might not amount to gross negligence unless there was also (for example) an “indifference to an obvious risk”.
It’s a distinction that may well be seized upon by those drafting contracts for suppliers – being grossly negligent suggests a greater lack of care than mere negligence, and a greater hurdle to be overcome in the event of a claim. From a customer’s perspective it is a distinction worth looking out for if you want to ensure you have a remedy for mere (trivial) negligence on the part of those providing financial or other services and want to ensure you receive the highest standards of care.
Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.
Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
Tags: Commercial contracts, contract law, gross negligence, negligence
Posted in Commercial contracts, In-house Lawyers, IT Contracts, Outsourcing | No Comments »
Thursday, April 28th, 2011
It’s always useful, when advising on issues such as cloud computing, to hear the views of CIOs, so I was delighted to be invited by Post Magazine to be part of a round table discussion on the subject – looking at cloud computing in the insurance sector.
To me, the benefits of cloud computing make a switch nearly inevitable, although there are some significant and justifiable fears about both data security and availability – particularly in the light of recent events, making the choice of a private cloud the more palatable option for critical business functions.
There are practical restraints on use of cloud computing in the insurance sector but the consensus was that these could be overcome. Indeed, several of those present were actively looking at a switch to cloud computing in the near future.
With the right contractual assurances and safeguards in place it seems cloud computing is coming – even to the (traditionally risk-averse) insurance sector.
Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.
Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
Tags: cloud computing, Data Protection, data security, insurance cio, IT Contracts, post magazine, richard nicholas
Posted in Commercial contracts, Data Protection, In-house Lawyers, Insurance, Insurance - Advisory, IT Contracts, Outsourcing | No Comments »
Tuesday, April 19th, 2011
Whether it’s an angry ex-colleague, ex-employee or ex-director – if your business has valuable confidential information that it needs to protect, these people will inevitably know about it.
When that person leaves – how do you stop them from disclosing information about your product or company to other suppliers?
We looked at practical legal steps (restrictive covenants, contractual provisions) and technical/IT steps that you can use to prevent the loss of IP, data and know-how in a recent workshop and picked up some useful industry perspectives from those who attended.
If all else fails then the court will intervene, occasionally with a fairly stringent perpetual injunction, prohibiting that person from (ever!) disclosing that information, as in a recent case involving a golf trolley device .
To get such a prescriptive remedy however you’ll need to act fast, demonstrate a real threat and that other remedies will not suffice. Getting the right IP and contractual protection in place before you reach a dispute can significantly improve your chances.
Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.
Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
Tags: Commercial contracts, confidential infomation, ip
Posted in Commercial contracts, In-house Lawyers, Intellectual Property, IT Contracts, Outsourcing | No Comments »
