Archive for the ‘IT Contracts’ Category
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
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Tags: cloud computing, Commercial contracts, European Commission, government bodies, 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
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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
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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
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Tags: Commercial contracts, contracts, gross negligence, negligence
Posted in Commercial contracts, In-house Lawyers, IT Contracts, Outsourcing | 1 Comment »
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
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Tags: cloud computing, Data Protection, data security, insurance cio, insurance sector, 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
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Tags: Commercial contracts, confidential infomation, ip
Posted in Commercial contracts, In-house Lawyers, Intellectual Property, IT Contracts, Outsourcing | No Comments »
Friday, April 15th, 2011
… or at least, they don’t do everything you might want them to.
A recent Court of Appeal decision took a similar line to the first instance ruling in BSkyB v EDS in reaching the conclusion that an entire agreement clause that said that the agreement constituted:
“the entire agreement between the parties” and would “supersede any previous promises, agreements, representations, undertakings or implications” made prior to the contract was not enough to exclude liability for misrepresentations made outside the contract terms, although it will prevent collateral warranties arising.
If you want to exclude liability for misrepresentation (as those who attend our regular in-house lawyers forums will be all too aware) you need to have either an explicit exclusion of liability for misrepresentation or, better still a statement that neither party has relied upon statements not included in the contract.
Suppliers who want to exclude comments made by salespeople in negotiations need to check their contracts. For those seeking to bring a claim for misrepresentation this judgement, like BSkyB v EDS, breaks down an important obstacle to bringing a claim.
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
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Tags: BSkyB v EDS, Commercial contracts, entire agreement clauses, misrepresentations
Posted in Commercial contracts, In-house Lawyers, IT Contracts, Outsourcing | No Comments »
Wednesday, April 6th, 2011
The UK Government recently released its ICT Strategy following on from manifesto commitments made prior to the election.
It makes for interesting reading. The proposals for the sharing of IT infrastructure is one that struck a particular chord as it’s one that we recently advised on and seems a common sense approach to making ICT more efficient.
Other proposals worth picking up are the preference for open source software where possible, to make greater use of cloud computing, a presumption against large projects and an environment for SMEs in particular to be able to access contracts and to test solutions.
Inevitably, given the scope of the strategy, it is short on detail on any one area. Some areas however (cloud computing, use of open source solutions, use of many providers) will need careful management if government-held data about all of us is not to be kept securely. Data security is likely to be key to ensuring that these proposals turn out as planned.
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
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Tags: cloud computing, data, data security, ICT strategy
Posted in Data Protection, IT Contracts, Local Authorities, Outsourcing, Projects & partnerships, Public Sector | 3 Comments »
Tuesday, March 1st, 2011
I was always taught, that a company using intellectual property must necessarily either:
A) Own it; B) Be licensing it (from a third party); or C) Be infringing (a third party’s rights)
A case in the Patents County Court last month however has looked at the question – “if you are using copyright material under licence, but fail to pay the ongoing licence fee – are you therefore infringing the owner’s rights?” The answer was no – it is not necessarily an infringement. Even though you are in breach of the licence, so may be in breach of contract, it does not necessarily follow that you are infringing copyright, or that the licensor has a right to terminate the licence.
From a pure contract law perspective, this isn’t that surprising but is a reminder that if you don’t put express wording in a contract, the courts will not imply it for you (so it is worth getting the wording in at the start).
When and how contracts can be terminated for breach is an issue we’ll be covering at the next in house lawyers forums on 16th, 29th and 31st March. Please sign up here if you’d be interested in attending.
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
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Tags: copyright, Intellectual Property, IT Contracts
Posted in In-house Lawyers, Intellectual Property, IT Contracts | No Comments »
Thursday, August 12th, 2010
What does ‘on completion of this agreement’ mean?
That’s the question that the high court had to decide, faced with a broadband business who had erected electronic communications equipment on the rooftops of certain council properties, including the Council’s own City Hall building.
The business was relying on a provision of a binding memorandum of understanding that allowed it access to council rooftops for this purpose for a period of 15 years, such access to be granted…’on completion of this agreement’. Was the licence enforcable?
Not according to Mr Justice Roth in City of Westminster v Urban Wimax who took into account the fact that a pilot scheme was clearly anticipated under the agreement and that the implicit intention was that the licence only be effective if this pilot scheme had proved sucessful. Urban Wimax were seeking to take advantage of the poor drafting of the memorandum of understanding to suggest that the licence took effect from execution of the agreement.
The council were perhaps lucky here not to have been lumbered with a licence that took effect too early and by the common sense approach of the court, but it is a warning where a pilot scheme is planned for a project (which often include the scantest legal wording), to check the wording of any licences granted, so as not to be embarrassed in court.
Posted by Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
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Tags: Broadband, Commercial contracts, IT Contracts
Posted in Commercial contracts, IT Contracts | No Comments »
Friday, March 19th, 2010
The campaigning has started by all the major parties, and anything said at this stage before an election is to be taken with a pinch of salt, but there are likely to be a fair few people whose attention might have been caught by the Conservative Technology Manifesto not least, anyone involved in public sector IT projects (as supplier or customer) any vendors of open source software, makers of smart meters and/or with an interest in data protection.
The document is a short one and, as with any pre-election material, has some positive suggestions in generic terms – an end to wasteful IT projects, a “right to data” policy and greater openness in most areas of public sector life, including publishing online all spending over £500 by local governments.
What might surprise some IT companies that contract with the public sector at the moment however, whatever their political persuasion, is the suggestion that contracts with local authorities that exceed certain thresholds (£500 for local authorities, £25,000 for central government and Quangos) will also be published “in full” – including in particular all performance indicators, break clauses and penalty measures. It’s a brave step and one that might highlight contracts that are overly favourable to suppliers and where the public sector is being unfairly penalised.
On the other hand – from the supplier’s perspective this raises issues of its own – “if you (large IT supplier) can provide those services and meet those service levels for that cost for the public sector, then why not for me, your prospective private sector customer?” There is a risk that too much transparency could mean public sector customers no longer get a better deal than the market.
And what about contracts provided by named “Key personnel” – will these individuals earn a celebrity of their own through contracts published online, or will data protection concerns override requirements in future legislation? Certainly the 35,000 most senior civil servants whose salaries are also required to be published online may have something to say if they can be identified from this information.
However this manifesto plays out, if, as currently predicted the conservatives are likely to be the next government, there are likely to be a few lively debates with the Office of the Information Commissioner before this manifesto becomes law.
Posted by Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
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Tags: Data Protection, IT, IT Contracts, Public Sector
Posted in Data Protection, IT Contracts, Public Sector | 1 Comment »
Thursday, March 11th, 2010
It’s a query often raised by clients. A recent case has highlighted that it might well be more than previously thought.
Traditionally a party suing for breach of contract can expect to recover losses that result directly from a breach, but not losses that are “indirect” – as these are considered too remote or unforseeable. Typically a supplier will exclude indirect losses and will also exclude losses such as loss of profits, loss of revenue and similar losses. In a recent case however there was an interesting decision as to what a supplier could claim, even where indirect losses and loss of revenue is excluded. This included:
- Increased payments to suppliers, as a result of using the faulty software
- Additional costs of borrowing, made necessary by the increased payments to suppliers;
- The cost of chasing debts that were not due (but which the faulty software suggested were due);
- The cost of ex-gratia payments made to customers to compensate for poor service – (i.e. payments that the customer was not obliged to, but chose to pay to protect its reputation); and
- Even the cost of stationery used to write to its customers to explain the problems caused by the faulty software
None were excluded by the typical “loss of profits” exclusion, nor by excluding indirect losses. For software suppliers it’s a potential wake up call that errors and delays in projects can lead to eye-watering amounts of damages – something that it is worth taking the time to protect against when working through the small print of their agreements.
Posted by Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
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Tags: Commercial contracts, IT
Posted in Commercial contracts, IT Contracts | No Comments »
Friday, February 26th, 2010
Here’s an idea for a game: Move a marble-like ball around a computer screen by continually placing train tracks in front of it
Here’s another one: Having developed the above programme, move the rights in it from you to your company and then seek to move it back again using the courts and the law of copyright infringement.
The first idea might seem a decent one. The second idea is a truly terrible and expensive one and one that developers should avoid at all costs as this case shows.
A freelance developer developed his game concept (called either Tracktrix, or later Train Trax) before he joined Circle Studios as a games developer. Without telling others in the company that he had developed this concept himself he passed on this concept and encouraged Circle Studios to exploit it.
Sadly this did not lead to commercial success and Circle Studios went into administration. Afterwards the developer sought to take back the concept and to do this he claimed, amongst other things – copyright infringement, alleging that Circle Studios had copied the game from him as a freelance developer. After all he should know…he (as an employee of Circle) had copied it!
Unsurprisingly perhaps the games developer was unsuccessful. As the developer had not disclosed where the idea came from, there was no reason for the employer to believe that the concept was not created in the course of his employment. Any infringement was caused by the developer. The copyright claim failed, as did a related breach of confidence claim, with the judge lamenting that the action reached the court in the first place.
The lesson – be clear where ideas come from as an employee and if you developed something yourself that you later want to use in your employment, discuss assignment or a licence with your employer. If it’s too late to do this, avoid litigation if you can, as taking that track without advice is likely to mean losing your claim, as well as your marbles.
Posted by Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
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Tags: copyright, Intellectual Property, IT
Posted in Intellectual Property, IT Contracts | No Comments »
Friday, January 29th, 2010
If they’re made dishonestly they might…
In particular, if you’re a provider of outsourcing services and make a statement that you:
- can deliver a project within certain prescribed timescales and
- are making this statement having carried out a proper analysis of the work involved
Then, if your customer believes you, you may well find that your contractual limits on liability will not protect you, as one supplier found to their cost in the long awaited decision between BSkyB and EDS this month.
It was held by the Judge that the statements made by the supplier were not only incorrect but were also dishonest, since the person making them knew them to be wrong.
This allowed the customer to claim for Fraudulent Misrepresentation (under the Misrepresentation Act 1967). Since liability for Fraudulent Misrepresentation cannot be limited, when the project went over-budget and missed the deadline, the supplier’s £30 Million cap on liability was ineffective.
Liability has yet to be decided (and the case may be appealed) but the misleading statements made by the supplier may well mean that it now faces liability of £200 Million or more.
The lesson for suppliers – if you’re bidding on a project be careful what claims you make about your ability to deliver and never claim to have assessed the risk unless you truly have. Given the recent history of IT projects delivered late and over budget in the public sector I suspect there will be a number of customers scanning emails in the light of this case to see what optimistic IT providers might have promised.
Posted by Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
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Tags: fraudulent misrepresentation, IT Contracts, liability, outsourcing
Posted in Commercial contracts, IT Contracts, Manufacturing, Outsourcing | 1 Comment »
