Waterfront’s team of IT lawyers were hard at work last Wednesday as they presented the Winter IT Seminar to a crowd of people at the Prince’s Foundation in trendy Shoreditch. Thank you to all those who came along and to our friends from aQovia for participating. For those who could not make it, please see below a summary of what was discussed. 1) Cloud based Services Carole Hailey, Head of Technology and Commercial Law, started the evening with her presentation on “Offering a Cloud Based Service”. She explained that the advantages of this service include speedy deployment, lower costs and easier customisation. Carole also highlighted the key risk of using a Cloud based service; namely, that by using a third party cloud provider to enable you to provide a Cloud based service, you are ultimately outsourcing/sub-contracting a critical part of your offering to a third party supplier, putting you in the middle of a contractual chain. #stuckinthemiddle A practical, but perhaps expensive, suggestion came a member of the audience who mentioned a way of minimising this risk would be to have two or more Cloud based services in place, so if one failed your business had a back up. Many Cloud based service providers will not guarantee service levels or, in some cases, even any assurance that their services, pricing or any other aspect of their offering will remain the same over time. This means that you could find yourself unable to provide your service to your customers or, at least, not for the price you’ve agreed with them. Carole concluded by saying that Cloud based services are typically a commodity service. If that is how you would describe your software/service then fine, if not… beware of being caught in the middle – it’s a risky and potentially expensive place to be! 2) Free/Open Source Software (FOSS) Jean-Marc Pettigrew, Solicitor at Waterfront discussed Free/Open Source Software – kicking off by explaining that there are benefits for both Developers and Users in using it. Key benefits for Developers include freeing up time to focus on developing new products and time to market will be accelerated. For the Users there is greater security, lower cost, and protection from vendor collapse/product discontinuation. There are many different FOSS Licences out there and Jean-Marc explained the differences. “Permissive Licences” (which include the MIT licence) usually grant permission, free of charge, “to deal in the [licenced] software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the software, and to permit persons to whom the software is furnished to do so”. In contrast, Non-Permissive Licences allow you to modify your copy or copies of the software however, additional terms are attached to such use. The most common of these is that the software you create must be licensed under the same FOSS terms as the software you used to create it. Jean-Marc suggested that you keep Non-Permissive Licensed software at arms length as any combination with your own developed software risks that software being required to be licensed under the terms of the Non Permissive licence, which could mean it being given away free of charge. Jean-Marc’s top tip to minimise the risks of the consequences of Non-Permissive Licences was, wherever possible, when you are developing a software product, to avoid software provided on that basis. Instead, use software granted under Permissive Licences or other commercial licences. 3) IT Case Law Mike Clarke, a Solicitor at Waterfront provided a round-up of the lessons learned from recent IT case law and what it means for your business. De Beers v AtoS demonstrated how software development contracts can go horribly wrong. Lessons learned here include: to take care when scoping project requirements and defining the specification or project plan; consider flexible pricing models where appropriate; be clear on the change control process and suspend services with care! London Borough of Southwark v IMB taught us to be careful when wording warranties; ensure clear links to requirements; suppliers should differentiate third party products where appropriate and purchasers should conduct a thorough evaluation of the product to confirm it is fit for purpose. Mike explained that the message in Porton Capital Technology Funds v 3M was that even where a contractual right of consent or approval must be exercised ‘reasonably’, this may not provide much comfort for the party seeking the consent or approval. The best approach: be clear and don’t rely on the other side exercising discretion ‘reasonably’ from your perspective! And finally, Jet2 v Blackpool Airport looked at the legal interpretation of “best” and “reasonable” endeavors… lesson learned? Be clear and if possible, identify specific obligations! 4) Q & A:Tales from the Cloud Face In our Q & A session, Muhammad Malik of aQovia spoke to Alison Berryman, Partner about his company’s role as a cloud solutions technology/ business transformation provider. He provided a brief background of aQovia’s business – they enable business transformation via app development, infrastructure change and integration. He then went on to discuss how the cloud assists aQovia in this goal and how they deal with the many complex outsourcing and sub-contract arrangements required to make some cloud systems work. All in all it was an interesting and enjoyable evening and Waterfront would like to thank everyone who came along! For more information on any of the matters discussed at the Seminar, contact the Waterfront team on 020 7234 0200 or e-mail at info@waterfront.law
Although most users of your website will not read your terms, this is an important part of your business. Having to argue in court is expensive, so a little investment to avert the risk is a pragmatic approach. This article highlights some of the most common points which your terms should cover so that the risks explained below do not crystallise.
If your business involves sending personal data outside the UK and EEA, you may be aware of the need for a transfer risk assessment (TRA) to demonstrate that you have properly considered and mitigated any associated risks.
When it comes to commercial negotiations, they often don’t turn out the way you had hoped and then there is no going back. Instead of struggling on your own, losing a lot of management time and still not being sure you have got the best deal, let us negotiate for you.
Get it in writing – Commercial Contracts