TECHNOLOGY, OUTSOURCING, AND COMMERCIAL TRANSACTIONS
NEWS FOR LAWYERS AND SOURCING PROFESSIONALS

Please join us for an in-depth discussion on how to successfully renegotiate your existing services contracts with technology, outsourcing, and commercial transactions partner Vito Petretti. Topics will include:

  • A general look at the renegotiation process
  • Business issues and drivers involved in renegotiation
  • How to conduct a renegotiation
  • Contract terms that may impact renegotiation

We hope you’ll join us on Wednesday, April 8, 2020, from 12:00–1:00 pm ET.

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Please join us in our Philadelphia office for our annual Technology, Outsourcing & Commercial Contracts Networking Roundtable. The roundtable will feature an in-depth discussion of hot topics relating to the increased connectivity of our businesses, including privacy concerns, data rights, cloud solutions, and contracting for the use of connected devices. Stay connected with us at the networking reception following the discussions.

We hope you’ll join us in Philadelphia on Thursday, April 16, 2020, from 3:30–5:30 pm ET.

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In a long-term outsourcing, software as a service (SaaS), or other services agreement, the customer will typically push for a termination right relating to the service provider’s breach, and perhaps for an insolvency event or change in control of the service provider. However, the customer should also consider including the right to terminate for its convenience (without cause), which could cover any of the following situations:

  • The customer is not satisfied with the service provider’s performance under the contract even though the provider is meeting its service level and other performance requirements under the contract.
  • Many alleged breaches by the service provider are initially “black and white” in the view of the customer, but they turn “gray” when the service provider pushes back and alleges nonperformance, nonresponsiveness, lack of cooperation, and the like on the part of the customer. Adding the customer’s right to termination for convenience can avoid the potential dispute over whether the customer has the right to terminate on other grounds.

Morgan Lewis has recently issued several LawFlashes on the 2019 Novel Coronavirus (COVID-19) outbreak, providing a number of resources for businesses across the globe dealing with various compliance challenges and unanswered questions. In this rapidly changing situation, for example, employers must carefully balance concerns related to employee and public safety with protecting employees from unnecessary medical inquiries, harassment, and discrimination.

To help guide companies through this multifaceted public health crisis, Morgan Lewis has launched Responding to the 2019 Novel Coronavirus to keep on top of developments as they unfold.

Are you about to sign a service agreement with a third-party service provider under which it will access and use technology of your company? Have you checked your applicable third-party contracts to see if you need any consents? The contracts under which your company uses technology every day, from the mundane to the critical, may contain hidden restrictions on the third party’s access and use for your benefit under the services contract.

There is an endless number of arrangements a customer could have with its third-party service providers, but this Contract Corner will discuss the case where the customer authorizes a service provider to access and use licensed software either while remaining at the customer site, or by moving it to the service provider’s site. More specifically, it explores just some of the issues and language in the customer’s license agreements with those third-party software providers to be checked during pre-signing due diligence.

Please join us for our first webinar of the year where Morgan Lewis partner Barbara Melby will discuss the top trends that will impact the outsourcing market in 2020. Topics will include:

  • Forecasts of where the outsourcing market is going
  • Outsourcing as a way to disrupt business operations
  • The impact of cloud, automation, and AI on outsourcing transactions
  • A look at the “Partner Ecosystem”
  • Focus on customer experience and outcomes

The webinar will take place on Wednesday, January 15, 2020, from 12:00 to 1:00 pm (Eastern Time). Register for the webinar.

You signed a long-term deal. It would be embarrassing if, in a few years after signing, the pricing is significantly higher or your service levels are significantly lower than market. Benchmarking provisions are intended to provide a mechanism for ensuring that your pricing and/or service levels are within market (taking into consideration the unique factors applicable to your deal). Set out below are some of the key components of a meaningful benchmarking provision.

In this contract corner, we consider the concepts of “good faith” in commercial contracts under English law.

The General Position Under English Law

The notion of good faith is a complex and evolving concept under English law, and it has important implications for those drafting commercial contracts. In contrast to many other civil (e.g., France and Germany) and common (e.g., United States and Australia) law jurisdictions, there is no general doctrine of good faith either in negotiating or in performing a contract. Instead, parties are free to pursue their own self-interests, so long as they do not act in breach of contract. However, the notion of good faith can still impact commercial contracts in three main ways:

We have all heard the horror stories: system implementation deals costing 300% more than the original budget, go-live dates for development projects being way past the scheduled dates, and deliverables that do not meet the customer’s expectations. These are the stories that keep us lawyers up at night. So what can we do in the contract to incent timely, on-budget performance by the vendor? First, there is no substitute for a detailed and well-thought-out requirements document, which provides the roadmap that shapes the design, build, and deployment. Then, while there is no magic bullet, there are numerous contractual mechanisms to be considered that are designed to provide guideposts and checkpoints to enable success.

Set out below are 10 contractual mechanisms for providing meaningful performance commitments and consequences if the commitments are not met. Maybe you will not need to invoke these mechanisms, but having firm rules may help drive good behavior (you know the old adage, “good fences make good neighbors”). As is always the case, the appropriate mechanisms to be used are deal specific, and not all deals or relationships require the full spectrum of contractual commitments set out below (but some do!).

Partner Barbara Melby, the leader of our technology, outsourcing, and commercial transactions practice, will be presenting “Intellectual Property Issues in Outsourcing” at Practising Law Institute’s (PLI’s) upcoming Outsourcing 2019: Innovation and Disruption program in New York. Barbara’s one-hour presentation will take place on Thursday, October 31 at 1:15 pm ET. She will discuss intellectual property (IP) issues in outsourcing, including the following topics:

  • Recognizing and avoiding common IP pitfalls
  • Copyright, patent, and trade secret issues from vendors’ and customers’ perspectives
  • IP representations, warranties, and indemnities in outsourcing transactions
  • Open source considerations
  • IP issues in cloud deals