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

Many companies are actively exploring how to better use, commercialize, and productize (make into a standalone product) the data that they collect or is collected on their behalf. A gating issue for these companies is determining whether they in fact own or have the right to use the target data in the manner being contemplated by the business. From a legal perspective, there are three work streams that typically need to be carried out when addressing this issue:

Everybody does it. We may say that we only use the “customer’s paper” when contracting, but we know that is often not the case when entering into licenses for commercially available, off-the-shelf (COTS) software products. Maybe if the licensed software is a strategic product or the customer has significant leverage, we are able to work from the customer’s paper, but for ordinary course software licensing, it is common to use the vendor’s paper.

So what then? Using the vendor’s paper does not mean that the contract shouldn’t be reviewed and negotiated to ensure that key issues are addressed. Set forth below is the first part of a quick checklist of issues customers should be mindful of in any software licensing agreement. Today’s items focus on issues that are more business or operational in nature, while the forthcoming post with Part 2 of the checklist will include more traditional legal issues.

Our privacy and cybersecurity colleagues at Morgan Lewis have offered their insights into the shared responsibility of the government and the private sector in adopting effective information security practices and the need for a tailored, flexible approach to cybersecurity regulation. In their Bloomberg Law Privacy and Security Law Report entry, The Government’s Role in Promoting and Leading Effective Cybersecurity, Morgan Lewis partner Mark Krotoski and associate Martin Hirschprung highlight several recent cyberattacks, discuss cooperation efforts between the government and private sectors, provide an overview of the current US regulatory landscape, and identify their recommendations for key factors the government should consider to streamline and reduce the burden of cybersecurity regulations while still promoting effective cybersecurity.

Join Morgan Lewis at our Boston office on Wednesday, December 6 for an interactive event on top issues impacting commercial and transactional lawyers and sourcing professionals. The event will kick off with a collaborative discussion on negotiations and strategies in commercial and technology transactions, followed by a presentation on ethical issues for transactional lawyers.

Morgan Lewis partner Don Shelkey, of counsel Emily Lowe, and senior attorney Ada Finkel will speak at the event.

As 2017 comes to a close, we have once again compiled all the links to our Contract Corner blog posts, a regular feature of Tech & Sourcing @ Morgan Lewis. In these posts, members of our global technology, outsourcing, and commercial transactions practice highlight particular contract provisions, review the issues, and propose negotiating and drafting tips. If you don’t see a topic you are interested in below, please let us know, and we may feature it in a future Contract Corner. These posts cover many different provisions and aspects of drafting commercial, outsourcing, and technology contracts:

Assignment
Assignment and Delegation

An assignment and delegation provision is the clause that specifies a party’s ability to assign its rights or delegate its duties under an agreement. It is a provision that is often placed in the “miscellaneous” or “general” sections of commercial contracts, but it should not be thought of as standard “boilerplate” language that never changes.

Contracting parties should carefully consider the potential situations where an assignment would be desired or required, and should carefully draft the clause to address issues of transferability. Below is an overview of some of the key issues that should be considered when drafting an assignment provision for commercial and technology agreements. Note that, technically, a party assigns its rights and delegates its duties. This overview generally refers to assignments for shorthand.

Data owners and processors are working hard to make sure they have compliance programs in place by the time the European Union’s General Data Protection Regulation (GDPR) goes into force on May 25, 2018. To that end, a new resource was released last week to help evaluate the level of data protection offered by cloud service providers (CSPs).

On November 21, the Cloud Security Alliance (CSA), an organization dedicated to defining and raising awareness of best practices for a secure cloud computing environment, released the CSA Code of Conduct for GDPR Compliance (CoC) to provide CSPs and current and potential cloud customers with guidance on compliance obligations under the GDPR. The CSA also launched the GDPR Resource Center, a “community-driven website with tools and resources to help educate” CSPs and enterprises on the GDPR.

As part of our Silicon Valley office’s “First Cup of Coffee” breakfast briefing series, this Thursday, November 14, Morgan Lewis partner Andrew Gray will be hosting Andrew Ray and Melissa Hall from our Washington, DC office to present an update on fintech regulatory issues.

The event, “Looking Beyond the Tech in Fintech,” will focus on pitfalls and best practices as regulatory agencies try to keep pace with technological advances in the financial services industry.

Morgan Lewis is hosting an interactive event regarding top issues impacting commercial and transactional lawyers and sourcing professionals on December 6 in Boston. The event will kick off with a collaborative discussion on negotiations and strategies in commercial and technology transactions, followed by a presentation on ethical issues for transactional lawyers. Morgan Lewis partner Don Shelkey, of counsel Emily Lowe, and senior attorney Ada Finkel will be speakers at the event.

Discussion topics will include the following:

  • Current trends in commercial and technology contracts
  • Commercial due diligence and transition service agreements
  • Online presence management questions
  • Ethics for lawyers on social media

The discussion will be followed by lunch and a networking reception. We hope to see you at the event!

Register for the interactive “Review and Negotiation of Strategic Commercial Agreements” event in Boston.