Technology Update Q1 2010
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Software: how long does a "perpetual" licence last?
In a recent decision the High Court has considered the meaning of "perpetual" in the context of a software licence. The judge ruled that "perpetual" was an ambiguous term, which, on the particular facts, did not mean "incapable of being brought to an end" but instead meant "of indefinite duration, but subject to any contractual provisions governing termination". The decision will be of interest to all software licensors and licensees.
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BSkyB vs EDS ruling: wider lessons for technology projects
The High Court's ruling in BSkyB's £709 million damages claim against EDS has already received widespread press coverage. Interim damages of £200million are reported to have been awarded, and the issues of quantum and of liability under a parent company guarantee are yet to be determined. The case does not establish any new legal principles, but many of its themes will be familiar to those involved in large scale technology projects. Among other things, it is reminder that the precise drafting of the entire agreement clause may have a pivotal role on the extent of a customer's claims.
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"Subject to contract": when will parties be bound by a "subject to contract" draft?
A recent decision by the Supreme Court illustrates the pitfalls of commencing performance of services before a contract is finalised, and the circumstances in which a "subject to contract" draft contract may nevertheless be binding.
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International outsourcing: new processor clauses go live 15 May - time to "spring clean" your contracts?
From 15 May 2010 businesses transferring personal data outside the EEA, for example in the context of an outsourcing, will need to review (and in some cases update) the contracts which they have in place with data processors, to ensure continued compliance with data protection legislation.
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Outsourcing: is your supplier a "data processor" or a "joint controller" - and why does it matter?
One of the most tricky questions for practitioners advising on deals which involve the transfer of personal data can be identifying whether the receiving entity is a joint "data controller" or a mere "data processor". The parties' status under data protection law has important practical and liability implications. There is new regulatory guidance to help organisations evaluate their arrangements, which includes useful illustrations in the context of outsourcing and other common commercial deals. It also emphasises the need for parties to be clear about the distribution of responsibility for and control over personal data in their contracts. This is a "must read" for practitioners advising on this area.
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Definitions of "group" companies in commercial contracts - a cautionary tale
Recent developments highlight the need for care when defining the scope of groups of companies in any kind of commercial agreement.
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Data security: new ICO fines and audit powers from 6 April; plus guidance on quantifying security breaches and valuing personal data as a business asset
Significant changes to the UK's data protection regime come into force on 6 April in the form of the ICO's new powers to impose fines and, in certain circumstances, conduct compliance audits. For organisations wishing to minimise their risks, there is no shortage of good practice guidance from the ICO. Businesses should review their systems and processes for handling personal data to ensure these are sufficiently robust. Here we summarise the key developments.
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Open Source: Government refreshes open source strategy
In January the Government has announced some developments to its policy on open source in public procurement. This "refresh" forms part of a wider update to the Government's ICT strategy. Its recommendations for making IT procurements "smarter, cheaper and greener" will also resonate with buyers in the private sector.
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Public sector: all change for procurement limitation periods due to a lack of certainty
Just when we thought that public procurement law was complicated enough - with the introduction of new remedies provisions at the end of December 2009 - the ECJ's recent decision in the Uniplex case has muddied what we thought were the relatively clear waters of procurement limitation periods. The case is likely to precipitate further changes to the UK procurement Regulations in order to provide a fixed calendar period for the bringing of procurement challenges (which is at least as long as the standstill period) and will replace one arguably opaque term ("promptness") with a new, less than crystal clear term ("knowledge").
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Tax: an update on the "Patent Box" tax regime
The Government's proposals for a "Patent Box" tax initiative to boost investment in high-tech and innovative industries, confirmed in last week's budget, has met with mixed reactions. We assess the state of play.
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The Digital Economy Bill: the state of play
The Digital Economy Bill has moved one step closer to becoming law, having been approved by the House of Lords. The next step is the second reading debate in the House of Commons, scheduled for 6 April, when the debate over some of the Bill's more controversial elements should begin in earnest. Progress is being watched keenly by those on both sides of the debate: the creative industries on the one hand and telecoms and Internet intermediaries on the other.
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Trademark infringement and intermediary liability: ECJ rulings on Google AdWords
Last week the European Court of Justice handed down its rulings in the three Google Adwords cases referred by the French court and in a similar case referred by Austria. The decisions have practical implications for brand owners, advertisers and for search engines and other online intermediaries.
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The information contained in this update is intended as a general review of the subjects featured and detailed specialist advice should always be taken before taking or refraining from taking any action.
