1 Contracts – the small printRichard Marke BWB 4 July 2016

2 Agenda Brexit IPR Data Protection Liability Exit

3 Brexit

4 The Impact of Brexit on contractsIn a word – uncertainty EU laws still apply Currency

5 Watch out for the small print…

6 Intellectual Property RightsContract IP Joint-ownership (DANGER!) Single-party ownership with licences Restrictions? Title passing on payment (resist!) Background IP Extent of existing IP used Sufficient licence for the intended use

7 Intellectual Property RightsThird Party IP Extent of third party IP Licences (for full purposes) Additional cost? Open source OSS often comes with distinct conditions (crediting, providing all improvements on an open source basis, etc) Assurances Warranty that no third party infringement Indemnity to cover third party claims

8 Data Protection

9 General Data Protection RegulationDirectly effective Not a substantial shift from DPA 1998 Likely in effect before Brexit Adherence to GDPR will most likely be necessary in any alternative relationship with the EU

10 Data Protection “Data Controller” vs “Data Processor” Only Data Controller is subject to the DPA 1998 (this changes under GDPR) Will personal data be processed under the agreement? YES: contract must address data protection NO: contract should address data protection (light touch)

11 Security due diligenceData Protection Security due diligence Increasing importance to demonstrate compliance Proportionate security Sensitive personal data = increased security Control access to personal data Where will personal data be held/processed? Outside EEA? Model clauses Binding corporate rules Findings of adequacy (Privacy shield) Codes of Conduct (membership organisation) Certified

12 Key Data Protection contract points: Process personal data only at instructions of Data Controller Appropriate security measures in place Prohibition on transferring outside the European Economic Area without consent Assistance with subject access requests and/or complaints Audit rights Indemnity

13 Liability

14 Who does the liability clause apply to?reciprocal vs one-sided Does it go too far? Statutory exclusions Are remote/consequential losses excluded?

15 Limitations on liabilities Proportionate to contract value and risk Liability Limitations on liabilities Proportionate to contract value and risk Watch out for “fees paid” Indemnities – should these be outside: The cap on liability? The exclusions of remote and consequential losses?

16 Exit / Termination Provisions

17 How quickly can you exit? Exit planningHandover TUPE Return of materials/data Continuity with other IT contracts (e.g. hosting)

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19 Contact Richard Marke Partner Corporate & Commercial DD: +44 (0)