25 July 2011

Non Disclosure Agreement


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Ssh! It's a secret!

How likely is it that the below “confidential information” definition is the most extensive and exhaustive one?

Read and enjoy -)!

“Confidential Information” means all nonpublic, technical and non-technical confidential and/or proprietary information of the Disclosing Party in whatever form transmitted to the Receiving Party, including, without limitation, all information concerning the Disclosing Party’s past, present, and future products and services including, without limitation, information concerning the Disclosing Party’s business, marketing and product development plans, research, experimental work, design details and specifications, engineering,  customer lists and records, business records, financial statements and information, procurement requirements, technical information, pricing, discount and cost information, manufacturing, investors, employees, business and contractual relationships and terms and conditions, correspondence, business forecasts, sales, merchandising, information the Disclosing Party provides regarding third parties and other proprietary information, including without limitation all data, technology, research, inventions, tools, prototypes, patent and patent applications,  intellectual property, trade secrets, know-how, formulations, files, software programs, software source documents, compositions, works of authorship, mask works, ideas, samples, media techniques, sketches, drawings, models, apparatuses, equipment, algorithms, processes, methods and the like, and all information and formulae relating to the Disclosing Party’s past, present and future research, development and business activities of a nature generally considered confidential or proprietary in the business world.

17 May 2011

Click And Gone: 3 Tips How Not To Get Wrapped By An Agreement


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Because of the advent of the Internet, many suppliers will more and more often omit to serve their customers with paper based contracts.

In fact, do you ever remember to have signed a real contract with, say, Facebook or Twitter? Good, those may not be the best examples as they (still) provide their service for free. But, what if you were to enter into a consideration based contract and you were not provided an old-fashioned paper copy, but asked to click through a web form instead?

This is the question I would like to address in this blog article. Particularly, I shall show you how to read, understand and deal with such agreements.

Having got started, let me first explain what a

Click-Wrapped Agreement

is supposed to mean.

Terms such as click-wrap and browse-wrap are being more and more used to describe agreements where customers indicate their acceptance to an agreement as well as their readiness to “execute” said agreement by pressing a button on a website.

Recently I had to examine a click-wrapped non-disclosure agreement (NDA) provided by a technology giant known for its preference for web hosted documents.
I was asked a simple question: “Can I sign it (or have it signed)”?

Though I am technology-focused, I had some initial doubts. Sure, I was familiar with click-wrap licenses appearing on your monitor prior to either the download or the installation of a software as well as what courts had ruled on them. But an NDA? It felt somehow strange.

So, tip #1 – read the terms of the agreement.
Check whether it provides for the

Creation Of A Binding Contract

between two (or more) parties.

Basically, you need an offer, which is accepted with the intention to be legally bound. Should this work by clicking an HTML button?
Hmm, why not?
The act of clicking would be the expression of an unconditional acceptance to the terms of the agreement and hence fully sufficient.

Now that we have proved the valid formation of the contract, we should consider our next point:

Who May Press

the button?

Are you a party to the agreement, you can make the click. But what, if someone else should press it?

Time for tip #2 – check whether the person supposed to press the button is also authorised to do so. This is important because the lack of authorisation is likely to challenge the validity of the contract.

Once having identified the proper “signatory” you need to secure your

Evidence

At this stage, you should distinguish between two things: (1) you need an evidence that a contract has come into existence and (2) you must ensure that the content of the contract shall not subsequently be modified or manipulated.

Hence my tip #3 – make sure you are sent an email copy of the contract you have executed by clicking. The copy should bear the execution’s date and all relevant details such as name, address, signatory name etc.
Print out the copy, sign it personally (or have it personally signed by the signatory) and thereafter file it with your lawyer or, depending on your jurisdiction, with a notary public. This is how you can secure at least a prima facie evidence with respect to (1) and (2) above.

Concluding Thoughts

Click-wrapped or browse-wrapped agreements are driven by the online technologies and are ostensibly easy to handle. You have to know that courts have held them to be enforceable, though merely in single instances. Once you have executed such a click-wrap agreement, you should endeavour to better your stand applying an adequate contract management.

Why? In order not to be gone right after your click!

29 April 2011

5 Tips To Avoid Troubles In The Cloud


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Lightningphoto © 2010 scyllarides | more info (via: Wylio)

Couple of days ago I had to review an agreement on cloud computing services that one of the major suppliers in this realm had submitted. When I went through the terms and conditions, I could not gain the impression that the supplier has a great confidence in its capability to deliver the service in question. I found some of the terms even so onerous that I had to consider a strategy to protect my client from getting electrocuted in that supplier’s cloud!

Having thought that sharing some tips on the Reguligence Weblog would be of interest for its readers, I have composed the following list:

1. Service Availability

This agreement reminded me of a telecommunications contract: the supplier basically grants recipient an access to its infrastructure environment and the recipient pays a use-based fee in return.
However, the supplier offers its service on an “as-is” basis and does not warrant any specific availability or quality.
Hence, you should not go for it, if you intend to run a mission critical system in the cloud or your business requires a reliable service performance. You can either endeavour to negotiate different terms or opt for a specifically tailored solution. In both cases the payments are very likely to increase. If you re-sell your services, you should endeavour to limit your liability towards your recipients.

2. Warranties

As mentioned in the beginning of the article – the service supplier seems not confident in its service capabilities. The supplier merely warrants to perform the service with a reasonable care and workmanship. Should you accept it? Well, unless your business model mandates otherwise… You could also suggest a discretionary payment language, something like payment shall be subject to recipient’s overall satisfaction and wait for supplier’s reaction.

3. Liability

What damage are you likely to suffer during such a service delivery? Hmm, maybe loss of data and loss of profit due to a service interruption or an outage? Yes, I guess they are the likeliest to occur, but I  feel you can already assume that, they are –  what? – excluded, what else?
So, make sure you have not entered into an obligation to recover your customer for such losses because this could ruin your business!

4. Data Security

From what I did read, I would never encourage you to upload sensitive data onto the cloud… Again, your supplier is neither liable to keep them secret and confidential nor to retrieve them if they happen to disappear.

5. Data Protection

Albeit this is the last topic on my list, it is very wise to pay special attention to it because data protection may be a very tricky issue under the jurisdiction of a EU member state. Beware if you have to upload personal data onto the cloud – your supplier has access to them and is eager to process them for its own purposes! And this is the catch: personal data must be obtained and processed only for a specified purpose. I bet your purpose will differ from the one of your supplier. Besides, as a general rule personal data must not be transferred outside the European Economic Area, so make sure you have read and understood your cloud services agreement or process previously anonymized data only.

My Final Say

Cloud services may be a great thing if you need a specific infrastructure whose purchase for a single project would not pay off.
On the other hand, cloud services agreements seem to be too much supplier oriented and, as a matter of fact, detrimental to the recipient.

Make sure you do not use cloud services to run mission critical tasks, at least not before you have spoken with your trusted lawyer!

Cloud Texture 11photo © 2009 Jacob Gube | more info (via: Wylio)

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