Archives: Commercial Contracting

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Planning for the Inevitable – Tips for Planning for Disagreements in Outsourcing and Other Commercial Contracts

Written by David Messerschmitt Disagreements over the course of a commercial relationship are inevitable.  A pitfall of many commercial contracts is that the parties often incorporate “boilerplate” dispute resolution clauses that simply state that all disputes will be resolved in a court of law and do not include a process for resolving disagreements prior to … Continue Reading

Joint Ownership of Intellectual Property: Complexity That Only a Lawyer Could Love

Written by Mark Radcliffe Companies are increasingly working cooperatively to develop technology, particularly software programs. One critical issue is the ownership of the resulting intellectual property in the software programs. This decision is complicated because software programs can be protected by multiple forms of intellectual property rights: copyright (works of authorship, like books and music) … Continue Reading

FCA guidance for firms thinking of using third-party technology (off-the-shelf) banking solutions

Written by Nichola Prescott, Associate, London The Financial Conduct Authority has published a document setting out a list of points for financial services firms to consider when preparing for and evaluating third-party technology banking solutions. Where a third-party provides services which are critical to a regulated firm’s business operation, it will be considered an outsource … Continue Reading

DLA Piper Sourcing Reference Guide

NEW RELEASE: CHAPTERS 11 AND 12 COMPLIANCE AND DATA PROTECTION DLA Piper’s award-winning global Technology and Sourcing team is pleased to release the 11th and 12th chapters of the Sourcing Reference Guide, our handbook to conducting successful sourcing transactions. Chapter 11 looks at Compliance and Chapter 12 looks at Data Protection. The complimentary Sourcing Reference … Continue Reading

Saudi Arabia’s telecoms market opens up for competition

What has happened? The telecoms regulator in the Kingdom of Saudi Arabia (KSA) has set a deadline of 4 May 2013 for companies to submit applications for three mobile virtual network operator (MVNO) licenses in the KSA, as the market opens up for further competition. The winners of the licenses will be announced twelve weeks … Continue Reading

OFCOM forces BT to offer GBP£100m in refunds to wholesale ethernet customers

OFCOM, the UK telecoms regulatory, recently published the results of its determination on a set of disputes relating to BT’s charges for wholesale Ethernet services to Sky, TalkTak, Virgin Media, Cable & Wireless and Verizon. The disputes concerned BT’s charges for “Wholesale Extension Services” and “Backhaul Extension Services”, used by communications providers to provide broadband … Continue Reading

Contracts Deconstructed: What “Shall” We Do?

Recently, I have heard many attorneys and experts in legal writing touting the importance of eliminating the use of the term “shall” in contracts.  Generally speaking, this may seem like the right approach given that “shall” may be interpreted to mean something that could be done or “shall” may be interpreted to mean something that has to be done.  But, no matter … Continue Reading

Negotiation Tactics Matter: Dealing with Deal Fatigue

Deal fatigue is a real issue — and something you will immediately understand if your job includes negotiations on a single contract that last months or even years.   When I say deal fatigue, I mean the situation where people get so tired of a project that they start compromising on issues just to reach the conclusion or … Continue Reading

Contracts Deconstructed: Gross Negligence and Willful Misconduct

Negotiations related to gross negligence and willful misconduct seem to be trending this past fall.  So, I thought I’d take this opportunity to revisit what these phrases actually mean in the context of commercial contracting.   In many agreements, gross negligence and willful misconduct are “carve-outs” in the limitation on liability provision.  What do I mean by a “carve-out” on … Continue Reading

Force Majeure: The Weather Doesn’t Care about Your IT Strategy

Our thoughts and prayers go out to those impacted by Hurricane Sandy and the Nor’easter.  While Mother Nature has been relentless against the east coast of the United States over the past several weeks, us IT attorneys cannot help but think about the significance of those force majeure clauses and disaster recovery plans in agreements that are often glossed over during … Continue Reading


The UK Information Commissioner’s Office (“ICO“) has released guidance on the use of cloud computing (“Guidance“). This Guidance follows the long awaited opinion of the EU Article 29 Data Protection Working Party (“WP 29“) (Opinion 05/2012 on Cloud Computing (the “WP29 Opinion“)) issued in July 2012, which stresses that control and transparency are key for … Continue Reading


If we cast our collective minds back to the days “pre-Crunch”, a marked feature of many sourcing strategies adopted by larger entities was a move to embrace multi sourcing (i.e whereby a service or set of services which could conceivably have been awarded to a single supplier was instead broken up and divided between a … Continue Reading

New EU Roaming Rules — Implications for MVNOs

New rules dealing with international roaming within the European Union came into force on 1 July and some of their detail has potentially significant implications for Mobile Virtual Network Operators (MVNOs) who have already been in operation for some time, as well as for new ones. The third roaming regulation, like the previous two, places … Continue Reading

March 1 Is Deadline to Update Vendor Agreements in Compliance with Massachusetts Data Security Regs

Businesses that own or license any personal data regarding Massachusetts residents have until March 1, 2012, to update vendor agreements to include requirements that vendors implement and maintain a data security program that complies with 201 Code of Mass. Reg. 17.00. In 2008,Massachusetts enacted the Regulations – a set of comprehensive and detailed data security … Continue Reading

Commercial Corner: “If” vs. “To the extent”

The use of “if” vs. “to the extent” is something we often consider closely in commercial contracting.  “If” creates a contingency under which a clause will either be triggered or not be triggered by a certain event.  “To the extent” may apply to the degree the event is applicable at all.  For example, the sentence “Vendor will comply with the policies and procedures … Continue Reading