Kavitha Gupta's blog

Indemnities for cyber risks - a customer viewpoint James Walsh 18/11/2019 In  a recent article , I highlighted that the cyber insurance suppliers have in place may not extend to cover broad indemnities offered by the supplier for cyber and other GDPR-related risks. But what, I have been asked since, is the right position for a customer to take? Clearly some take the view that customers should seek to pass liability for cyber and GDPR-related risks down their supply chain for incidents caused or contributed to by their suppliers, even if suppliers may have difficulties obtaining insurance cover for the risks. I have certainly had occasion to negotiate similar positions for some clients. However, there are a number of very practical reasons why a customer may be better off not seeking broad indemnities for cyber risks in their supply contracts: 1.  Losses suffered by a customer for a cyber incident can often be recovered under normal principles of contract la...

I found this article interesting on key contractual clauses to be considered when dealing with cloud computing contracts. There is a wrong perception prevailing that the standard boiler-plate contract clauses are applicable to digital transformation contracts. Indeed the liability, indemnity, termination and privacy clauses etc. will require careful reading and drafting to protect the interest of the parties and to suit the requirements. Please read-on the article to learn more.    Negotiating Technology Contracts: On-premise vs. Cloud and Hosted Software by Stephen F. Pinson   in  Blogs More and more businesses are considering accessing hosted software rather than purchasing on-premise software.  They are also placing data in third-party public or private clouds instead of selecting on-premise software.  This article will explain the key considerations and contractual provisions when deciding to utilize a hosted software cloud solution versus on-...

Supreme Court upholds rule against penalties and provides new test Emily Parris 04/11/2015 After much speculation that the Supreme Court would either abolish the rule against penalties or narrow its scope to exclude commercial bargains, today the Supreme Court has unanimously upheld the validity of the rule while reformulating it. Cavendish Square Holding BV (Appellant) v Talal El Makdessi (Respondent); ParkingEye Limited (Respondent) v Beavis (Appellant)  [2015] UKSC 67. The rule against penalties is a longstanding rule under English law, based on public policy, that a contractual provision is invalid and unenforceable if it seeks to  punish  a party for failing to comply with the contract, i.e. if it is penal in nature. Until recently, the courts have rarely had to apply the rule to anything other than straightforward liquidated damages clauses. As more complex cases have come before the courts, the test for determining whether a contract provision is pe...

Contracts refresher: excluding liability for loss of profits Emily Parris  &  Simon Briskman 28/01/2015 When a technology contract goes wrong, customers will often suffer not just from a loss of systems but also from disruption to their business. Disruption may lose them vital revenues and even give rise to claims from customers. It would seem intuitive that contracts should be clear cut and allow customers to claim for loss of profit. But the position is far from clear. As a result, customers and suppliers must carefully craft their contracts if they are to effectively include or exclude claims for loss of profits. The key issue is that English law only allows losses to be claimable if they are not unlikely or reasonably foreseeable as a result of the breach at the time the contract was entered into. Exceptionally, claims may be allowed where at the time the contract was concluded the parties had special knowledge of a certain kind of loss (e.g. that o...

How to Craft Contracts, SLAs and Master Services Agreements for MSPs  September 7th, 2016  Doug Barney   You might think the root of MSP revenue is services, and that is true. But it is contracts that define these revenues and, properly written, ensure the money you earn keeps rolling in on a regular basis. In fact, contracts are a cornerstone to any thriving MSP, serving many essential functions, including serving as a bond between client and provider. As such they should be treated and crafted with care. Mastering Master Service Agreements Many MSPs prefer a Master Services Agreement (MSA), which is a more detailed style of contract. Because MSAs tend to be highly technical, some half of these contracts are prepared without help from an attorney, according to the MSP Alliance. The main issue is the cost of legal counsel.  However, MSPs sometimes believe these MSAs are good to go because the MSP professionals who wrote them understand their business...