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...

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...

Who’s going to drive you home – legal issues surrounding driverless cars Bristows LLP It is anticipated that advanced driver-assistance technology will be commonplace by 2020 and that truly autonomous vehicles will be seen on our roads by 2025. In recent months more and more companies have announced plans to bring driverless cars to UK roads sooner rather than later – but is the law ready? In this webinar, Bristows’ experts will examine the legal issues arising in relation to driverless cars and discuss whether the existing relevant legal frameworks are fit for purpose. In particular, they will provide insight into issues relating to cyber, data and artificial Intelligence (AI). They will also consider the existing product liability framework and discuss the potential pitfalls and issues with the existing regime. They will further consider the new insurance position for these vehicles as set out in the Automated and Electric Vehicles Act 2018 and what this means for t...

Negotiating Contracts: 12 Key Terms to Negotiate in a Software as a Service or Cloud Service Agreement by Stephen F. Pinson in Blogs Software as a Service and Cloud Service offerings have become ubiquitous digital platforms for many enterprises and small businesses in their quests to provide a single unified platform to their employees and customers. Providers offering Software as a Service and Cloud Services allow end users to access software and infrastructure remotely from any location and storing data with a provider. Because of the risks associated with storing data in the cloud and the need for uninterrupted access to the data, businesses want to be sure that they understand their requirements when entering into a cloud service agreement with a provider. The following is a list of suggested requirements when negotiating Software as a Service or Cloud Service agreement (these are not in any particular order): Demarcation A demarcation point is typically ...

Liability caps of no use without binding agreements Newsletters January 30 2017 |   Mayer Brown International LLP A specialist concrete subcontractor made a £40 million claim against its consultant, alleging defective design. (1) The consultant denied liability and argued that, even if it were liable, there was a simple contract with a liability cap of £610,515. The court had to decide whether there was a contract and whether any of the three sets of competing terms and conditions, and the cap, were incorporated in it. The court found there was a simple contract which was not "subject to contract". Work was done and paid for on the basis of instructions from the subcontractor, which were accepted by the consultant, as evidenced by its conduct in undertaking the work. Further, none of the sets of terms and conditions and the schedule containing the liability cap were incorporated in that contract. While the court should always...

http://www.slideshare.net/secret/EOsZT3pqwSMUWI There is much flexibility in drafting terms of indemnity provisions and insurance clauses in contracts for the provision of goods and services. The circumstances unique to the transaction should be considered. For instance, general terms like “losses” and “damages” or “seller” and “buyer” should be defined as accurately as possible. It is important to include the provision that the contract’s indemnity and insurance coverage are the exclusive remedy available to the indemnitee for all claims that may arise. Failure to do so may enable an indemnitee to “sidestep” the contractual indemnity. Provisions should also address the mechanics of how indemnity and defense coverage is provided. 

October 27, 2016 A Liquidated Damages clause does not oust the need to prove the loss: Bombay HC In a claim for liquidated damages, evidence has to be led in support of the same, and such a claim shall be granted on consideration of the basic principles for grant of liquidated damages. Relying on precedents, the High Court has reaffirmed that (a) the amount stipulated as liquidated damages has to be a reasonable compensation and a genuine pre-estimate of damages; (b) should not exceed the amount so stated, or the penalty so prescribed; The actual loss or injury has to be proved for claiming liquidated damages, and such burden may be dispensed with only when actual damage from breach of contract cannot be proved or calculated.  Introduction Recently in Raheja Universal Pvt. Ltd. ( “Appellant” ) v. B.E. Bilimoria & Co. Ltd. 1 ( “Respondent” ), the Bombay High Court ( “High Court” ) elaborated on the scope and implications of liquidated damages under Section ...