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Tech & Sourcing @ Morgan Lewis

TECHNOLOGY, OUTSOURCING, AND COMMERCIAL TRANSACTIONS
NEWS FOR LAWYERS AND SOURCING PROFESSIONALS
Contract Corner

Are you a customer negotiating a services agreement that will grant you access to use certain technology? Have you read through the agreement or accompanying links to determine if you need to adhere to an acceptable use policy (AUP) for such technology? In this post, we’ll discuss some of the items a customer should consider when reviewing AUPs within services agreements.

Customer Considerations When Reviewing an AUP

Generally, AUPs are a set of service provider guidelines describing permitted and unpermitted uses of technology. When it comes to reviewing an AUP, as a customer, you should consider at a minimum whether:

  • the use rights for the technology you are paying for align with your company’s intended purpose for such use;
  • there is an obligation for you to implement certain security or confidentiality procedures in order to use the technology;
  • you are responsible for all activities and content that occur on your account even if your username or password is corrupted or co-opted by an unauthorized third party;
  • there is an obligation for your authorized end users to expressly consent and adhere to the requirements within the AUP;
  • a breach of the AUP will result in either a suspension or termination of your access to the technology, and if you will have an opportunity to cure any such violation; and
  • a breach of the AUP will open the door for the service provider to seek injunctive or other equitable relief.

Location of the AUP

AUPs are generally located either within the body of the services agreement or via a link on the service provider’s website. An online AUP can be problematic for you, the customer, because the service provider may update such terms at any time without your consent or knowledge. In turn, such updates may limit your ability to use the services for your original intended purpose, or worse, could cause your current use to suddenly be in violation of the online AUP. In order to avoid potential issues that can arise from a service provider’s right to unilaterally update an online AUP, a customer should request such terms be moved to the body of the services agreement; however, if the service provider will not agree to such a move then consider adding one of the following provisions to the services agreement:

  • An exclusion not permitting the service provider to unilaterally update the AUP during the term of the services agreement;
  • A right allowing the service provider to update the online AUP following written notice delivered to you, but with a requirement that any such updates to the online AUP will not impact your access and use of the applicable technology, and will neither conflict with any other terms of the services agreement nor require any additional obligations on your behalf (including without limitation additional liability obligations);
  • A right allowing the service provider to update the online AUP following written notice delivered to you, but subject to your discretion if any such updates materially impact your ability to use the applicable technology for the original intended purpose; or
  • A right for you to terminate the services agreement with a pro rata refund of prepaid fees to you if the AUP updates materially impact your ability to use the applicable technology.

The aforementioned are only a handful of items to consider when reviewing an AUP. Thinking through these topics now can help to ensure that your company remains in compliance with such requirements, while confirming that no limitations to use the licensed technology as you intend exist.