Tech & Sourcing @ Morgan Lewis

Welcome to the third post in our Spotlight series, where we talk with a leader in a particular field or emerging area of interest to technology and sourcing lawyers and professionals.

A recent judgment by the High Court of England and Wales in the case of Jamp Pharma Corp v. Unichem Laboratories Limited has held that agreements reached as part of contract negotiations for contracts governed by English law may be impliedly “subject to contract” without the need to expressly state that the discussions and documents are “subject to contract” prior to a formal executed agreement.

Planning for major service disruptions and disasters, such as prolonged power failures, fires, flooding, and other extreme weather events, is an important element of strategic technology and service agreements. While there are many possible approaches to business continuity and disaster recovery (BCDR) provisions in a contract, there are certain topics and issues that should be discussed and analyzed by the deal team when determining the right approach.

The UK’s Financial Conduct Authority (FCA) published its 2021/22 Business Plan on July 15, setting out its future role, priorities, and how it intends to deliver them. The FCA’s website contains a summary and full copy of the business plan.

Changes to complex commercial contracts are inevitable. These contracts, such as large outsourcing agreements, typically include a master services agreement (MSA) and a high number of exhibits and attachments describing the scope, performance standards, financials, and other contractual requirements in detail. Some deals can end up containing over 50–75 documents (or more!) in total. Given their strategic importance, these agreements often require numerous amendments as the relationship evolves over time and changes need to be formally documented.

On June 4, 2021, the European Commission adopted its long-anticipated updated Standard Contractual Clauses (New SCCs) for use by organizations transferring personal data outside of the European Economic Area (EEA) to third countries that do not provide adequate protections in respect of personal data. For more information, read our June 10 LawFlash, New European Standard Contractual Clauses Adopted for International Data Transfers.

The United Kingdom’s Department for Digital, Culture, Media & Sport (DCMS) is requesting views on supply chain cybersecurity, which it will look to incorporate into its new National Cyber Security Strategy.

Autorenewal provisions (sometimes referred to as evergreen provisions) are common in commercial agreements for the provision of technology and related services. Vendors may want their agreements to autorenew to save time negotiating new contracts and to continue the customer relationship. Customers often desire to terminate an agreement, thinking they have the right to do so, only to realize the term of the agreement has been automatically renewed for another year or number of years.

On July 1, 2021, the National Collegiate Athletic Association (NCAA) officially changed its rules prohibiting college athletes from receiving benefits from their name, image, and likeness. This is arguably the most significant day in the history of the NCAA as this landmark decision represents a monumental shift in the NCAA’s policies surrounding amateurism of athletes.

A common concern of parties involved in technology transactions is the potential high costs incurred in the event of a data breach. In an attempt to establish the legitimacy of the amounts one can actually expect to face, the Ponemon Institute, considered the preeminent research center dedicated to privacy, data protection, and information security policy, published the Cost of a Data Breach Report setting forth a vast data set that analyzed data breaches at over 500 organizations to spot trends and developments in security risks and best practices.