slalom project legal webinar introduction 20151019 legal aspects
TRANSCRIPT
Avv. Gian Marco RinaldiAvv. Debora Stella
Studio legale Bird&Bird ItalyMonday 19, October, 2015
Slalom contractual and legal issues
SLALOM Project 2
Introduction Bird&Bird:
• an international legal practice with over 1,000 lawyers and legal practitioners worldwide• leading-edge expertise across a full range of legal services (intellectual property, information technology, commercial
corporate, EU and competition, dispute resolution, employment, finance, real estate and tax)• 27 offices in Europe, Middle East, Asia and Australia• 150 lawyers in the Tech&Comm international group• Specialists in cross-border and multi-jurisdictional work
Gian Marco Rinaldi:• A senior associate lawyer of Bird&Bird Italy focussing on information technology, cloud computing, software licensing, copyright,
e-commerce, big data, agile development, electronic signatures Debora Stella:• A senior associate lawyer of Bird&Bird Italy with 20 year of expertise on data protection and IT law.
***• We are currently working also on the CoCo-Cloud project, http://www.coco-cloud.eu/
SLALOM Project 3
Purpose of Slalom SLALOM aims at creating a set of cloud computing terms and conditions
covering all aspects of the relationship between a Provider and an Adopter of cloud computing services
In our work on Deliverable 2.1 we have analyzed the provisions that are generally included in an agreement for cloud services setting out the possible different interests, positions and perspectives of the two parties involved
We drafted the contractual provisions of the proposed SLALOM model CSA taking into consideration the main legislations and regulations applicable to the relevant provisions in Italy, Germany, the UK, France and Greece (excluding industry sector legislations that may be concerned)
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Structure of the CSA
• The Cloud Service Agreement or CSA is the main document setting out the terms and conditions of the contractual relationship between the Provider and the Adopter in relation to the provision of cloud services
• The CSA provides the following attachments: – Attachment 1: Services Description– Attachment 2: Service Level Agreement – Attachment 3: Acceptable Use Policy– Attachment 4: Consideration– Attachment 5: Data Protection – Attachment 6: Security
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Contents of the CSA
The CSA includes clauses relating to
1) Service Levels2) Variation of the services3) Obligations of the Adopter4) Charges5) Service Credits6) Intellectual Property7) Termination and consequences of termination8) Confidentiality Obligations9) Liability10) Subcontracting11) Data Protection12) Governing Law and Jurisdiction
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Deliverable 2.1 General description of the section
This provision describes […]
Standard clauses used in the market
The cloud computing agreements of some Providers […]
Provider’s perspective Adopter’s perspective
The Provider could prefer […] For the Adopter it is important that […]
Position proposed by SLALOM
The main obligation of the Provider […]
SLALOM proposed text
2.1 The Provider shall […]
2.2 The Adopter shall […]
Clauses to discuss
Today we will particularly discuss the following clauses:
1) Service Levels – Service Credits2) Variation of the services3) Intellectual Property4) Liability5) Termination and consequences of termination
Service Level – Service Credits• The CSA provides a section (Section 3) establishing that the Services have to be provided in
accordance with certain Service Levels
• The section refers to Attachment 3 (Service Level Agreement) providing in details the Service Levels and the Service Level Objectives to be fullfilled by the Providers
• Section 7 provides that if the Provider fails to meet any Service Level Objectives the Provider shall pay the Service Credits defined in the Attachment 3 to the CSA
• We have two alternatives:
a) the payment of the Service Credits states the Provider’s sole and entire obligations and liability
b) the payment of the Service Credits shall not limit the Adopter’s right to claim compensation for any further damage and any other rights and remedies for the Provider’s failure to meet the service levels
Variation of the services
• Section 4 of the CSA provides two specific cases in which the Provider may materially change the services:
1) installation of any third party’s content (software, update or improvements)
2) application of any new laws and regulations
• 20 days to take effect
• Right of termination of the Adopter
• Improvements due to bugs, defects, malfunctioning
Intellectual Property Rights
• In cloud computing agreement we need to consider three main points relating intellectual property issues:
i) Intellectual property rights of the Provider
ii) Intellectual property rights of the Adopter
iii) Intellectual property rights of third parties providing applications on the platform of the Provider and possible connected development activities
iv) Intellectual property rights of third parties owning right on Adopter’s data
• Background rights of the Parties
• Warranties and representation on third-party contents
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Liability
●The CSA (Section 12.2) set forth that the Parties may provide a cap. Such cap, according to European legislation on consumers, will be not applicable to consumers
●The cap is not applicable in case of i) willful misconduct of either parties; ii) deceit, theft, fraud or fraudulent misrepresentation by the Party or (their subcontractors); iii) death or personal injuries; iv) intellectual property obligations; v) breach of confidentiality obligations
●Service Credits may be taken or not taken (two possible alternatives) into account when assessing if the cap has been met or exceeded
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Consequences of termination or expiration
●After the termination or expiration of the Agreement, the Provider is obligated not to delete data until a certain period has expired
●During such period (“Retrieval Period”) the Adopter is entitled to retrieve the data stored on the Provider’s system in a “structured and widely-used format, capable of ensuring portability of the data”. The duration of such period will be determined by the parties
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• Upon request of the Adopter, and at its expenses, the Provider shall transfer the data to the Adopter or to any third party provided by the Adopter within an agreed timing (“Transfer Period”)
• Once the Retrieval Period and the Transfer Period are expired, the Provider shall destroy the data
Consequences of termination or expiration
Data processing & Processor's Obligations
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• 1. INSTRUCTIONS: • act only on instructions from the controller, unless otherwise required by Union
law or Member State law; in such a case, the processor shall inform the controller of that legal requirement
1. INSTRUCTIONS: Act only on controller's instructions, unless otherwise required by EU law or Member State law; if so, the processor shall inform the controller of that legal requirement
2. AUTHORISED STAFF:Employ only staff committing themselves to confidentiality or under a statutory obligation of confidentiality
3. SECURITY : • Take all technical and
organizational measures; • assist the controller to determine
measures • Processor's obligation to alert
controllers in case of data breach (parameters to be defined)
4. SUBCONTRACTING:•Enlist another processor only with prior permission of controller (or upon a pre-set conditions for enlisting)•impose same obligations to other processor by way of a contract or other legal actProcessor fully liable to the controller
5. DATA RETURN• return (and/or delete) all
results to the controller at the end; • do not repurpose
6. COOPERATION:• Provide the controller with
information to demonstrate compliance
• allow on-site inspections• assist the controller in
complying with the exercise of the data subject rights
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In a nutshel SLALOM Legal Model Terms aim creating a set of cloud computing terms
and conditions commonly agreed both by cloud providers and cloud adopters to be adapted to the cloud computing contract, case by case.
Inputs on the SLALOM Legal Model Terms (and the Model SLA) both from the provider's and the adopter's perspective will help achieving appropriate balance between opposed interests (e.g. liability) or tailored covenants on legal areas of common interests (e.g. data protection)
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Any questions ?
Should you have any question,please ask or feel free to email your questions to:
- [email protected] (SLALOM Project Coordinator)
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SLALOM is a CSA financed by European Commission under Grant agreement 644270
For more information on the initiative contact us:
@CloudSLAlomwww.SLALOM-Project.eu
SLALOM Project Coordinator ([email protected])