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Contributions by Fieldfisher

19

Contract localisation
Practice notes

This Practice Note identifies changes to foreign business-to-business contract terms typically required to ‘localise’ them for use in the UK under English law and, conversely, the terms that typically need to be reviewed if English law business-to-business contract terms are to be adapted for use in a different jurisdiction. In this context, it focuses on common commercial terms in IT contracts, general English law localisation issues, common law implied terms, statutory controls on contract terms and some common issues with English law doctrines and convention.

Corporate transactions for IT lawyers
Practice notes

This Practice Note covers issues in a corporate transaction with which IT lawyers should be concerned, chiefly at the due diligence stage, but also at transition. Issues that may arise include whether the target has the necessary rights to the software and hardware, whether appropriate agreements are in place for networks and services such as the cloud or software as a service, and which warranties should be obtained.

International transfers of personal data under the DPA 1998 [Archived]
Practice notes

This Practice Note has been archived and is not maintained. It provides information on the position under the Data Protection Act 1998 (DPA 1998). It is for background information only.

Model Clauses under the DPA 1998 [Archived]
Practice notes

This Practice Note has been archived and is not maintained. It provides information on the position under the Data Protection Act 1998 (DPA 1998). It is for background information only.

Outsourcing—exit
Practice notes

This Practice Note examines the issues commonly arising on exit when an outsourcing arrangement comes to an end.

Restrictions on competing with the franchise
Practice notes

This Practice Note sets out the restrictions that a franchisor typically imposes on a franchisee in order to protect the franchisor’s business, including use of the franchisor’s confidential information, obligations not to compete with the franchisor’s business (restrictive covenants), no poaching provisions, severability and enforceability of restraints, and practical guidance on drafting restrictive covenants.

Service levels in outsourcing
Practice notes

This Practice Note focuses on the key issues to consider when structuring service levels and remedies for failure to achieve these in outsourcing and other IT services contracts. When drafting service level agreements (SLAs), relevant considerations will include the type of service level(s), what to measure, cost and quality, outcomes and outputs, how service levels are measured, service credits and other remedies, earn back and performance bonuses and changes to service levels during the contract term. The specific measurements and metrics used in SLAs will depend on the type of IT services, eg hosting, data communications and hardware maintenance.

Software escrow
Practice notes

This Practice Note examines the key issues relating to the use of escrow arrangements for commercially sensitive materials relevant to software design (ie source code). It focuses on the reasons for source code escrow and provides specific guidance about escrow agreements, software as a service (SaaS), escrow agents and insolvency.

System development and systems integration agreements
Practice notes

This Practice Note explains the key issues relevant to agreements governing IT systems development and systems integration projects. It suggests different ways of approaching systems integration and development projects and includes a checklist of key contract terms.

The EU’s General Data Protection Regulation (EU GDPR)
Practice notes

This Practice Note is an introduction to the General Data Protection Regulation, Regulation (EU) 2016/679, which is more widely referred to as the GDPR and referred to in this Practice Note as the ‘EU GDPR’ to distinguish it from the UK GDPR. The Practice Note provides an overview of the conceptual changes and the changes in regulatory oversight and additional obligations for organisations which were implemented by the EU GDPR. The Practice Note concludes with suggestions on how organisations can plan EU GDPR compliance activities.

The franchise agreement
Practice notes

This Practice Note considers the principal matters a franchise agreement should address including clarity over the rights to be granted to the franchisee and the relevant territory, whether the franchise can be granted on an exclusive basis, ensuring full consideration is given to the sales targets and development plans, the licensing of intellectual property rights and availability of trade names and domain names. The Practice Note also highlights the importance of a well drafted manual and the key areas a manual should cover.

Franchise agreement—exclusive
Precedents

This Precedent franchise agreement—exclusive is for use when a franchisor wishes to appoint a franchisee to sell its goods or services in a particular territory on an exclusive basis. This Precedent is an exclusive franchise agreement meaning that the franchisor is restricted from appointing additional franchisees into the territory and is also restricted from operating in the territory itself. A franchise agreement is not a distributorship or agency; a franchisee (re)sells goods or services under a proven business method developed by the franchisor, and whose sales success is proven. The franchisee, like a distributor, is an independent trader who invests his own funds in the franchise. See also Franchise agreement—non-exclusive and Master franchise agreement.

Franchise agreement—non-exclusive
Precedents

This Precedent franchise agreement—non-exclusive is for use when a franchisor wishes to appoint a franchisee to sell its goods or services in a particular territory on an exclusive basis. This Precedent is a non-exclusive franchise agreement meaning that the franchisor is able to appoint additional franchisees into the territory and may also operate in the territory itself. A franchise agreement is not a distributorship or agency; a franchisee (re)sells goods or services under a proven business method developed by the franchisor, and whose sales success is proven. The franchisee, like a distributor, is an independent trader who invests his own funds in the franchise. See also Franchise agreement—exclusive and Master franchise agreement.

Master franchise agreement—exclusive
Precedents

This Precedent master franchise agreement is for use when a franchisor appoints a master franchisee who will in turn appoint sub-franchisees to sell the franchisor’s goods in an identified territory. The appointment of the master franchisee by the franchisor is on an exclusive basis. The master franchisee will grant individual sub-franchises to selected sub-franchisees. The master franchisee and the sub-franchisees will sell goods or services under the business method developed by the franchisor, whose sale success is proven. See also Franchise agreement—exclusive and Franchise agreement—non-exclusive.

Termination letter—franchisor to franchisee
Precedents

A template termination letter for a franchisor to use when terminating a franchise agreement with a franchisee.

Other Work
IT services agreement (customer friendly)—checklist

This Checklist sets out the key terms in an IT services agreement. It includes the key terms that a customer should consider when contracting with a supplier for both implementation and operational IT services.

Software licence—checklist

This Checklist is aimed primarily at customers (licensees) entering into agreements to license standard software. It is intended to give an overview of the key terms usually found in an agreement granting a software licence and highlights key issues to be covered when reviewing a supplier’s terms for the licence of commercially-available packaged software.

Contributions by Fieldfisher Experts

32

Compensation payments made by banks—non-deductibility and notional trade receipt
Practice notes

This Practice Note explains the rule that prevents banking companies from claiming tax deductions for compensation expenses and adds a sum equal to 10% of the non-deductible compensation expense to the relevant banking company’s taxable profits. This Practice Note has been produced in partnership with Andrew Loan of Fieldfisher LLP.

Cybersecurity breach notification requirements
Practice notes

This Practice Note provides an overview of the laws and regulations relating to cybersecurity, examining the entities that are required to comply with such rules, their security obligations, the notification requirements in the event of a breach, and the consequences of failing to comply. It also contains practical guidance on what it takes to be cybersecurity breach ready and managing a cyber attack.

Environmental claims in advertising
Practice notes

This Practice Note summarises the principal controls surrounding the use of environmental claims in advertising and covers the following key areas: overview of environmental claims in advertising, the relevant legislation, the self-regulatory codes and sanctions for non-compliance.

Estoppel—the key cases for pension lawyers
Practice notes

This Practice Note looks at the leading cases on how and when to apply the doctrine of estoppel in occupational pension scheme relationships. The cases include Amalgamated Investment v Texas Bank, Icarus v Driscoll, ITN v Ward, Redrow v Pedley and Steria v Hutchison.

FATCA in the UK—funds and the UK:US IGA
Practice notes

This Practice Note provides a broad overview of the application of FATCA to fund structures in the UK. It considers the position in the UK under the Intergovernmental Agreement (IGA) between the UK and the US (the UK:US IGA) and The International Tax Compliance Regulations 2015, SI 2015/878. This Practice Note is produced in partnership with Andrew Prowse of FieldFisher LLP.

FCA regulation of claims management companies—essentials
Practice notes

As from 1 April 2019, the Financial Conduct Authority (FCA) is the regulator of claims management companies (CMCs) established or serving customers in England, Wales and Scotland. At the same time, the Financial Ombudsman Service has responsibility for resolving disputes about CMCs. This Practice Note discusses the background to the transfer of the regulation of CMCs from the Claims Management Regulation Unit within the Ministry of Justice to the FCA, the FCA’s authorisation process and supervisory approach to CMCs, and the parts of the FCA Handbook applicable to CMCs.

Governance, systems and controls requirements for insurers
Practice notes

This Practice Note deals with the requirements on UK insurers concerning governance, risk management, systems and controls and suggests that these topics are approached in a holistic manner in the framework of the applicable rules and regulations. The note goes over the roles of the Prudential Regulation Authority (PRA) and the Financial Conduct Authority (FCA). The applicable rules and regulations include, the Financial Services and Markets Act 2000 (FSMA 2000), the PRA Rulebook and in particular, the Conditions Governing Business section for Solvency II firms; the Governance section for Non-Solvency II firms; the PRA Fundamental Rules, the Senior Management and Certification Regime (SM&CR) and the European Insurance and Occupational Pensions Authority (EIOPA) Guidelines on System of Governance.

Making a complaint to the Pensions Ombudsman—what is involved?
Practice notes

This Practice Note covers what scope there is for making a complaint to the Pensions Ombudsman (PO), including the persons eligible to apply to the Pensions Ombudsman to make a complaint, the type of matter that can be referred to the Pensions Ombudsman, steps that must be taken before a complainant can apply to the Pensions Ombudsman (ie going through a scheme’s internal dispute resolution procedure), the time limits to complain. It also looks at the steps involved in dealing with the complaint (ie the complainant’s application, the respondent’s response, the investigation and the determination), enforcement issues and appeals.

Open data
Practice notes

This Practice Note deals with open data and broadly describes what open data is. It examines the importance and history of open data, the UK regime for re-use of public sector information (PSI), how open data is accessed technically, legal issues with open data, Creative Commons and other standard open data licences, issues for licensees, and what’s on the horizon.

Pension issues on a takeover—Takeover Code requirements
Practice notes

This Practice Note focuses on the pensions aspects of the City Code on Takeovers and Mergers and explains the pensions issues which arise on a transaction to which the Code applies.

Admission Agreement
Precedents

This is a precedent Admission Agreement for participation in the Local Government Pension Scheme (LGPS) and has been drafted on a broadly neutral basis. As the LGPS is a series of separate schemes established under the same legislation, the Agreement needs to relate to the specific local authority pension scheme involved in the particular transaction.

Deed of termination of franchise agreement
Precedents

This Precedent is a deed of termination for a franchise agreement under which the parties to an existing franchise agreement mutually agree to terminate that agreement prior to its anticipated end-date, which may be as a result of the sale of the franchise business by the outgoing franchisee to a new incoming franchisee or by mutual consent. This deed of termination is drafted on the assumption that there is no dispute between the parties relating to their rights and obligations under the existing franchise agreement.

Franchise business sale agreement
Precedents

This Precedent is a franchise business sale agreement for use by an outgoing franchisee selling the business and assets of its existing franchise (the seller) to a new incoming franchisee (the buyer) and the principal franchisor. It is drafted from the perspective of the franchisor.

International franchise development agreement
Precedents

This Precedent International franchise development agreement is intended for use where a franchisor wishes to appoint a franchise developer to sell/open units/stores and sell products/services in a particular territory. A franchise developer opens stores and (re)sells goods or services under a business method developed by the franchisor, and whose sales success is proven. This Precedent is for the development of an international franchise business model and is drafted with a franchisor bias.

Personal data transfers between the EEA and UK—sub-provision for standard contractual clauses to apply if no adequacy
Precedents

This precedent contains templates designed to be inserted as additional commercial provisions into the clauses for international transfers of personal data adopted by the European Commission (commonly called the standard contractual clauses or Model Clauses) in order to provide that the executed standard contractual clauses will apply: (a) if the UK exits the Brexit transition (or ‘implementation’) period without an adequacy decision that generally permits continued transfers of personal data from the European Economic Area (EEA) to the UK; or (b) if following the end of the Brexit transition period the UK ceases to allow unrestricted transfers of personal data from the UK to the EEA.

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