The spread of COVID-19 and social distancing are nudging many employers to transition to full or close-to-full remote workforces at lightening speed. Technology is a necessary connector, especially in these times, and there are issues for organizations to consider for their tech contracts.
Gowling WLG Focus
Whether you are beginning your transition to a remote work force or expanding your remote tools, your organization will have its own unique constellation of organization-provided devices, other hardware, software, cloud solutions, and possibly employee- and contractor-supplied devices as well. As you build out your particular configuration, here are 5 key considerations for tech contracts* to help you manage your various service providers alongside your organization's legal, regulatory, and corporate policy obligations.
1. What requirements apply to information being shared?
Privacy and other laws, corporate policies, industry standards, and your existing contractual obligations to third parties may impose restrictions or requirements on how you handle information, requirements to keep that information secure, as well as where, how and with whom you can share it. If your business activity is itself regulated or if you are a regulated entity, additional requirements may also apply. Your technology contracts as well as your remote work policy will need to reflect these requirements.
2. What information will be exchanged and who will it belong to?
Be clear as to what personal information, confidential information, or intellectual property is being shared or collected in your new arrangement, and who will have what rights to this information and intellectual property during and after the term of your technology contract.
3. What system-related obligations will you have as a user of the technology?
For example, software licensors and cloud providers may require you to maintain certain minimum system requirements (i.e., hardware and other software). Consider whether and how your new remote work arrangement will meet these requirements.
4. Will the technology work when you need it to work?
Cloud providers often have downtime for scheduled and emergency maintenance. Consider if these times are compatible with your work hours. Ensure that your applicable force majeure provisions do not include events that would capture COVID-19.
5. Will the technology meet the needs of your work force?
There may be limits on the number of licenses, users, or other usage metrics, or geographic restrictions, in your technology contract. Consider if your new contractual arrangements meet your needs and have enough flexibility and visibility on pricing for you to have the usage you need, now and in the foreseeable future. If you already have agreements in place, they may need to be amended to accommodate the needs of your remote workforce.
*The above key issues are limited to those that are unique to technology contracts of this nature. Our Technology Group would be pleased to assist you in respect of all commercial arrangements required to implement or expand your remote work strategy.