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Data monetisation: checklist of the key contractual considerations

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Ancenys Laurie-Anne
Laurie-Anne Ancenys

Counsel

Paris

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Van Elsen Filip
Filip Van Elsen

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Antwerp

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Ford Jim
Jim Ford

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London

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Dr Ulrich Baumgartner

Partner

Munich

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28 January 2020

Many businesses are contracting with a range of data and AI providers to deliver their data monetisation strategies. But do you have a playbook for these contractual arrangements? Are your contracts consistent? Have you incorporated the necessary contractual protections and rights? 

Ask the following questions to determine what contractual protections and rights might be required:

  • What is the deal structure?
  • What are the objectives of the deal?
  • What rights and obligations will the counterparty have over your data?
  • What rights and obligations will you have over the counterparty’s data?
  • What restrictions will there be on the use/disclosure of the data by each party?
  • Who are the key stakeholders?
  • What data sets are involved?
    • Who owns the data?
    • Is it confidential?
    • Is it valuable?
    • What background data is there? (pre-existing data)
    • What foreground data is there? (data that is developed over the lifetime of the project)
    • What are the data flows?
    • How is the data currently used?
    • Does the data have value beyond the organisation?
    • Where and how is data stored?

  • What publication rights might parties want?
  • What security requirements are there for the data?
  • What is the accuracy and consistency of the data? What is the integrity of the data?

Ways in which you can achieve contracting consistency:

  • Build a menu of possible contractual protections
  • Create flowcharts and decision trees
  • Use scorecards to assess contractual risk prior to signing a contract
  • Establish guidelines setting out preferred and prohibited contracted positions
  • Have drafting options for data-related clauses – clause books
  • Produce a central repository of deal precedents considered to represent best practice

Menu of contractual protections - leading to a more consistent contracting approach

Ownership/use of data 

  • Clear statements
  • Clear licences/permission to use
  • Assignments
  • Exclusivity

Restrictive covenants

  • What data can and cannot be used for?
  • Who can access and re-use the data?
  • How can users access the data?

Technical issues

  • Security obligations
  • Segregation obligations
  • Format requirements
  • Data storage
  • Data portability
  • Audit

Confidentiality

  • Security obligations
  • Segregation obligations
  • Format requirements
  • Data storage
  • Data portability
  • Disclosure restrictions

Interplay with financial provisions

  • Should any future use of firm’s data trigger financial upside?
  • Financial business model

Governance

  • What is the nature of the data (personal/confidential)?
  • How will the data be used?
  • Are there restrictions on commercialising the data?

Liability and indemnity

  • Limits and caps on liabilities
  • Indemnity resulting from partner’s breach

Termination

  • Rights
  • Data return/retention
  • Impact on data originally provided
  • Termination cases

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