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A Guide to IT Contracting by Michael R. Overly, Matthew A. Karlyn

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Data Agreements
CHECKLIST
Key Contractual Protections
Include basic contractual protections common to all technology
agreements
S Condentiality
S Limitation of liability
S Termination rights
Ensure the scope of the license is broad enough to include all
intended uses, both those existing at the time the contract is
signed and reasonably anticipated in the future
Pre-negotiate fees for increasing the scope of the license
Avoid overreaching audit rights
S Limit frequency of audits
S Limit the type of records that can be reviewed
S Limit the duration of the audit
S Include protections relating to third party audits (e.g., require
auditors to sign an NDA and to be mutually agreed upon by
the parties)
S Limit costs recoverable for third party auditors
S Reject requests from the vendor to recover internal personnel
costs
Warranties
S Rights to grant the license
S e vendor has no knowledge of infringement claims
S Reasonable eorts to ensure timeliness and accuracy of data
S Reasonable eorts to notify the customer of known errors in
the data
Include an indemnication against infringement claims based
on the customer’s licensed use of the data
296  •  A Guide to IT Contracting: Checklists, Tools, and Techniques
Negotiate broad termination rights, including termination for
convenience, wherever possible
e contract should specify the manner and format of delivery
for the data
e customer should ensure it has the unilateral right to renew
the contract for at least a few years
e agreement should include price protection for the initial
term and rst few renewal terms
OVERVIEW
Data or data feed agreements are a special type of license agreement that
involves access to a collection of data. at data is typically harvested by the
vendor from various public sources. e data can relate to mapping data
for real estate–related transactions, market data relating to the nancial
markets, data gleaned from public records (e.g., real estate transactions,
business licenses, marriage licenses), or aggregated data harvested from
user interactions with websites or search engine requests. e common
thread is that the data is generally not created by the vendor, but merely
collected or harvested from various public sources and then licensed as a
package. In many instances, the vendor may have invested extraordinary
time and money in creating the database.
Data agreements present unusual contracting issues. First, the vendors
generally insist on using their own form agreements. Second, they also
strongly resist any substantive revisions to those agreements. Finally, the
data being licensed is normally provided on essentially an as-is and as-
available basis, without warranties of any kind.
KEY CONTRACTUAL PROTECTIONS
Given the foregoing challenges, this chapter discusses the revisions that
can generally be negotiated with these types of vendors:
• Basic Contract Protections. Certain protections should be con-
sidered regardless of type of technology contract. ese provisions

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