Canadian Lawyer InHouse

12 www.canadianlawyermag.com/inhouse FEATURE RAPID ADVANCEMENTS in technology are creating exciting opportunities for many businesses. New payment technologies will allow for instant transfer of funds and settle- ments of payments and give rise to innovation opportunities for financial institutions. Many companies are also taking advantage of the rapid acceleration in cloud technology which allows them to meet all their storage needs securely and cost-effectively. However, these evolving technologies are not without risks, so legal departments must do due diligence to cover all bases. Cloud technology Cloud technology raises multiple contracting and other legal challenges for legal depart- ments. According to Robert Percival, a technology law partner at Blake Cassels & Graydon LLP, "one-size-fits-all" terms and conditions can often create problems when they do not align with corporate policies. "For in-house counsel, the challenge is trying to get the software provider that you're dealing with directly to move on certain points because it's already stuck with the terms of its upstream contract with the infrastructure provider," says Percival. Service contracts may appear relatively short, but there are often links to supporting terms and conditions, which can sometimes permit the service Evolving technologies facilitate growth but present new risks to businesses Lawyers speak to Lucy Saddleton about data protection and contractual issues surrounding cloud solutions and payment technologies provider to change the terms and conditions unilaterally without notice and consent. These changes create a significant risk to the user, Percival says. "If anything does go sideways and it's the fault of the service provider, your recourse is going to be significantly restrained by the liability terms," he says. Larger organizations used to dealing with more traditional technology service providers often get frustrated when providers reject their request for changes to the cloud contract. In-house counsel examining contracts for cloud providers would be advised to target specific concerning issues rather than red-line the entire agreement, Percival says. While you may not prevent unilateral changes to terms and conditions, it may be worth exploring the option to put guardrails around how that change can occur. "Thinking a little bit strategically about how to approach these issues may give you the ability to negotiate some of these things," says Percival. Data security is another primary concern because agreements with cloud providers often allow for the aggregated use of data, creating sensitivities. Jurisdictional concerns can be complex with cloud technology when companies use servers in different parts of the world. In-house counsel may face challenges in creating compliant contracts, so a keen understanding of the digital platform and local law is necessary. Percival anticipates a continued evolution of cloud technologies, which will bring new levels of risk to businesses. "Technology is a funny thing because it often makes our lives a lot easier, and it makes business a lot easier, but it's complex and figuring out what's going on and asking the right questions is part of the challenge," he says. "Building trust in the system will be a key challenge to ensuring Canadians feel confident in using [Real-Time Rail]." Cindy Cross, Interac Corp.

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