OK, so we all know how difficult it is to draft a good contract, don't we? Sometimes, absence of specialist help can prevent us from getting started, leaving us completely unprotected.
Well, dear reader, take heart. This weekend, my children successfully negotiated a deal that will earn them pocket money in exchange for some light domestic duties.When we'd struck our deal, my son said 'OK Mum, now we need to write the contract.'
Strange, I know, but that's what comes of having a mum who does what I do!
So how can the noble art of contract drafting be distilled to a level where a nine year old and a five year old can understand it? Simple, really (well, it would have to be, wouldn't it?!).
First, I explained the three critical questions that must be answered before you start:
1. who does what, when?
2. when do we get paid (and how much)?
3. what happens when things go wrong?
Then they set about answering these questions, one at a time. Under the first point they listed their respective tasks. Under the second, they set out how their pocket money was calculated, and what things could increase or decrease the amount paid to them. In the third, I asked what might go wrong with their tasks?
Albert, nine, is responsible for clearing the table after meals and loading the dishes in the dishwasher. 'What if the dishwasher's already full?' he asked.
'What do you think should happen?' I replied.
'I could stack the dishes on the side, or in the sink?' So, we added a provision saying exactly that. Evie, five, asked what happened when they had school lunches - did she have to set the table for all 100 school children? So we clarified that they only had to do their meal-time duties at home, although we thought it was a good idea if they offered to help when eating at a friend's house.
So there you go. Contract drafting for beginners. Answer the three questions above, and you'll be covering your most important bases. If you get stuck, ask your kids for some help - you'll find they're great at asking direct and probing questions that will enable you to get to the nub of things. And, if nothing else, it will give you a great basis for briefing your lawyer!
Monday, February 19, 2007
Friday, February 09, 2007
Personal Data: Off site, out of mind?
Being connected to a call centre in Bangalore when you call your UK bank or insurance company no longer comes as a surprise, in our increasingly global economy. Similarly, hosting your marketing database on a server in the US, or signing up for an ASP service provided from Australia seems ‘business as usual’.
But if your activities mean that personal data capable of identifying individual people in the UK or elsewhere in the EU is accessible outside of the EU then you have responsibilities under the Data Protection Act 1998.
So what does ‘accessible’ mean?
It means that the data can be viewed, downloaded or processed:
• by other clients or members of the public on a web site;
• by your hosting provider; or
• by third parties providing software support or services
How can you ensure you are protecting personal data in accordance with the Act?
First, whether your data is being processed inside or outside the EU you need to have a contractual commitment from the offsite company that they will comply with the ‘Seventh Data Protection Principle’. This means that they will use appropriate physical and operational security measures to prevent unauthorised access to or usage of your data.
If the third party is outside the EU, you need to take extra precautions to protect personal data. There are a variety of measures that can be considered, depending on where they are and what business they're in. These include:
• obtaining explicit consent from each data subject to the transfer of their data outside the EU; and/or
• signing a ‘model contract’ with the third party, approved by the Information Commissioner, that commits them to certain data protection obligations; and/or
• getting the third party to subscribe to 'Safe Harbor' provisions, if they are in a regulated industry in the US.
There is little case law in this area, and each situation needs careful consideration on its merits. So if you’re considering off-shoring or outsourcing any part of your business, be sure to take advice before signing on the dotted line!
But if your activities mean that personal data capable of identifying individual people in the UK or elsewhere in the EU is accessible outside of the EU then you have responsibilities under the Data Protection Act 1998.
So what does ‘accessible’ mean?
It means that the data can be viewed, downloaded or processed:
• by other clients or members of the public on a web site;
• by your hosting provider; or
• by third parties providing software support or services
How can you ensure you are protecting personal data in accordance with the Act?
First, whether your data is being processed inside or outside the EU you need to have a contractual commitment from the offsite company that they will comply with the ‘Seventh Data Protection Principle’. This means that they will use appropriate physical and operational security measures to prevent unauthorised access to or usage of your data.
If the third party is outside the EU, you need to take extra precautions to protect personal data. There are a variety of measures that can be considered, depending on where they are and what business they're in. These include:
• obtaining explicit consent from each data subject to the transfer of their data outside the EU; and/or
• signing a ‘model contract’ with the third party, approved by the Information Commissioner, that commits them to certain data protection obligations; and/or
• getting the third party to subscribe to 'Safe Harbor' provisions, if they are in a regulated industry in the US.
There is little case law in this area, and each situation needs careful consideration on its merits. So if you’re considering off-shoring or outsourcing any part of your business, be sure to take advice before signing on the dotted line!
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