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Last week MoneyConf firmly put Dublin in the Fintech spotlight. The pressure on financial services firms to make better use of technology to reduce costs and improve customer service shows no sign of relenting. At the same time they need to carefully navigate the related regulatory challenges around technology outsourcing. A member of the ECB Supervisory Board recently observed that banks are not “technological houses” and said that the fragmentation of banks’ services across a range of external providers creates a “challenge” for banks’ leaders, who retain responsibility. This statement will resonate, in particular, with financial institutions looking to understand how much they are currently using, and how they can make more and better use of, cloud based technology solutions.

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Those involved in technology deals express differing views on source code escrow. These views range from resignation that the supplier won’t agree to it to the view that even if we do get it, it will only be available on the provided non-negotiable terms or a fear that even if we could get our hands on the code, we wouldn’t know what to do with it. In our experience, the position is not quite as black and white on any of these points. There is an extra aspect to think about in relation to technology offerings which include software as a service and traditional source code escrow may not always be appropriate here. Public disputes on escrow arrangements are few and far between and that’s why a recent English High Court case is worth a read. The decision in the case, Filmflex Movies Limited and Piksel Limited can be accessed here.

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The political machinations continue at EU level and predictions for publication of a final form Data Protection Regulation increasingly refer to 2016 as the likely date. But to read behind the headlines continues to be a useful exercise for corporates who need to give real consideration now to what their regulatory landscape might look like in the not too distant future.

A key issue will be determining the place of “main establishment” which in turn will determine the appropriate lead authority.

If that isn’t clear, or there is disagreement, it is being proposed that an EU Data Protection Board (EDPB) would have power to make a binding determination.


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There has been much debate during 2014 about the effectiveness of the US Safe Harbour regime. Many EU commentators have queried its effectiveness, pointing in particular to the lack of enforcement over the years by the Federal Trade Commission (FTC), the body which effectively is charged with dealing with complaints that companies are not in compliance with their public representations of adherence to the Safe Harbour principles.

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Audit provisions are a common feature of a wide range of IP and technology agreements. They can be seen by those seeking the audit right as a practical way to monitor key aspects of a commercial deal. Security standards being applied to data, accuracy of billing, compliance with licence restrictions or, in some cases, general