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Be Exacting in Addressing Data in Agreements

Data is likely a component of most every transaction.  Be exacting in how the agreement deals with the ownership and use of that data, whether negotiating the use of digital services, a license, or a purchase of assets.  One or all parties will likely own or generate data in its operations, and most data can be harvested for some economic benefit.  Agreements should determine who has access to the data, who has the right to use it, how it can be used by each party and downstream third parties, who initially owns it, and who owns newly created, collected or synthesized data generated over the course of the relationship.  If the data is shared, the agreement could contemplate where it is stored, who has access and passwords, and how revised data is made available to all with rights to it.  Consider if anonymized data should be treated differently.  If the data is confidential, it should be included in the confidentiality section, and often should be deemed a trade secret, so it survives termination of any particular confidentiality provisions.  If data is collected from third-party sources, be sure the Terms and Conditions of the source allow use intended by parties to the agreement.  A recipient may want representations that the receipt and use of data will not infringe on any third-party’s rights.  If there are other special aspects of the data, address them specifically, such as if the data is related to financial information, health, or is personally identifiable information. 

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com