Technology, digitalisation and telecom

There is a range of different standard agreements for ICT procurements within the Norwegian market. We have had key roles in the drafting of the standard agreements from the Norwegian Government and ICT Norway, including several other standard agreements for use by individual businesses or trade associations within the ICT sector. Føyen’s lawyers also played a key role in relation to the revision of the Norwegian Government’s standard agreements in 2014-2015 in cooperation with ICT Norway, the Norwegian Agency for Public and Financial Management, and the Ministry of Local Government and Regional Development, with the aim of creating more balanced standard agreements in addition to the establishment of a new SSA-L in 2018. We also gave important input to the drafting of SSA-Cloud in 2021.

Føyen assists with all kinds of IT agreements and procurements such as:

• Purchase and integration of hardware
• Licensing and maintenance of standard software
• Implementation of standard software with development and customization of systems for ERP, CRM, WMS, economy, etc.
• Development of software based on different methods, ranging from agile to waterfall
• AD AM
• Operational services and outsourcing (inc. BPO agreements)
• Alliance agreements, distribution agreements, partner agreements, sub-supplier/back-to-back agreements, and cooperation agreements
• Development and operation of telecommunication networks and other infrastructure

We regularly assist with the entire procurement process, from preparing the procurement strategy, having dialogue with the market, drafting the procurement documents including the contract, negotiations, evaluation, and award, to assistance with potential complaints in public procurements.

More than half of the Norwegian market for ICT services consists of supplies to public bodies. The laws and regulations regulating such public procurements are complicated and include a range of provisions that must be assessed on a case-to-case basis. Our in-depth knowledge of public procurements has been built up through assistance to several different actors over the past decades.

Our ICT Media team regularly assists public actors in procurement processes, especially when the procedure is purchase after negotiations or competitive dialogue. The laws and regulations are discretionary and complex, and legal supervision on the procurement process is needed to ensure a best possible commercial result while at the same time complying with the procurement laws and regulations.

We have lawyers with long experience from both public and private sector in relation to procurement processes. We work interdisciplinary, partly with resources from the ICT Media team and partly with resources from our procurement team, to ensure the best possible advice in these processes. It is important to apply the procurement regulations in a way that enables good dialogue with the suppliers throughout the process, so that the contract can be drafted and negotiated to achieve a best possible commercial result. When drafting a contract, we pay special attention to making it relevant to the procurement and balanced. This reduces the risk for reservations in the offers and the negative consequences this may have for the procurement. A good procurement forms basis for a best possible commercial result!

We also assist suppliers of technology solutions and services with the submission of offers in public procurements and give advice on strategic positioning related to the procurement laws and regulations, assistance with contract assessment, input on questions that should be posed (to impact the draft contract etc.) instead of making reservations which may lead to rejection, support in the negotiations, assistance with complaints and requests for information, etc.

The increase in use of cloud services has been enormous over the past years, as a result of the strong development of the digitalisation within both public and private sector. The legal, regulatory, and security related issues are to a large extent the same no matter the service or supply model such as SaaS, IaaS, PaaS or hybrid solutions.

We assist both public and private actors with purchase and procurement of cloud services. From the customer perspective, long and complex terms and conditions from the cloud service provider are often a challenge, because it makes it difficult to understand which rights and obligations that apply. We regularly work with such agreements and have the experience and knowledge required to communicate the content to our customers in an easily understandable manner and to identify provisions that should be considered negotiated. For many cloud services agreements, especially SaaS, it is also important to have control of the license terms.

Apart from the regular tasks related to analyzing and negotiating terms of service and considering privacy concerns, we also advise on the legal framework conditions for use of cloud services, and we have experience with how to comply with relevant laws and regulations. This can for example be the GDPR, security laws, or sector specific requirements such as financial regulatory rules.

We also do a substantial amount of work for cloud service providers, for example with drafting of standard contractual terms. In situations where the cloud service provider is a SaaS supplier using one of the major, global platform providers for operation of its own application, we provide guidance on different resale models, how the applicable platform provider’s standard terms must be considered in own standard terms etc.

We also offer extensive advice to companies who distributes third party cloud services, for example related to the responsibilities and rights such distributor has, the pros and cons with different distribution models, and assistance with drafting of standard terms towards the end customer/resale terms.

Company transactions within the ICT and media sector requires knowledge of complicated business models and how value is created, maintained, developed, and realized within the business sector. With our in-depth knowledge of intellectual property rights, technology, and business models, including the relationship between the different actors within the business sector, we can provide specific and tailored advice to secure the values and reduce risk in relation to company transactions and purchase and sale of company assets. We work with tailored due diligence processes where we concentrate on issues of real significance for the company value. Føyen has in-depth knowledge of Norwegian company law and the various company structures. We regularly take on posts as board members and provide strategic advice to actors within the business on a regular basis.

License revisions often entail additional costs or claims for purchase of software that is not really needed. This can be avoided by performing a thorough review of license terms at the time of entering into the agreement, and thorough preparations before license revisions. We assist many customers in such processes. If we are included early in the purchase process, and immediately upon notification of license revisions, this will contribute to significant savings and improvements of the license and maintenance terms.

Software may be protected by copyright. The principle of specialty set out in the Norwegian Copyright Act prohibits the use of software in a way that is not explicitly agreed with the rightsholder. According to case law, an agreement shall always be interpreted in favor of the rightsholder. Therefore, it is important to review the terms and ensure that all necessary rights are expressly included in the agreement.

The terms of software license agreements are usually determined unilaterally by the software providers, which are often major, international actors. When analyzing the license terms, you will almost always identify provisions that are suboptimal from a customer perspective. For example, the right to use the software may not cover subsidiaries, the license and/or maintenance may be terminated by the provider with short notice even if the customer will need time to establish an alternative solution, and the license metrics are so complex that it is difficult to verify the license fee.

We also assist with the analysis of SaaS and IaaS/PaaS agreements, where the contractual structure usually is the same as for traditional license and maintenance agreements.

License agreements normally include provisions on license revision. There are many ways of regulating such revision, and revision could be problematic with regards to security, protection of personal data, or handling of confidential information and trade secrets. If revision is not agreed (and there is a suspicion of abuse), the provider may file a lawsuit or a police report, or take other legal actions such as securing of evidence without prior notice in accordance with the provisions in the Norwegian Civil Procedure Code.

Føyen has extensive experience with assistance related to license revisions. We have in-depth knowledge of licensing models and terms from all the major software providers and have saved our customers for huge amounts in negotiations on the premises and framework for revisions and interpretation of the license agreements.

The telecommunications sector was a monopoly up until the mid-1980s. Føyen’s lawyers have been active with advice on and review of the liberalization of the telecommunications sector from the very beginning, and closely follows the regulatory development towards an increasingly open market with full competition.

We have worked on major projects which include regulatory issues and issues under competition law, questions concerning distribution rights and co-location, commercial contracts, and intercommunication agreements. Further, we have considerable experience with issues related to corporate law, including mergers and acquisitions.

Frequencies for mobile services are a natural resource which is administered by the Ministry of Transport and the Norwegian Communications Authority. It is important for operators to secure the necessary frequency resources in the competitions announced for such resources. Føyen’s lawyers have considerable experience with assistance in relation to the announcement and allocation of frequency resources, and with the negotiation with other actors on the use of such resources. Føyen’s lawyers also have extensive experience with procurement of telecommunications services and infrastructure for the telecommunications sector.

We regularly litigate cases for the regular courts and for courts of arbitration. We also have experience with procedures before various authorities, boards, and similar bodies (for example the Norwegian Complaints Board for Public Procurements, the Mediation Board for Employee Inventions, and the Privacy Board of Appeal). Our lawyers also have considerable experience as arbitration judges.

Føyen assists with dispute resolution related to all kinds of issues within the area of ICT and media, including the challenges posed by securing and handling of electronic evidence. We also have experience with software for sorting and analyzing electronic evidence and documents in legal disputes. In our experience, cases within this business sector are largely dependent on the clarification of facts related to complex and advanced technology. With in-depth knowledge about technological solutions and business models, we are able to handle complex disputes with a knowledge-based and legal approach.