information technology, domain names and e-commerce

escrow agency

The development of bespoke software has exposed software licensees to the risk of non-performing, inadequate and defective software. In order to address any problems or to update the compiled software, access is needed to the programming source code. In most instances, the source code remains the property of the developer who may in the interim, prior to the discovery of any faults or defects in the software, become bankrupt, sell the source code, or only allow access to the source code for exorbitant sums of money.

To counter this risk, the developer and licensee enter into an escrow agreement, whereby the source code is deposited with an escrow agent as a neutral third party. The escrow agent is empowered to release the source code to the client should certain prescribed criteria be met. The prescribed criteria are naturally detailed in the escrow agreement. The licensee is therefore assured that it will have access to the source code in the event of any default by the developer, thus protecting its investment in the bespoke software.

litigation

The IT law department is involved in the protection, enforcement and management of copyright, trademark and patent rights used in association with E-commerce and other IT applications. A particularly active field of practice relates to the opposition of unauthorized Internet domain name registrations.

The IT law department has had extensive involvement in addressing the unauthorized use of trademarks and copyright on Internet web sites, and has successfully dealt with multi-jurisdictional problems normally associated with the laws applicable to the Internet. Of particular note is the department's successful involvement in the SANLAM.COM and NANDOS.COM international domain name oppositions, being the first of its kind launched from South Africa.

The continual growth of electronic commerce has also brought with it problems relating to unlawful competition and passing-off. The unauthorized use of metatag content, framing and hyper linking and deep linking on Internet web sites, has necessitated a new approach in the application of law.

Finally, the IT law department is well positioned in skill and expertise to address commercial and litigious issues relating specifically to E-commerce.

due diligence exercises and corporate reports

As part of larger due diligence exercises, or as part of a specific corporate report, the E-Commerce law department has the necessary technical skills and expertise to conduct and formulate audits relating to IT infrastructure and E-Commerce applications.

As part of an IT or E-commerce due diligence exercise we endeavor not only to report on the status quo of an existing IT infrastructure, but also to make constructive suggestions on how to improve on the legal and possibly the technical aspects of the infrastructure.

Particular attention is dedicated to:

• Hardware
• Software
• Networking arrangements
• Commercial arrangement (including terms and conditions)
• Internet presence
• Intellectual Property (Trade Marks, Copyright and domain names) and
• Matters regulating IT usage amongst staff, and the possible vicarious liability of the employer

We continually assess the above against the legal principles of Intellectual Property law and the laws relating to delict and contract.

providing advice and drafting of opinions

We advise clients on the relevant laws applicable to IT. Of particular importance is advice to clients on their rights and obligations in relation to software, with specific reference to the ownership and authorship and licensed users of software applications.

We also advise clients of legislation and regulations pertaining to the use, importation and licensing of E-commerce applications in South Africa. The department also advises clients on matters relating to Domain Name registration, administration, maintenance, transfer and litigation.

commercial

The reintegration of South Africa into the international economy has meant that there has been an increase in the exchange of IT both into and out of South Africa. The E-commerce Law department assists clients in setting up suitable agreements for the transfer and use of technology over geographical borders. We also assist local clients with matters relating to IT licensing, assignment and maintenance agreements.

Our department is suitably qualified to assist clients in establishing a legal infrastructure for electronic commerce. The emphasis is to advise clients on the legal principles and implications applicable to multi-jurisdictional transactions, and therefore to ensure the legal enforceability of these transactions.

regulatory issues

An important function of the IT Law department is to assist technology clients in obtaining the necessary regulatory approval. In particular, we assist clients in obtaining Telecommunication licenses from the South Africa Telecommunications Regulatory Authority (SATRA) relating to Value Added Networks (VANs) and Private Telecommunication Networks (PTNs)