With vision to implement customized solutions

ENSURE QUALITY

Your specialized legal advisor with national and international experience in the technology industry

I have been working as a lawyer at the interface of technology and law since 1987, drafting German/international contracts, arbitration and mediation proceedings, data protection in and for companies. My work is practice-oriented and always with an eye to the economic outcome. I try to solve problems and lead the advice to a business conclusion or to an economically reasonable end of the process.

My areas of expertise are:

  • Contract drafting in business, civil and commercial law.
  • Contracts in trouble: how to move forward.
  • Internet law, platforms, cloud, data and AI, new business models (apps).
  • Implementing the provisions of the Data Act (DA), the Digital Services Act (DSA) and, in the future, the AI Act (AIA) of the European Union internally and contractually.
  • Enforcement of claims for payment or performance.
  • Information about compliance and data protection.

In particular

  • Current: Interactive lectures/presentations on the EU digital strategy; on the Data Act; legal structuring of new business models in e-commerce and IIoT devices / Big Data and AI applications. Legal structuring of new business models in e-commerce and IIoT devices / big data and AI applications.
  • Drafting of German/international contracts, in particular in project business in the fields of IT and Internet, mechanical and plant engineering, electronics and intralogistics systems; from turnkey projects to classic software license and hardware distribution agreements.
  • I have particular experience in the legal management of projects in crisis.
  • Arbitration and mediation, especially in technical matters.
  • Data protection, in particular for new business models and cross-border data transfers.

Languages: German/English business fluent.

To begin with: These issues cannot be addressed without looking at cybersecurity and the protection of trade secrets. If the draft Cyber Resilience Act (as of today: 5/31/24), the EU NIS 2 Directive and the EU Digital Services Act are not mentioned here, these issues are always the background of our legal advice in the “Data and AI” environment.

The EU Data Act came into force in January 2024 and will be applicable from September 11, 2025 in the parts relating to data use. In preparation, manufacturers and related service providers (“data owner”) that collect data from their B2B customers (“users”) via devices will need to enter into data license agreements. It is also necessary to prepare for the transfer of data collected by data owner at the request of users. What data can users request from the data owner? Is there a need to protect the data owner’s own trade secrets? Can the data owner limit the scope of the data to be extracted? How will a data owner handle the user’s transfer of data to third parties that may be competitors? What needs to be planned in the development of machines, devices or even associated services to meet the requirements of the Data Act?
And conversely, what data can the user request and use internally or via contracted third parties, e.g. to avoid becoming too dependent on the manufacturer as data owner? What are the requirements under Data Act? Does the third party itself then have to conclude a data license agreement with the data owner, i.e. the third party commissioned by the customer with the manufacturer who is the data owner?

Does the Data Act and parallel regulations for the public sector allow third parties to request or obtain data themselves in order to train their own AI-related models? What requirements under the draft EU AI Act will your company have to meet?Welchen Anforderungen nach dem AI Act der EU sind von der eigenen Unternehmung zu erfüllen?

When offering services via a platform, the security requirements of the current EU NIS 2 Directive must be taken into account. Is your company’s governance set up so that the non-delegable responsibilities assigned to the board of directors and management are performed internally?

What is the relationship between the liability requirements under the EU Product Safety Regulation of 2023, the updated Product Liability Directive expected soon with an interface to the German Product Safety Act, and an EU Cyber Resilience Act also expected soon?

I am involved in these ongoing or completed pieces of legislation, in some cases independently of or in conjunction with the handling of client requests. In this environment, I can offer you both overviews and introductions to the above-mentioned new topics “Data Act, Artificial Intelligence and Data Usage Agreements” as well as advice on the internal introduction of the necessary structures and the technical set-up of these parts of the company.

The protection of personal data but also the making use from data, which have been collected from equipment are a high priority in the EU.

The protection of personal data but also the making use from data, which have been collected from equipment are a high priority in the EU. Data subjects must be informed and, depending on the nature and processing of the data, must consent to the processing. The transfer of personal data outside of the EU requires that an adequate level of data protection exists in the receiving country. Special legislation applies to the Internet and telecommunications. Data protection also requires data security. Companies that collect, process or use personal data must therefore ensure that they comply with data protection regulations and take technical and organizational measures to protect their personal data from unauthorized access.

In addition, the protection of employee data is highly regulated, especially when using the Internet, e-mail, cell phones and smartphones in the course of employment or when transferring data within the company.

On January 11, 2024, the EU Data Protection Act came into force, which applies to the collection and use of data from the user of a device (“user”) who collects usage data and transfers it to the device manufacturer (“data controller”) from September 11, 2025. This will then require a data use agreement between the data controller and the user to ensure that the data collection is not unlawful. And the user can request that the collected data be transferred to the data controller or to a third party designated by the data controller. The legal basis is the Data Act, which in principle covers all types of data collected, regardless of their nature. However, the (EU) General Data Protection Regulation remains applicable to personal data, in practise a difficult distinction. The Data Act regulates a new business area to be created, namely the free trade in machine data, for example. The application of the law is demanding for the parties involved, i.e. data owners, users and third parties, and is subject to fines.

Legal services:

  • Review and advice on data protection and data law issues
  • Introductions to the Data Act, in overview or in depth
  • Legal advice on the implementation of the Data Act, in particular with regard to the protection of trade secrets
  • Drafting of data use, data transfer and data processing contracts
  • Cloud computing concepts on the provider and user side

Implementing IIoT business models within a legal framework – contracts, applications, cloud services, privacy

Traditional IT Sales

Traditional information technology products have become the backbone for services and content in other industries. Modern intralogistics concepts and electronically controlled machines and systems are inconceivable without computer hardware, system and user-oriented software.

Classical IT products have found their own internationally established sales business: on the one hand via manufacturers, distributors and sales networks, on the other hand with service-related offers – either from the manufacturer directly to the business partner who uses the product, or via channel partners who offer, for example, customizing.

License and maintenance agreements

Software license agreements govern the scope of rights granted to the user and include provisions on warranty, liability, and indemnification. Maintenance agreements ensure that the licensee receives regular updates, access to a hotline, and support for software errors, even after the warranty period has expired, provided that the level of support is appropriate.

Industry Experience

The development of national and international licensing strategies for software products requires knowledge of industry practices. Experience with licensing strategies in international business is required.

E- and Mobile Business

IT, hosting, cloud computing are as important as e-payment, B2C and/or B2B. Blogs and customer reviews are just as important as the Like-it button on Facebook or other social networking sites. Sales and competition law requirements for an international offering can vary significantly depending on the country in which the offering is targeted. For example, how should the disclaimer be worded for recipients throughout Europe?

Our services, also bilingual English/German:

  • Drafting, negotiation and contract management of project contracts, e.g. for ERP implementations (SAP)
  • Drafting, review and negotiation of license and maintenance agreements, provider agreements and distribution agreements
  • Drafting and review of general terms and conditions
  • Litigation and arbitration, including failed software projects, liability for defects, software copyright infringement, and debt collection disputes

Complex tasks

The complex technical tasks resulting from the merging of industry and IT, such as in mechanical and plant engineering, electronics or intralogistics, require not only the necessary technical know-how, but also a high level of expertise and knowledge of human nature on both sides of the business. For successful implementation, such as in a project contract, rules must be established for coordinating processes, assigning responsibilities, and escalating conflicts.

The ability to access IT infrastructures and data over the Internet and to evaluate and process data with AI applications has changed the requirements for the capabilities of products and services so fundamentally that technical solutions have had to be redesigned.

Financing concepts

The development of financing concepts for a project requires legal protection for the financier in the project contract. This affects acceptance criteria, documentation and payment stages. This affects acceptance criteria, documentation and payment stages

Securing investments

The profitability of the investment can only be ensured if availability, timing and other performance characteristics can be verifiably agreed and enforced.

Milestones

This also applies to interdependencies: payment guarantees from the customer for the duration of the various milestones in a project’s payment schedule versus performance guarantees to be provided by the contractor.

Contractual accessories

Finally, a great deal of practical experience is required for the various ancillary protocols and ancillary contracts for the implementation of more complex technology contracts, e.g. in the fields of machinery and equipment, electronics and intralogistics. This includes ensuring adequate specifications, documentation lists, acceptance specifications and protocols, fault categories, availability and time behavior, subsequent maintenance and service contracts.

Legal services:

  • Contract design and management from
    • planning through
    • realization and
    • implementation and acceptance to
    • enforcement of and defense against performance guarantees and warranty claims
  • Preparation of financing and insurance concepts
  • Legal project management
  • Legal and linguistic coordination of international contracts
  • Legal representation in arbitration and litigation proceedings

Written contracts are not a sign of mistrust, but of professionalism. The “handshake” between business partners has become rare in today’s complex business relationships. Written agreements are essential, especially in long-term and international business relationships. They provide security and avoid unnecessary misunderstandings and disputes.

German civil law is based on the principle of freedom of contract. Individuals are free to decide whether to enter into a contract, with whom to enter into a contract, what form the contract should take, and whether the contract should be terminated. Although the legislator prescribes various types of contracts, it leaves the content of the contract free, limited only by protective provisions.

Reforms in contract law in particular have led to far-reaching changes in recent years against the background of the implementation of European directives. For example, new types of contracts resulting from the development of the information society have been regulated by law for the first time. In addition, consumer protection has been significantly increased and the law on warranties and limitation periods has been reformed. The EU’s digital strategy has resulted in laws such as the Digital Services Act, the Digital Market Act and the Data Act: AI Act have created a completely new legal environment for players in this field. All these laws still need to be translated into daily practice with necessary adoptions in the future due to supervision by EU European bodies and courts.

Entrepreneurs should leave nothing to chance when drafting contracts. Happy to have finally reached an agreement, contracting parties are reluctant to think about disputes or even court proceedings or the end of the contract at the beginning of the cooperation. However, the quality of a contract only becomes apparent when the parties are no longer in agreement.

Suddenly, it is not only the exact wording of contract clauses and general terms and conditions that are important, but also the legal system against which the content of the contract is to be measured, and the court or country in which any pending litigation is to take place.

The choice of law and jurisdiction may not only affect the enforceability of claims. Depending on whether foreign lawyers need to be engaged, pleadings translated, and local appointments made, the financial lead time can be significant if the outcome is uncertain.

Good contracts are systematically structured, logical and contain clear and complete agreements. We are aware of the potential traps, pitfalls and points of contention and assist companies in their national and international business projects, in particular by drafting project, distribution and cooperation agreements or general terms and conditions in line with their interests.

Legal services:

  • Drafting, examining and negotiating contracts and agreements in an international context
  • Drafting and examining terms and conditions for international business transactions
  • Co-ordination and evaluation of information given on foreign law issues
  • Prozessuale Betreuung mit kooperierenden Anwälten von Rechtsstreitigkeiten in Ausland mit Kanzleien vor Ort
  • Schieds- und Schlichtungsverfahren als Parteivertreter, Schiedsrichter oder Schlichter

Creators such as authors, filmmakers, advertising agencies, and software programmers enjoy protection of their intellectual property. Through licensing agreements, authors on the one hand and users of copyrighted works on the other can regulate the extent to which and the conditions under which a book may be published, a movie broadcast, an advertisement placed, or software used. These agreements can cover the scope of rights granted, warranties and liability, as well as issues such as editing the work or making backup copies. In addition, authors can take legal action against pirates and infringers of their copyrights, seeking damages and often injunctive relief.

Legal services:

  • Drafting, reviewing, and negotiating licensing, publishing, and other agreements between creators and users
  • Reviewing the copyright situation
  • Enforcement of copyright claims
  • Defense against infringement claims
  • Software license management

Project contracts are used to record orders that go beyond the delivery of individual items or the provision of specific services. A project may consist of a large number of items to be purchased or produced, as well as various services and, in particular, software modules, e.g. for control purposes.

A project contract is, for example, an agreement for the implementation of an enterprise resource planning program consisting of hardware, standard software components, and customization. A project contract is also the development of a specific machine with various interfaces to third parties.

In a general contractor agreement (GC agreement), a contractor assumes sole responsibility to the client for fulfilling a contract for various components and services that the GC must purchase or subcontract from third parties. The advantage to the customer is that they have a single point of accountability. The advantage for the GC is that it also receives a GC fee for assuming central responsibility.

Consortium contracts are characterized by the fact that two or more companies are jointly and severally liable to a client, e.g. for the implementation of a machine system or a construction project. If one contractor fails to perform, the client can turn to the other contractors. The advantage for the client is therefore greater risk diversification. Consortium agreements allow contractors to participate in projects that they could not undertake on their own.

In turnkey contracts, the contractor undertakes to hand over to the client a turnkey plant with all ancillary works. The contractor can be either a general contractor or a consortium. The “turnkey handover” is the objective of the contract. In particular, the client can transfer planning and coordination risks to the contractor. In return, the contractor is paid for these additional responsibilities.

Legal services:

  • Drafting, examining and negotiating project, general contractor, consortium and turn-key contracts in either German or English
  • Legal advice during the implementation of such contracts, contract management
  • Legal advice in adjustments, arbitrations or mediations
  • Prozessvertretung, ggf mit meinen Kooperationspartnern

Manufacturers and importers of technical products are subject to product liability. In the event of injury to life, limb or health, or damage to property caused by defective products, they may be exposed to claims for damages from third parties, even if the warranty period has long since expired. Software is also subject to product liability.

Safety requirements arise in particular from EU legislation, such as the Machinery Directive, and from standards and other technical specifications. The Product Safety Act (ProdSG) implements these requirements in German law in conjunction with national regulation

At the interface to AI and Big Data applications, as well as for Digital Services, the EU legislator has created far-reaching additional requirements, such as the Product Safety Regulation, the Cyber Security Act and the NIS 2 Directive. These are challenges for security processes, documentation and the responsibilities of the top management itself. Their implementation by companies working in these business fields is still in preparation, if it has started at all (as of 05.2024).

Legal support is required to avoid product liability claims and to defend against corresponding lawsuits or to react to demands of supervision authorities. This concerns both the question of preventive technical and contractual protective measures, such as warnings in instructions for use and indemnification obligations of suppliers, as well as the legal review of asserted product liability claims or a possible recall obligation.

Legal services:

  • Review and advice on product liability risks
  • Drafting product liability clauses
  • Beratung zur Produktsicherheit und CE-Zertifizierung , besonders bei festgestellten Sicherheitsmängeln
  • Defense of product liability claims

National/International Litigation / Mediation/Arbitration

8.1 Litigation

From an economic point of view, litigation before the ordinary courts is economically unsatisfactory, time-consuming and burdensome for many companies and in a number of specific cases. However, experience shows that litigation is unavoidable in many situations, both in business and in private life – for example, in the enforcement of trademarks and patents in the business sector, in competition law or in the recovery of debts.

Litigation requires complete and correct preparation of the facts, rigorous argumentation in terms of formal law, as well as litigation psychology in dealing with the court and opposing counsel. The court’s decision-making criteria are different from those in a private commercial negotiation situation.

Successful litigation therefore requires a lawyer to know how to prepare and present the facts of the case, where to focus the legal argument, and how to react in certain litigation situations. This “skill” requires experience.

A particular focus of our litigation practice is the area of project business in the technical environment.

Legal services:

  • Out-of-court clarification of prospects for success; risk analysis
  • Identification of evidentiary issues/finding suitable experts
  • Consultation of additional specialized legal knowledge, if indicated
  • Liaise with lawyers in other jurisdictions
  • Preparation of decisions on choice of procedure (see “Arbitration and Mediation”)
  • Litigation and trial representation in cooperation with our partner law firm
  • Organizing, reviewing, and handling pre-trial discovery of evidence by the U.S. judicial system from companies and individuals in Germany for the parties to the dispute

8.2 Arbitration and Mediation

Why conciliation or arbitration?

Conducting litigation before the ordinary courts can lead to problems that make it virtually pointless to conduct litigation before the ordinary courts in Germany, but especially in some other neighboring European countries:

  • Long proceedings, which can last several years, depending on the workload of the judiciary.
  • Changes of judges, which affect the continuity and possibly the quality of the decision.
  • Possible lack of expertise of specific judges in the subject matter of the dispute.
  • In case of doubt, economic aspects must take second place to the legal situation.
  • Gerichtsverhandlungen sind öffentlich.

Forensically experienced legal counsel will therefore consider whether there are advantages to conciliation and/or arbitration.

Advantages of mediation and/or arbitration:

  • Arbitration can avoid failure in the short term, even for a project that is on the verge of failure.
  • Conciliation and arbitration can be initiated on short notice.
  • Proceedings can be shortened to ½ to 1 year with the cooperation of both parties.
  • The selection of the arbitrator can ensure expertise.
  • Replacement of the arbitrator is the exception.
  • Hearings are not held in public.
  • The arbitration rules can be freely agreed upon, which is also important with regard to costs.
  • The parties may agree with the arbitral tribunal/arbitration panel on the rules of procedure for the proceedings.
  • The arbitrator, as well as the mediator, can place economic criteria at the forefront of the decision-making process.

Disadvantages of arbitration or mediation:

  • The cost of arbitrators or mediators can be high, especially when there are three arbitrators resp. mediators.
  • When choosing an arbitration procedure, the advantages and disadvantages of each must be weighed, depending on the arbitration organization.
  • In arbitration and mediation, the procedural experience of the arbitrators or mediators is important.

Legal services:

  • In individual cases, clarification of the optimal type of procedure and cost analysis between
    • mediation
    • conciliation
    • arbitration
    • Litigation before the general court together with our cooperation partner
  • Legal representation in the proceedings
  • as arbitrator, mediator or party representative