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This Wisdom of the Crowd, compiled from responses posted on the IT, Privacy & eCommerce Forum* addresses solutions to renewal provisions in service contracts for consumer products.

 

*(Permission was received from ACC members quoted below prior to publishing their Forum Comments in this Wisdom of the Crowd Resource)

 

Question Our company provides a connectivity platform/services for manufacturers of consumer products (among others). Our standard Termination clause is that the term "auto-renews unless either party provides a 30-day notice of non-renewal." However, manufacturer of consumer products we're negotiating with now is concerned with our potential ability not to renew, they need (understandably) to be assured services won't be disconnected otherwise their "smart" products become "dumb", and that's a valid concern. Have some of you encountered these issues and what are some recommendations? I suppose one way would be to just have a unilateral non-renew clause (i.e., only the customer gets not to renew) but then doesn't that pose risk? And what about freedom of contract?1

 

Wisdom of the Crowd:

Response #1: Have you considered permitting 30 days' notice from your customers, but requiring you to give something longer, such as 6 months?

Including a clause regarding transitioning of services to a third party when the agreement is terminated could also assist to sell the auto-renewal to your customers, but this would depend on the services you offer and whether they can be transitioned to a third party.2

Response #2: One alternative is to give only the client the right to elect whether or not to renew, and then add some variation of the following wording intended to allow the service provider the ability to change/substitute or discontinue services for legitimate business reasons: "Service Provider may, at its discretion, discontinue XYZ Services at any time during a renewal term by giving Client at least twelve (12) months' prior written notice of such discontinuation."

Variations of this concept can also include the ability of the service provider to terminate or make changes if their ability to continue providing the service is undermined by losing or changing a key third-party provider contract. For example: "In addition to the termination rights set forth in ____ of the Agreement, Service Provider may terminate the Service the event that its agreement with a licensor or third-party provider required for this Service expires or is terminated; provided however, that Service Provider shall use commercially reasonable efforts to extend or to replace the contribution required from such licensor or third-party provider with a substitute that is comparable in quality and cost, without undue changes to terms or pricing of the Service."

There may be other formulations, but the point is to establish that the service provider's termination right is conditioned on a longer notice period and/or on losing a third-party required contribution. The service provider should have the flexibility to change its business plans or respond to changing conditions, but normally (other than force majeure) would have a longer time horizon for invoking a termination.3

Response #3: You could narrow your right not to renew to two discrete situations: (i) product/service sunset, in which you could give a longer notice period 90 - 120 days, or (ii) if the regulatory obligations on your product/service change in a way that requires updates either to your subscription terms or your product/service. The downside of this approach is that you won't have a right to use non-renewal as a way to get subscribers onto new paper, and your terms may be quite dated and out of compliance with your own internal company policies after 5 - 7 years.

You may want also to consider whether -- if you agree to a one-sided auto-renewal provision (only the customer can decline renewal) -- whether you want to limit the number of renewal terms to three or four. Then the parties would renegotiate terms of renewal, but with the background of a relationship of some duration, which should ease renewal, but also allow you to present your then-current user agreement as the foundation.4

Response #4: We can understand that the manufacturer is dependent on the connectivity platform services in order to its products to function properly and the manufacturer does not want the service provider to terminate the services causing its products to not function property. However, the platform service provider should not be locked into the contract in perpetuity.

One option is to estimate how long it would take the manufacturer to switch to a new platform service provider or build their own platform. The parties could agree in the contract to a period of time in which the service provider will continue the platform services after termination as termination assistance. This termination assistance period gives the manufacturer essentially an off ramp from the highway to switch to a successor provider or build it themselves without service interruption for their products.

Another option is to give sufficient notice of non-renewal (prior to expiration) that would enable the manufacturer enough time to switch to a successor provider or build their own platform.5

Response #5: One thing to consider is whether or not these manufacturers have to pay you anything for the connectivity. You do not want renewal to occur if you are owed funds for a certain period of time.

I like the idea of a longer notice period on your part, and perhaps a shorter one on your customers' parts; that way they can find an alternative platform if need be.6

 
1Anonymous (Apr. 26, 2016)
2Michael Nibaldi, Legal Counsel, Interactive (Apr. 27, 2016)
3Tiane Sommer, Legal Counsel Senior, Fidelity Informational Services, Inc (Apr. 27, 2016)
4Anonymous (Apr. 28, 2016)
5Robert Malone, Associate General Counsel, Contracting North American, Accenture (Apr. 27, 2016)
6Jacob Kojfman, Corporate Counsel, nTrust Technology Solutions (Apr. 29, 2016)
The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.
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