BRAZIL LAW AND PRACTICE Contributed by: Ricardo Barretto Ferreira da Silva, Ingrid Bandeira Santos, Sylvia Werdmüller von Elgg Roberto and Isabella da Penha Lopes, Azevedo Sette Advogados
7. Challenges with Technology Agreements 7.1 Legal Framework Challenges Closely regulating all aspects of technology agreements is of paramount importance, since Brazilian legislation and case law have not deep - ly considered them so far. IP rights, service lev - els, liability and data privacy are the most chal - lenging topics for technology agreements. Especially considering the fast-paced develop - ment of technologies, ownership of current and future IP is a highly sensitive matter. Provisions stating the covenants between the parties to agreements are necessary. Regarding software licence agreements, it is of relevance that SaaS is frequently provided in Brazil. Considering that service level agree - ments (SLAs) are not specifically regulated, but rather result from business negotiations, it is also important to regulate all aspects thereof, such as uptime, backups, disaster recovery and busi - ness continuity. Concerning liability, the Software Law holds that contractual provisions exempting any parties from actions brought by third parties resulting from copyright misuse, flaws or violation are null and void. However, limitation of liability is not for - bidden, and the understanding of the maximum indemnification when technology agreements are involved varies. Data privacy is another challenging issue in the regulation of technology agreements, since per - sonal data is usually stored by IT systems, and international data transfer may occur. In this regard, both data controllers and processors shall act in compliance with the LGPD and rules issued by the National Data Protection Author -
transparency and isonomy; inform their users a priori about the adopted traffic management and mitigation practices, including those related to network security; and offer services under non- discriminatory business conditions and abstain
from anticompetitive conduct. 6.3 Emerging Technologies
Although it is still not possible to foresee what emerging technologies such as 5G, the IoT and AI will ultimately enable individuals and compa - nies to achieve, it is already clear that regulations will be necessary for many aspects thereof. Laws and regulations shall ensure individuals’ rights, privacy, security and dignity, but at the same time a balance should be sought by legis - lation to foster technological development. Cybercrimes occur on a daily basis; therefore, legislation shall be in force to regulate opera - tions that may lead to cybercrimes and properly penalise this kind of criminal conduct. Many bills are being analysed, and discussions are presently ongoing in Brazil to address issues associated with emerging technologies. When integrating these technologies, the matter of liability is highly relevant; the party liable for decisions taken, for example, by AI solutions, should be determined, especially when errors or damage occur. Data privacy must also be considered, ensur - ing compliance not only with local legislation but also with the applicable international regulations. In addition, other concerns may arise when dealing with these technologies, and interested parties should seek specific advice to address them.
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