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ICT contracts and negotiating

Making agreements and honouring them

Contract law is not merely drawing up or checking texts but, above all, first listening carefully and analysing the negotiations and strength of the parties. What is really allowed and what is required? Contracting is “creating a model” and not just retrieving a “standard contract” from the server. Where is the potential for conflict? Who proves which item? Can certain risks just be insured? Do the guarantees increase the price too much or were these absent when the commercial price was issued? ICT contracts and negotiations can be complex. The presentation is often simple: “it’s the standard”.

That is the starting point on the sales side, but there are buyers/customers who would like to do it differently. Both the buyer and the seller must remain critical in that case. Obviously, it is about risks, and saving time and money. And if your ICT does not work, it creates negative exposure to customers.

ICT problems affect a company internally, but often also externally: so organise it properly through an IT or ICT lawyer. Investing in this legal service is better than investing in marketing in order to gloss over the painful ICT stagnation. No marketing can beat negative events. Negotiating ICT contracts is an art. Apart from experience, it obviously also depends on the phase of the negotiations and the knowledge of the risks and the type of ICT contract.

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“…navigating within business models .. and within the law..”

ICT contracts sometimes include prohibited provisions. I.e. provisions that do not stand up in court. For example, under the Copyright Act, the right to software customization or backup may not be waived, and the same applies to exclusion of deliberate intent in respect of liability.

Short and simple contracts seem appealing. Nevertheless, make sure you find the loopholes and open ends. Contractual freedom is a major benefit, but obviously that freedom is not unlimited. Numerous laws or EU regulations restrict that freedom in commercial contracts. Contracting is doing business: a proper understanding of the objectives and requirements; identifying risks and conditions. That is to understand but also to navigate within business models. Contracting is negotiating.

The nature of these restrictions and preconditions is highly varied in contract law. Gravendeel Advocaten has extensive experience in contract law and drafts agreements on IP and IT, and ICT-related European procurement.

In the case of software, IP and ICT law overlap each other. Production of custom software relies on copyright and data law, but so does an issue of whether it is well-interfaced. Contract law in the IP and ICT practice is highly varied and determines your position and performance. IT contract law, including ICT-related European procurement, can be complicated; they are not separate chunks but modules to be connected. Insight, overview and experience can help you.

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