ICT contracts and negotiations
Agree and honour
Contract law does not just consist of drafting or reviewing texts, but first and foremost listening carefully and analysing the negotiation and the parties’ strengths. What is actually allowed or required? Contracting is ‘modelling’ and not ‘picking up’ a ‘standard’ from the server. Where is the conflict potential: who proves which item? Are certain risks also just insurable? Do warranties increase the price too much or were they absent when the commercial price was issued? ICT contracts and negotiating them can be complex. The presentation is often simple: “it’s the standard”.
On the sales side, that is the starting point but there are buyers/customers who would like it to be different anyway. Both buyer and seller must then remain critical. It is of course about risk, saving time and money. And if your ICT is not working it gives negative exposure to customers.
ICT problems affect a company internally but often also externally: so get it right with an IT or ICT lawyer. Investing in this legal service is better than investing in marketing to brush off painful ICT stagnation. No marketing can stand up to negative ‘events’. Negotiating ICT contracts is a profession. Apart from experience, it naturally also depends on the phase of the negotiation and knowledge of the risks and type of ICT contract.
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“…navigating within ‘business models’ … and the law…”
ICT contracts sometimes contain prohibited clauses. I.e. provisions that have no legal standing. For example, the right to modify software or back up cannot be waived under the Copyright Act, nor can the exclusion of intent in liability.
Short and simple contracts seem attractive. Still, let the gaps and open ends be identified. Freedom of contract is a great thing, but of course this freedom is not unlimited. Numerous laws or EU regulations, restrict that freedom within commercial contracts. Contracting is doing business: understanding well what the goals and requirements are; identifying risks and preconditions. That is understanding but also navigating within ‘business models’. Contracting ‘is’ negotiation.
The nature of those constraints and preconditions is very varied in contract law. Fruytier Lawyers in Business has extensive experience in contract law and drafts agreements in IP and IT fields and ICT-related European tenders.
In software, IP law and ICT law are intertwined. Manufacturing custom-made software raises copyright and database law, but also an issue of whether it is properly interfaced. Contract law in IP and ICT practice is very diverse and determines your position and ‘performance’. IT contract law, also in ICT-related European tenders, can be complex; they are not separate chunks but connectable modules. Insight, overview and experience can help you.