ICT contracts and negotiations

Agreeing and complying

Contract law is not just about drafting or reviewing texts, but above all about listening carefully and analysing the negotiations and the strengths of the parties involved. What is actually allowed or required? Contracting is about “modelling” and not about “retrieving” a “standard” from the server. Where is the potential for conflict: who proves which item? Can certain risks simply be insured? Do guarantees increase the price too much, or were they absent when the commercial price was quoted? 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 things to be different. Both the buyer and the seller must therefore remain critical. Of course, it is about risks, saving time and money. And if your ICT does not work, this gives negative exposure to customers.

ICT problems affect a company internally, but often also externally: so make sure you arrange it properly with an IT or ICT solicitor. Investing in this legal service is better than investing in marketing to gloss over painful ICT stagnation. No amount of marketing can counteract negative events. Negotiating ICT contracts is a profession. In addition to experience, it also depends on the stage of the negotiations and knowledge of the risks and the type of ICT contract.

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‘…navigating within “business models”… and the law…’

ICT contracts sometimes contain prohibited provisions. These are provisions that are not legally valid. For example, according to the Copyright Act, it is not possible to waive the right to modify software or make a backup, nor is it possible to exclude intent in the event of liability.

Short and simple contracts seem attractive. However, it is important to identify any gaps and loose ends. Freedom of contract is a valuable asset, but that freedom is not unlimited, of course. Numerous laws and EU regulations limit that freedom within commercial contracts. Contracting is doing business: understanding the objectives and requirements, identifying risks and preconditions. It is about understanding but also navigating within “business models”. Contracting “is” negotiating.

The nature of these restrictions and preconditions varies greatly in contract law. Fruytier Lawyers in Business has extensive experience in contract law and drafts agreements in the field of IP and IT and ICT-related European tenders.

In the case of software, IP law and ICT law overlap. The production of customised software raises issues of copyright and database rights, but also the question 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, including in ICT-related European tenders, can be complex; these are not separate pieces but interconnected modules. Insight, overview and experience can help you.

Frequently asked questions / FAQs about ICT contracts

What makes ICT contracts complex?

ICT contracts are rarely what they seem. What starts as a seemingly simple agreement about a system, a service or a piece of software quickly unfolds into a legal rollercoaster in which technology and language chronically misunderstand each other. The devil is in the definitions. Add to that the asymmetry in knowledge between supplier and customer, and the contract turns into a field of tension full of unspoken expectations. The legislator offers only fragmentary guidance. Practice requires contracts that anticipate misunderstandings before they escalate. At Fruytier Lawyers in Business, we know that a good ICT contract is not a standard document, but a legal strategy in code. Think of it as a safety net for when technology fails and expectations clash.

What are prohibited provisions?

Prohibited provisions are contractual clauses that are so contrary to mandatory law or to reasonableness and fairness that they are not legally valid, no matter how elegant they may appear on paper. Examples include penalty clauses that are disproportionate or general terms and conditions that undermine essential consumer rights. In B2B relationships, this can be more subtle: provisions that contain unilateral powers of amendment or that shift the burden of proof in an unreasonable manner. In this regard, the court looks not only at the text, but also at the context, the balance of power, the scope for negotiation and the nature of the performance. At Fruytier Lawyers in Business, we identify these pitfalls not only after the fact, but already at the drawing board.

Why is it important to avoid prohibited provisions in ICT contracts?

Prohibited provisions in ICT contracts are more than just legal quibbles in the margins. They undermine the enforceability of the entire contract and can come back to haunt you in a dispute. In the dynamic world of IT projects, where interests are high and friction is inevitable, it is crucial that clauses stand up to judicial scrutiny. An invalid clause is simply set aside, often resulting in reputational damage and renegotiation. At Fruytier Lawyers in Business, we therefore look not only at what you can agree, but above all at what will stand up when it comes down to it.

What is the advantage of contracting?

Contracting is not a formality, but a strategic tool. The advantage lies in establishing expectations, risk distribution and rules of the game in advance. As a result, the collaboration does not depend on good faith or vague memories, but on verifiable agreements. In Dutch law, freedom of contract is the starting point. This means that, within certain limits, parties have a lot of leeway to shape their own legal relationship.