IT contracts
To create a clear and legally compliant basis for successful business relationships, it is now more essential than ever to protect yourself contractually. Whether you are using cloud services, developing individual software solutions, or commissioning third-party IT service providers, it is essential to conclude a legally compliant IT contract that protects your rights. Our aim is to support you with our legal and technical expertise in drafting, reviewing, and negotiating IT contracts to provide you with the best possible support and safeguard your business relationships.
What are IT contracts?
IT contracts are special legal agreements in the field of information technology that define the legal framework of a business relationship. They define the rights and obligations of the contracting parties and thus form the basis for cooperation. IT contracts are used in various areas such as software development, licensing, cloud computing, IT outsourcing and data processing.
What are the advantages of IT contracts?
Working with IT contracts offers numerous advantages for companies and IT service providers. By clearly agreeing the service owed, IT contracts can ensure the achievement of performance targets and the smooth operation of IT systems, which regularly leads to an increase in productivity. They also offer the potential for cost savings by ensuring that payment is only made for required services. IT contracts offer planning security, especially for continuous IT requirements, and reduce legal, operational and security-related risks. As clearly formulated IT contracts precisely describe the service to be provided, they set out expectations from the outset and thus improve communication. Overall, they help to protect the interests of the parties through clear agreements and thus create the basis for professional collaboration.
Our services in the area of IT contract law
- Development and design of individual IT contracts
The legal options for structuring the business relationship are just as numerous as the possibilities offered by information technology. We are glad to support you in the development and drafting of software development agreements, software license agreements, outsourcing agreements, software-as-a-service agreements, platform-as-a-service agreements, cloud computing agreements and service level agreements. - Negotiation of IT contracts
As experienced negotiators, we look forward to assisting you in asserting your requirements and achieving a balance of interests. - Development of contract templates
Especially for companies that continuously provide or purchase IT services, well thought-out contract templates are of great importance for an efficient and smooth business process. To this end, we work with you to develop individual contract templates that are tailored to your specific requirements. - Analysis and review of existing IT contracts
In the event that you have already concluded an IT contract with your business partner, we will also be happy to review it for you with regard to legal risks, optimization options for contract adjustments and compatibility with currently applicable laws, e.g. the General Data Protection Regulation (GDPR). - Legal advice for IT projects
The implementation of IT projects can harbor many risks. To provide you with the best possible protection, we offer you strategic support for complex projects, from conceptualization and any escalation management through to acceptance of the IT project.
Contact persons
Dirk Koch
Attorney at Law | Partner
CEHv11 – Certified Ethical Hacker | Data Protection Risk Manager | CIPP/E
Olga Stepanova
Attorney at Law | Partner
LL.M. (Berkeley) | CIPP/E | Certified Specialist for Intellectual Property Law | Certified Specialist for IT Law | Data Protection Officer (TÜV)
IT Contracts
An IT service contract should clearly specify which services the service provider is obliged to provide, which obligations to co-operate fall on the customer and how changes to the scope of services are to be handled. In addition, remuneration, term, termination, service levels, data protection, confidentiality, IT security, subcontractors, liability and rights of use in work results are central points to be regulated. For longer-term or critical services, an exit strategy should also be provided for, so that data, systems and access credentials can be handed over in an orderly manner at the end of the contract.
Whether an IT contract is classified as a contract for work and services or a service contract determines what the service provider owes and what rights the customer has in the event of problems. Under a contract for work and services, a specific result is owed, such as functioning software; acceptance, rights in respect of defects and rectification are therefore particularly important. Under a service contract, by contrast, the service provider owes diligent activity, such as advice, support or project assistance, but not a specific result. The decisive factor is not the label used in the contract but the actual agreed content of the services. In IT projects, mixed services should therefore be clearly distinguished from one another.
Under a contract for work and services, the customer may, depending on the contractual arrangements, claim damages for delay, set an additional period for performance or, subject to certain conditions, withdraw from the contract. It is decisive whether the deadlines were agreed as binding dates and who is responsible for the delay; in particular, it matters whether delays are attributable to the customer’s failure to provide the required co-operation. Contractual penalty clauses can provide additional protection in such situations, but in standard terms and conditions they are subject to substantive review and must therefore be drafted with care.
Companies should examine particularly carefully provisions on scope of services, availability, support, security measures, data processing and storage location. They should also consider the use of sub-processors, international data transfers, audit and control rights, limitations of liability and unilateral rights of the provider to make changes. Clear requirements regarding backups and the return and deletion of data at the end of the contract are also important. Companies in the financial sector and their ICT service providers must also observe the contractual minimum requirements under DORA.
Standard terms and conditions are not automatically immutable. Adjustments are often possible, particularly for larger projects, bespoke services or long-term contractual relationships. The scope for negotiation depends heavily on the provider and the volume of the engagement; conditions can often be changed only to a limited extent when dealing with large cloud or software providers. Irrespective of bargaining power, the following applies: standard terms and conditions are also subject to substantive review under Sections 305 et seq. BGB in contracts between businesses. In particular, broad exclusions of liability, blanket liability caps, unilateral rights to change the services and short exclusion periods are frequently invalid under Section 307 BGB, with the result that, in the event of a dispute, an invalid clause is replaced by the statutory liability regime. Companies should therefore carefully review critical clauses on liability, termination, data protection, subcontractors, rights of use and the return and deletion of data before entering into the contract, and consciously assess the remaining risks.