“IT contracts” refers to a very wide field, and covers:
- Traditional IT contracts such as outsourcing contracts (e.g. managed services contracts), maintenance, hosting, and software development contracts – these are often contracts for the provision of services or for “partnership”, whereby the service provider supplies the customer with one or more of these services (development, hosting, maintenance, etc.) within the framework of successive purchase orders; and
- More recent contracts, in Saas, PaaS or IaaS mode, etc.
Our lawyers specialise in drawing up and negotiating all of these contracts (traditional IT contracts or contracts in Saas, PaaS or IaaS mode, etc.). We act both on behalf of clients purchasing these services and of service providers.
Some examples of key terms in IT contracts
Contractual terms, which are crucial to set out and are often debated in detail, whatever the type of contract, generally concern the nature of the obligation (method/result), the liability ceiling, guarantees, intellectual property, obligations of the provider, the SLA or PAQ, and the termination conditions.
It is essential that these clauses be drafted by specialist lawyers because an ill-drafted clause could be applied by the judge in the event of a litigation. This is the case, for example, when drafting a clause as crucial as the limitation of liability clause, which, if not drafted with the infamous Oracle/Faurecia case taken into account, could be deemed unwritten.
Some examples of specific elements of IT contracts
Beyond the issues common to all contracts, certain difficulties which are specific to certain types of contracts must be taken into account. For example:
- SaaS, PaaS and IaaS hosting contracts generally have implications for the protection of personal data: depending on the location of the servers hosting the data, these implications will be more or less difficult to regulate in legal terms; it may be necessary to draw up a specific Annex concerning the processing of personal data in order to define the role of each party and the obligations of the subcontractor, in particular in terms of data security and confidentiality, and protection measures in the event of transfer of personal data outside the EU;
- Software development, licencing, SaaS, PaaS and IaaS contracts entail various intellectual property issues; this includes defining and delineating the transmission of copyright under a specific intellectual property clause providing for either an copyright assignment (in the case of assignment of rights relating to specific developments) or a usage licence clause; and
- Saas, PaaS and IaaS contracts may involve legal problems arising from the publication of content (text, photos, etc.), which necessitates a specific editorial responsibility clause.
It is therefore important to have IT contracts drawn up and negotiated by lawyers who are competent in this field.
Pre-litigation and litigations concerning IT contracts
In addition to drafting and negotiating the aforementioned contracts, our lawyers can be involved in IT pre-litigations, for example when a large-scale IT project encounters serious implementation difficulties. This type of litigation often requires particular attention to the applicable regulations on the serious breakdown of established business relations, in the event of a customer’s decision to terminate the IT contract. We promote an amicable resolution of this type of dispute as much as possible.
Failing an amicable solution, we can assist on IT litigations, as well as in cases of non-performance of a contract and within the field of software infringement , unfair competition or parasitism.