IT Contracts: Effective negotiating and drafting

Overview

This report provides useful insight into IT contracts, principally in respect of business-to-business transactions. It provides advice and guidance in explaining and understanding the structure and content of different kinds of IT contracts, for reviewing, negotiating and drafting purposes. This report takes into consideration the various legal and commercial entities in order to successfully manage risk, avoid costly mistakes and reflect the details of the transaction. Legal explanations are provided from a commercial perspective.

Topics covered include:

• IT contracts to their commercial context
• The legal environment affecting IT contracts and jurisdiction for international contracts
• Objectives of contracts, and their use in risk management and investment
• Licensing of application software
• Contracts for software development and for website development
• Services agreements, for maintenance and support, contracting and outsourcing
• Regulation and requirements of e-contracts and websites
• Confidentiality and security in IT contracts

Content

1. The IT Contract Environment

• IT ubiquity
• Internationalisation
• Commoditisation
• The growth of information
• Innovative business models
• IT contract relationships

2. The Legal Environment Affecting IT Contracts

• Trading internationally
• Law and jurisdiction
• Dispute resolution
• Litigation
• Arbitration
• Alternative Dispute Resolution (ADR)

3. Contracts and Standard Terms

• What is a contract?
• Contract elements
• Standard terms and conditions
• Battle of the forms’
• Implied terms
• Excluding and limiting liability
• Contract parameters
• IT product supply contracts

4. Contracts for Software Licensing and Transfer

• Nature of software licensing
• Software copyright ownership and assignment
• Licence
• Object licence
• Source licence
• Open source licence
• Other licences

5. Contracts for Software and Website Development

• Software development methodology
• Meeting the requirements
• Charges
• Change control
• Project management
• Acceptance criteria
• Late completion
• Ownership of the software
• Warranties
• Failure in commissioned software development
• Website contracts
• Scope of website services
• Website content
• Ownership of rights in the website
• Website development warranties

6. Contracts for Service Provision

• Structure
• Services
• Relationship management
• Restrictions on recruitment
• Intellectual property
• Hardware maintenance and software support
• Contractors
• Outsourcing

7. Contracts made Online

• Contract formation online
• Electronic signatures and emails
• Internet auctions
• Online contracts and jurisdiction
• EU online supplier regulation
• Online transactions with customers
• Consumer transactions
• Online compliance

8. Confidentiality and Security

• Cloud computing
• Confidential information
• Personal data
• Software source code and escrow
• Contingency planning and disaster recovery
• Other specific security requirements

The author

Rachel Burnett runs her own IT legal services firm, which specialises in all IT-related agreements: IT services, products and systems, data and information provision, e-commerce, copyright licensing and assignment. Before her legal career, Rachel was an IT professional in system development and project management. Rachel is an associate lecturer and regional manager with the Open University, and is an experienced presenter both in the UK and abroad, delivering courses which focus on the practical application in business law, intellectual property and information technology.

CPD

Thorogood legal reports are accredited by The Solicitors Regulation Authority (CPD reference DVQ/THPU) for continuing professional development as distance learning education.

NB: Solicitors may claim up to 75% (12 hours) of their annual CPD requirement by undertaking distance learning education.

For more information see The Solicitors Regulation Authority

Certificate of completion

Upon reading this publication participants are invited to undertake a final assessment in the form of an on-line multiple choice paper. Upon passing, a certificate of completion will be made available to you, which can be included as part of your CPD requirements should you consider it relevant to your professional development needs.