IT is of central importance for almost all companies today. IT failures cause billions of dollars in damage every year. Therefore, a considerable amount is invested in software used in companies. Many companies need individual software, either in the form of adapted standard software or as individual software. As a rule, IT projects are set up for this purpose, and their budgets can quickly reach five or six figures.

Despite these sums, we repeatedly see that a largely meaningless offer is supposed to form the basis of the IT project. A good IT contract would usually be the better choice. An IT contract is a legal contract that defines the terms and conditions under which a company or organization receives or provides IT services. These services may include the provision of hardware, software, network services, cloud services, support and maintenance.

An IT contract can also define the responsibilities and liabilities of both parties, especially in the event of problems or failures of the IT systems. It can also include rules for data protection, security and the handling of sensitive information.

An IT contract is important to define and protect the rights and obligations of both parties and to ensure that IT services are provided properly. It is important to read and understand an IT contract carefully before signing it to ensure that it meets the needs and requirements of the company.

The legal aspects of IT use are unfortunately often neglected. From a legal perspective, this is surprising because research on IT projects has shown that a large number of IT projects fail, with the percentage varying depending on the source, but as high as half of all projects.

When we, as specialized IT lawyers, deal with the contracts that are concluded in this area, we come to the conclusion that these figures are often still unknown. In terms of content, IT contracts are regularly designed only for successful projects in which the contract clauses are usually not needed or are only needed after many years when the software maintenance contract is to be terminated, given the achievement of the common goal.

Both parties to a software contract, i.e. the provider and the customer, should actually have a common interest in a good IT contract, because experience shows that a contract adapted to the project can contribute to its success. When concluding a contract, the contracting parties often have to reflect on it again, and this alone helps to avoid the most common reasons for failed IT projects:

1. Lack of clarity of objectives and requirements: If the objectives and requirements of a project are not clearly defined, it can be difficult to measure the progress of the project and identify problems.
2. Lack of communication and coordination: Poor communication and coordination between stakeholders can result in tasks not being completed on time and important information not being passed on.
3. Lack of resources: A lack of time, money or personnel can mean that the project cannot be successfully completed.
4. Lack of risk management: If risks are not identified and adequately addressed in a timely manner, they can jeopardize the project.
5. Lack of quality: If the quality of the work does not meet the requirements, the project can fail.
6. Lack of flexibility: If the project cannot be adapted to changing conditions, it can fail.

To successfully complete IT projects, it is important to set clear goals and requirements, ensure good communication and coordination, provide sufficient resources, identify and manage risks in a timely manner, maintain high quality standards, and have flexible plans to respond to changes.

As specialized attorneys for information technology law, we have the legal and technical know-how to address a variety of issues that typically arise. This also includes a certain knowledge of IT project management, which should be reflected in the IT contract.

An IT contract can help avoid some of the problems that can cause IT projects to fail by

1. Establishing clear objectives and requirements: An IT contract can clearly define the project's objectives and requirements to ensure that all parties have the same understanding and that the project's progress can be measured.
2. Establishing communication and coordination: An IT contract can establish rules for communication and coordination to ensure that all parties stay informed and that important information is shared.
3. Defines resources: An IT contract can define responsibility and budget for the project to ensure that sufficient resources are available to successfully complete the project.
4. Defines risks: An IT contract can define rules for risk management to ensure that risks are identified in good time and dealt with appropriately.
5. Setting quality standards: An IT contract can set quality standards to ensure that the work meets requirements.
6. Establishes flexibility: An IT contract can define rules for responding to changing conditions in order to successfully complete the project.
   
   

From a legal point of view, a good IT contract takes into account the planning and design phase, in which the creation of specifications and requirements documents is crucial for ensuring satisfaction with the software at a later stage. The tasks of the parties should be clearly defined at this early stage in order to avoid later disputes about whether the provider has not correctly determined the needs or the entrepreneur has not fully presented them on their own initiative.

Requirements and specifications

A requirements specification and a specifications document are important documents used in many IT projects to define the goals, requirements and expectations of the project.

The requirements specification describes the client's requirements and expectations of the project. It defines the objectives and benefits of the project and describes the functions and services that the project should provide. The requirements specification serves as a basis for the functional specification and helps to define and prioritize the project's requirements.

The requirements specification describes how the project team will fulfill the requirements of the requirements specification. It defines the responsibilities and resources required for the project and describes the technical solutions that will be used to meet the requirements. The specifications serve as the basis for the IT contract and help to define the project team's deliverables and responsibilities.

The requirements document and the specifications document are important documents that are used in the IT contract to define the goals and requirements of the project and ensure that all parties have the same understanding. They also help to define the responsibilities and resources required for the project and ensure that the project can be successfully completed.

Agile approach

From the perspective of IT law, this desirable approach no longer always reflects reality. Often, quick results are needed today and the IT contract has to adapt to this.

Agile approaches are a type of project management methodology that focuses on flexible adaptation to changing requirements and conditions. In contrast to traditional approaches, in which the requirements and plans are defined at the beginning of the project and do not change during the project, agile approaches allow for changes and adjustments during the project.

In agile projects, requirements and plans are developed and implemented in short iterations, known as sprints. This makes it possible to adapt to changing requirements and conditions and ensures that the project meets user needs.

An IT contract can specify the use of an agile approach by defining the responsibilities and resources for each sprint and setting rules for responding to changing requirements and conditions. It is important that all parties involved share the understanding and principles of agile approaches to ensure a successful implementation.

Duty to cooperate

Although the realization of the required software will be primarily in the hands of the IT company, the contract should create clarity for all parties involved with regard to any obligations to cooperate.

The duty to cooperate includes the responsibility and obligation to participate in a project and to provide the necessary resources and information to successfully complete the project.

There are a few important things to keep in mind when it comes to collaboration requirements:

1. Define the obligations to cooperate: Make sure that the obligations to cooperate are clearly defined for everyone involved and that everyone knows what is expected of them.
2. Clarify responsibility: Make sure that everyone involved is responsible for their responsibilities and obligations in the project.
3. Make sure that all parties are up to date: regularly check how the project is progressing and whether all parties are up to date.
4. Clearly define who has to communicate in which way if obligations to cooperate are not fulfilled.

The issue of a lack of cooperation is often raised in IT projects when a lawyer is brought in during the course of the project.

At the end of the IT project: acceptance

In the IT industry, the acceptance of the software or the entire IT system supplied is regularly requested by providers and customers, although from a legal point of view, acceptance would often no longer be necessary, and mere delivery may be sufficient. Therefore, it is particularly important to regulate the desired acceptance and its consequences in detail if no additional legal regulations intervene.

Acceptance is the process by which the project team and the client verify the outcome of the project and determine whether it meets the requirements and expectations. Acceptance is an important step in ensuring that the project has been successfully completed and that the result meets the needs of the users.

There are a few important things to keep in mind during the acceptance process:

1. Define the requirements and expectations: Make sure that all the requirements and expectations set out in the specifications and the tender documents have been met.
2. Test the result: Carry out extensive tests to ensure that the result meets the requirements and that it is safe and reliable.
3. Document the result: Ensure that all important information about the result is documented, including technical details, operating instructions and user documentation.
4. Confirm the result: Ensure that all stakeholders confirm the result and that it meets the requirements.
5. Plan the handover: Carefully plan the handover of the result to the user or operator and ensure that all parties involved are informed about the handover and that all necessary documents and resources are provided.

It is important that the acceptance is carefully planned and executed to ensure that the project has been successfully completed and that the result meets the needs of the users.

Is acceptance always necessary?

In some cases, it may be obvious to dispense with acceptance, for example if the project is very small or if the result has already been thoroughly tested and no further testing is required. In such cases, the result can be handed over directly to the user or operator.

In many cases, however, the parties involved consciously or unconsciously act within legal contract models that do not provide for acceptance at all. Lawyers will categorize the specific project in terms of the law and draw the appropriate conclusions, because the legal provisions that are most often considered – the purchase contract, the contract for work and services, or the lease – are based on entirely different factual processes than those of an IT service. Nevertheless, IT projects usually fall into one of these categories, and only the contract for work and services requires acceptance.

By default, a long-term debt relationship, known as a maintenance or service contract, comes into effect after the initial delivery to ensure that the customer can continue to use the IT in the long term.

A maintenance contract is an agreement that defines the responsibility and obligation to maintain and service a system or application to ensure that it remains secure, stable, and performs well.

A maintenance contract usually defines the following:

1. The type of maintenance: The maintenance contract defines what type of maintenance will be carried out, for example, regular maintenance, troubleshooting or software updates.
2. The frequency of maintenance: The maintenance contract defines how often maintenance is carried out, for example daily, weekly or monthly.
3. Responsibility and duty: The maintenance contract defines who is responsible for maintenance and who must provide the necessary resources.
4. The costs: The maintenance contract specifies who is responsible for the costs of maintenance and how these are calculated.

A maintenance contract helps to ensure that a system or application remains in good working order and that all parties are clear about their responsibilities and obligations. It is important that all parties read and understand the maintenance contract carefully to ensure that the defined rules and requirements are met.

Contract law specifics

Even if the services for the initial implementation are described relatively well, it is often unclear in maintenance and service contracts what the services are that each party is to provide. In particular, over the many years of the contract, ideas may diverge. To avoid disputes between the parties, a lawyer can help with the drafting of the contract.

• Lawyer Dr. jur. Dirk Lindloff
• Lawyer Elmar Kloss
• Lawyer Dr. jur. Christian Cloos