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IT contract law

For a number of reasons, it is advantageous for your company to draft and negotiate a clear and comprehensible IT contract. A professionally drafted contractual agreement serves as:

  1. An indication for your business partner that your performances under the agreement will be in the same professionality and high quality as is reflected by the contract,
  2. An instruction for your employees, as it contains the specification of the services you will provide to your business partner, as well as the cooperation obligations that you may expect from your business partner,
  3. A guideline to prevent possible crises, as it provides you the necessary arguments for discussions with your contractual partner on the front end of a possible crisis, and
  4. An “insurance” in the event of a conflict, as your contract contains your legal position.

IT contract law is the core field of practice of our law firm.

We perform the following services on IT contract law, for technology companies as well as purchasers of IT goods and/or services:

  • Provision of general terms and conditions for all relevant business cases in the framework of IT, electronics, technology solutions, Internet and media
  • Provision of specific templates for your quotations pertaining to all relevant types of contracts, together with pre‐set alternative wording for specific business cases
  • Drafting and negotiation of master agreements and customer specific requests for modifications and/or enhancements
  • Providing preventive legal advice
  • Taking all necessary legal action to enforce the relevant contractual rights
  • Out of court negotiation
  • Litigation

IT outsourcing

There may be a variety of motives for you to outsource your IT infrastructure to a service provider. Strategic or financial considerations may be decisive factors. As a rule you will only benefit from the decision to outsource your IT services if you manage the legal risks pertaining to the outsourcing of your IT.

Therefore, competent legal advice is mandatory in outsourcing process, in particular when you begin to structure your outsourcing process, because only then may you organize your IT outsourcing on legally watertight grounds.

We perform the following services in the framework of IT outsourcing:

    • Legal advice towards the structure and organization of the outsourcing project
    • Drafting of the relevant contractual agreements
    • Revision of contractual agreements and documents provided to you by your business partner
    • Negotiating contractual agreements and documents
    • Providing necessary due diligence services
    • Taking all necessary legal action
    • Out of court negotiation
    • Litigation

IT procurement

In general, the procurement of contracts on behalf of the government needs to adhere to strictly formalized procedures. All tendering companies need to prepare their tenders very carefully in form as well as contents, since only one formal fault may result in the exclusion from the procurement procedures and modifications to the submitted tenders are not permitted. Moreover, unsuccessful tenderers may claim for a review procedure in order to evaluate whether the procurement procedures were compliant with all applicable laws and statutes. The government bodies need to choose the appropriate placing procedures (open procedure, restricted procedure, negotiation procedure or competitive dialogue) and need to comply with the chosen procedure pertaining to the indication of the procurement criteria, the drafting and publication of the relevant specifications, and the evaluation of the suitability of the tenderers and their respective tenders.

For the procurement of IT goods and/or services government bodies usually use the EVB-IT contract forms as general terms and conditions of purchase. Therefore, the legal and economic terms and conditions for tenders widely depend on the terms and conditions of the relevant EVB-IT forms and the related contracts. Both purchaser and tenderer need to know and adhere to the different EVB-IT types as they have considerable impact to their tenders. You may find a commented version of the EVB-IT in our book “Allgemeine Geschäftsbedingungen von IT-Verträgen: Wirksame Gestaltung und Verwendung für Praktiker(in German).

We provide the following services to tendering companies as well as government bodies:

      • Legal and strategic advice in drafting of tenders and procurement procedures
      • Supporting government bodies in the choice and performance of all necessary procurement procedures
      • Evalutation of re-examination of tender
      • Consulting on EVB-IT contracts

Legal IT compliance

IT compliance, reduced to the essentials, deals with the following question: Does your company’s IT infrastructure and do the related processes (e.g. archiving of e-mails) comply with the regulations applicable to your company?

The following legal requirements are particularly important for all companies:

  • File storage requirements according to commercial as well as tax laws
  • Data protection law
  • Employment law

Depending on the industry sector of your company, further legal requirements may be important such as regulatory laws with respect to financial institutions, special file storage requirements, and/or special technical demands on development processes for companies manufacturing safety relevant products.

We perform the following services pertaining to IT compliance:

  • Legal examination whether your IT infrastructure and/or your IT processes may need to be changed
  • Setting up of IT compliant processes
  • Provision of all necessary legal documents (e.g. agreements with respect to external data processing companies, agreements according to employment law, corporate guidelines, etc.)

IT freelancing

If you work as a freelancer in the branch of IT or if your company works with IT freelancers, either directly or via a consultancy firm, you will be confronted with very special contractual agreements with particularly contrary interests: Whereas the IT freelancer needs to take care that his/her professional freedom is not unduly restrained, the consultancy firm that brokers the freelancer’s services to its customers needs to protect its client base against potential direct competitive access by the freelancer.

Moreover, all three parties involved need to adhere to the applicable laws on temporary-work employment in the event that the freelancer works full time for one specific customer for an extended period of time. Therefore, the drafting of such agreements as well as their execution and the performance of services under such agreements need to be carefully monitored to avoid the legal and factual risks in this particular constellation.

We provide the following services to IT freelancers as well as consultancy firms and customers who order freelancing services:

      • Provision of contractual master agreements
      • Protection against prohibited employee leasing
      • Examination of provided drafts of agreements and their negotiation
      • Examination, drafting and enforcing of non-competition clauses
      • Out of court negotiation
      • Litigation

Internet law, Social Media, E-Commerce

In the 21st century almost every company uses the Internet as a marketing platform. Social media are omnipresent. Although there may be people who believe that the Internet is a place where the law does not exist, this is not the case. On the contrary, if you do business in a certain country and distribute your products and/or services in this country, you need to comply with all relevant local laws and adhere to them in your commercial use of the Internet in that particular country (contract law, competition law, trademark law, etc.).

Moreover, you need to act in accordance with quite a few special laws on the use of the Internet in your commercial activities, such as for example special requirements pertaining or the laws on the protection of personal data and competition law.

We provide the following services on Internet law:

      • Provision of general terms and conditions for companies conducting e-commerce
      • Legal advice regarding provision and use of social media
      • Provision of general terms and conditions on the use of an Internet platform
      • Provision of legally compliant data protection policies for all companies using an Internet platform
      • Checking up on Internet platforms pertaining to their compliance with competition law and trademark law
      • Taking action against defamation on the Internet
      • Internet domain related problems
      • Out of court negotiation and litigation services

IT security, Data protection, Cloud Computing

In Germany, the protection of personal data has constitutional status. As a result, all contractors need to comply with all legal provisions on the protection of personal data, on two bases: One, in their business transactions with their customers, and two, in their companies’ own sphere such as, among other things, pertaining to their employees. Moreover, the increasing use of cloud computing and the international transfer of personal data within the corporation structure and by means of the use of the Internet including social media has brought legal questions pertaining to IT security and the protection of personal data into focus. Questions regarding the cross border exchange of data remain pending. New laws are coming.

We provide the following services pertaining to data protection issues:

      • Provision of data protection documents and contractual agreements
      • Terms and conditions on the protection of personal data including data transfer outside the European Union
      • Evaluation of your business transactions and processes pertaining to their compliance with the relevant laws on data protection
      • Cloud computing agreements with IT service providers: Check-up
      • Legal advice pertaining to questions regarding international data transfer within the corporate structure and regarding the use of the Internet, including social media
      • Out of court negotiation and litigation