Aitava provides customized support for all aspects of IT contract law.
Aitava has many years of extensive experience in IT contract law. Whether standard terms and conditions, individual drafts or complex projects, whether data, software, hardware, networks or systems – Aitava is happy to assist in drafting, reviewing and negotiating all types of contracts in the digital world. We represent both service providers and clients. From small businesses to large corporations. Our team has experience from many years working in the legal department of a leading global technology company. This means that we have a pragmatic view of the practical feasibility of each contract in the business.
Our Services
The full range of IT contracts
We have extensive expertise in the most diverse areas of IT contract law and have, among other things, already drafted, reviewed and negotiated the following contracts.
- Creation, adaptation and introduction of software or systems
- Outsourcing of IT and IT-supported business processes
- All types of cloud contracts
- Transfer of software on a permanent or temporary basis
- Support and maintenance of software
- Procurement of hardware on a permanent or temporary basis, including embedded software
- Maintenance and servicing of hardware
- Data license agreements
- Hosting contracts
- Platform contracts, e.g. for industrial app stores and marketplaces
- Distribution of software and hardware
Software Development
Contracts for software development have three core tasks:
1. A Minimum Degree of Legal Certainty
- Acquiring the necessary intellectual property rights
- Warranty and liability
- Compliance with legal requirements (including GDPR, German Act on Temporary Agency Work)
2. Allocation of Project Risks
- Performance risks (contract to produce a work or service contract?)
- Time risks (milestones?)
- Budget risks (T&M or fixed price?)
- and much more
3. Project Feasibility
The contractual provisions must be appropriate for the project. They must not only describe the “ideal” project process, but also anticipate possible changes and deviations. The best clause is of no use if the parties cannot live by it in the reality of the project.
Software Licenses
Even though software is increasingly being obtained “as a service” from the cloud, the various issues of software license law are still highly relevant. The increasing use of technical users is pushing user-based license metrics (named user or concurrent user) to their limits. The trend is towards usage-based metrics (e.g. number of transactions). The question of so-called “indirect use”, in which one application accesses another application, also repeatedly becomes relevant. The difficulties of complex license models often come to light during audits.
Companies often purchase software from providers based abroad or even outside the EU, such as the US, UK or Israel. Even if German law is agreed, the content of the standard software license agreements of foreign providers often do not fit the concepts of German civil law. This can lead to uncertainties in critical areas such as scope of services, warranty, liability and withdrawal or termination.
We support you with our technical and legal expertise on all licensing issues.
Support and Maintenance
The procurement or creation of software is usually associated with a support and maintenance contract. Likewise, an agreement on maintenance or servicing is a good idea when purchasing hardware.
We help you to clarify all the important issues, including:
- Which activities of the service provider are included in the agreed (flat-rate) remuneration?
- Is the service provider only obliged to take action or achieve a result (troubleshooting)?
- When exactly do response and resolution periods begin and end?
- Can the service provider demand compensation for the remediation of errors, for example, in accordance with the maintenance contract if the customer can claim remediation of defects under the procurement contract, invoking his warranty rights?
- Does the early termination of the procurement contract also automatically lead to the discontinuation of the maintenance or service contract, and vice versa?
IT Sourcing and Public Procurement
The procurement of IT services poses challenges for both customers and service providers. A planned approach and project management are required, especially when several IT services are to be procured in parallel and several providers are being considered. Often, a formalized, step-by-step approach will be appropriate for the customer (request for proposal, evaluation and down selection, several concurrent negotiation rounds). From a contractual point of view, a framework contract with modular service certificates and topic-specific appendices can be a sensible approach here.
The relevant public procurement regulations apply to the public sector. These not only regulate the procedural sequence of the procurement process, they also contain substantive requirements for service descriptions and contractual conditions. The contracting authority usually has to use the Supplementary Terms of Contract for the Procurement of IT Services (EVB-IT). In many cases, however, the procurement requires comprehensive adjustments to the EVB-IT for the specific case and the combination of several sample contracts. In addition, there are situations in which none of the EVB-IT contract templates is suitable or in which the use of EVB-IT does not appear to be appropriate for other reasons. In such cases, an individual solution must be found and implemented in a legally secure manner.
Regulatory Requirements
For years, the nature and scope of regulatory requirements related to the procurement and use of IT services have been increasing.
One example is the Digital Operational Resilience Act (DORA) in the financial sector. DORA not only increases the requirements for managing risks arising from the use of third-party providers, but also significantly expands the scope of the contracts affected. Previously, the focus was on IT outsourcing, but DORA’s strict requirements apply to all IT services that a financial company obtains from a provider.
Such regulatory requirements are being extended to an increasing number of sectors. A prominent example is the future version of the German Act on the Federal Office for Information Security in implementation of the NIS2 directive, with its significantly expanded scope of application in terms of personnel and parallels to DORA in IT risk management and reportable security incidents.
In addition, IT products are increasingly being regulated, regardless of the sector in which they are used. For many companies, this will have an impact on supplier contracts. A current example is the Cyber Resilience Act, which imposes cybersecurity obligations on the manufacturers of affected digital products (one keyword here is “Software Bill of Materials”).
Aitava sets new standards
Focused in all phases
We rely on smart knowledge management and promote best practices. Efficiently. With a business focus. We support the entire lifecycle of the procurement and operation of IT products and IT services. From planning, tendering, contract creation, negotiation, implementation, renegotiation, to the end of the project. Even in a crisis.
Commodity & Customization
While a simple standard contract is sometimes perfectly adequate, in other cases a highly customized contract is needed. IT contracts differ not only in terms of the respective subject matter, but also in terms of factors such as business criticality, contract volume, regulatory environment, strategic goals of the client, available resources, time aspects, etc. We keep all these factors in mind and align our work products accordingly. We point out what is important and legally required, but do not artificially inflate contracts.
We know both perspectives
The Aitava team has extensive experience in designing and negotiating IT contracts from both the customer and service provider perspectives. We have represented customers from a wide range of industries in projects with German and international providers. At the same time, our team has experience from many years of working in the legal department of the world’s leading cloud provider. We combine focused representation of our clients’ interests with the ability to identify compromise solutions even in the most difficult negotiations.
