Comes to IT procurement, there remains to be a significant room for improvement. In fact,  many of the contracts sitting in your filing cabinets  today are likely to contain dangerous gaps and areas subject to interpretation, which may come into into  play one day, in the most unpleasant of fashions.  I have seen many legally binding agreements that would fail when you need them most that I thought it would be useful to list a few points that should help to prevent a disaster.

I am a believer in hiring a professional when you need something done well. An IT agreement for a business critical system or service and a non-trivial consideration is not a place to skimp on legal help. Get a lawyer involved.

Disclaimer: I am not a lawyer, nor am I associated with any law firm. This is a completely unbiased opinion. Please do not ask me to recommend anyone.

Key success factors (in no way an exhaustive list):

1. I suggest to establish a relationship with a legal professional who specializes in technology contracts at a partner level of a larger law firm.

2. Do not simply rely on your house legal counsel. (Caveat: many technology firms have experienced legal professionals on staff who can easily trump any outside help. )

3. Establish a trusting relationship – this is essential.

4. Only work with a firm/professional who are willing to understand your business.

5. There is an advantage in working with a larger law firm as they will be able to leverage their other competencies, such as labour, intellectual property or international law experience.

6. Never simply sign the standard vendor agreement. (Caveat: I would like to have a different contract terms for my home phone, but I can’t. I am not talking about cases like this.)

7. Involve the lawyer early in the contracting process. Do not simply ask them to “check it over when we are done negotiating”.

8. Establish the understanding that you are the one driving the negotiation process, not the lawyer.

9. Ditto for your opponent – explain that you are in charge (usually they will agree and assert the same on their side, if they don’t, ask for it). If you don’t do this, you risk listening to bickering over legal terms ad nauseum (and paying for it, too!)

10. It is possible to make every contract completely watertight, it is just not practical. So, you have to compromise.  Listen to what your legal professional is telling you but apply business sense to everything you hear.  Is the problematic scenario too far fetched ? What is the worst that can happen? Do we have other means of mitigation?

11. It is ok to start with the vendor’s standard contract as a template – this will speed things up. If you start with your own, you may lose a lot of time waiting for the counterparty’s legal to review it. Sometimes, they just won’t entertain it at all.

12. The key to closing a contract is in finding common points and converging on differences. It is never an “us against them”.

 13. Keep your own house legal counsel informed of the process. They may want to take a look at the contract before it is signed, in fact, it may be mandatory. If they raise points, listen to them and seek to address, but beware of situations when the “not invented here” syndrome kicks in and trivial points are raised just for the sake of it.

14. Ensure that you and your law partner are clear on fees. I strongly suggest seeking an equitable fixed fee arrangement.

15. Maintain the relationship going forward. Ask to keep you apprised about developments in technology law. They should be happy to oblige.

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