Technology constantly changes. Firms are periodically put to the choice about whether to upgrade their technology or build a new platform. An expert software vendor/installer can greatly assist firms in making and implementing these decisions, increasing productivity and efficiency, and thereby helping a firm grow its business. Vendors are often selected after a thorough evaluation process involving the submission of requests for proposals and the evaluation of multiple proposals, culminating in the negotiation and execution of a complicated services agreement and associated statement of work. Once the agreement is executed and the firm’s IT department takes over, however, the details of the agreement and SOW can be overlooked, creating litigation risk in the event a dispute develops between the vendor and the firm.
There are numerous reasons such a relationship can become contentious. The technology and the parties’ contractual framework is oftentimes complicated. Disputes can arise out of implementation delays, product defects, service inadequacies, disputes over payments, personnel changes, shifts in technology, and even personality conflicts. A one-sided agreement can force a customer to absorb long delays, continue the use of a dissatisfactory or otherwise outdated platform, or pay exorbitant fees to terminate the services agreement. As a result, understanding and adhering to the terms of these complicated contracts in the event of a dispute is oftentimes critical.
To assist customers in minimizing litigation risk after a services agreement is executed, below is a checklist identifying the typical yet critical provisions in a services agreement. Careful attention to these provisions will greatly assist companies in identifying issues and minimizing litigation risk after a service agreement is signed.
1. Payment Schedule: The payment schedule will dictate whether and how much payment is owed.
2. Project Plan/Schedule/Milestones: Getting from contract execution to “go live” is often a long, expensive and complicated process. Clear timelines and the delineation of duties and responsibilities are crucial when a dispute arises. These are often found in the SOW.
3. Term and Renewal: The term of the agreement — and the starting date of the term — can dictate how much a customer has to pay to get out of an agreement or how long the parties’ contractual relationship will last.
4. Warranties: Warranty provisions can provide concrete performance requirements; a warranty can be a basis for terminating the contract.
5. Termination: The termination provision is often the most crucial term in the event of a dispute. Complying with any such a provision is critical to managing litigation risk.
6. Remedies and Damages: The contractual remedies are crucial to understanding the pros and cons of termination (or attempted termination).
7. Dispute Resolution: Any dispute resolution procedures are obviously a major consideration in any dispute and must be carefully followed.
8. Applicable Law/Forum: The forum and governing law is often critical to the cost and even the outcome of the dispute.