IT 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.

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

We perform the following services on IT contract law, for companies providing IT-Services as well as purchasers of IT services:

• Drafting and negotiation of master agreements and customer specific requests for modifications and/or enhancements
• 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
• Support with contract preparation and selection of the right contract partners, contragt negotiations and contract implementation
• Providing preventive legal advice
• Taking all necessary legal action to enforce the relevant contractual rights
• Out of court negotiation
• Litigation,

all of the above in Germany and/or internationally/globally.

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 corporate structure and by means of the use of the Internet including social media has brought into focus legal questions pertaining to the protection of personal data and IT security. The regulations of the GDPR (General Data Protection Rule) have to be implemented, adhered to, and controlled by every company. Legal questions with regard to data transfer outside of the company and 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
    • 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

There may be a variety of motives for you to outsource your IT infrastructure to a service provider. Strategic or financial considerations can 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 the 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

Government contracts in the IT sector are often awarded on the basis of the EVB-IT. A commented version of the EVB-IT Überlassung Type A can be found in our book “General Terms and Conditions in IT Contracts: Effective Drafting and Use for Practitioners”, Heidelberg, 6th ed. 2018. A further description of and annotations to the EVB-IT is available in our book “Procurement of IT Performances and Services“, Heidelberg, 2nd ed. 2022.

We consult and support both the government side and the supplier side with the following services:

• Review and editing of the applicable EVB-IT
• Tailoring of the EVB-IT to the specific case
• Advice on the effects of the EVB-IT for the individual case

As a rule, the EVB-IT are applied in award procedures. We provide support to the public sector and the bidder side in these procedures as well. You can find more details here.

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:

• Data protection law regulations, in particular the GDPR on the use of personal data
• Employment law
• File storage requirements according to commercial as well as tax laws

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.)

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

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