Book Review: Drafting and Negotiating IT Contracts, 3rd ed

AuthorEliza Mik
PositionSingapore University of Managemernt
Journal of International Commer cial Law and Technology
Vol.9, No.2 (2014)
Book Title: Drafting and Negotiating IT Contracts, 3rd ed
Editor: Rachel Burnett, Paul Klinger
Year of Publication: July,2013
Price: £180 + 10% VAT
ISBN: 978 1 84766 712 0
Format: Hardback and CD-ROM
Availability: In print
Book Review: Drafting and Negotiating IT Contracts, 3rd ed.
Eliza Mik
Singapore University of Managemernt
This book is basic. Basic in the good sense: it is the first go-to work for IT professionals, especially
procurement or contract managers and possibly also for lawyers that are starting their careers in the field
of negotiating and drafting IT contracts. It provides a very good bird’s-eye view of the legal issues, as
well as the more r ecent developments in IT itself. It serves as a good point of reference and can be
consulted without necessarily following the chapter sequence. The book is up-to-date on such novel
topics on cloud computing and Software-as-a-service (SaaS), which are discussed in sufficient detail. The
authors’ explanations of the core legal issues arising in the context of new technologies are very
satisfactory. The ch ecklists and contractual templates are very useful, regardless of whether you are
staring out in the field or whether you are a veteran who simply wants to conduct last-minute verification
whether everything has been addressed. Particularly useful for non-lawyers are the first 6 chapters, which
provide a good outline of not only the law of contract but also the foundations of confidentiality
agreements and an explanation most frequently encountered contractual clauses. Lawyers and non-
lawyers alike will enjoy th e clear descriptions of the business context in which particular agreements
function. Chapter 9, for example, discusses various distribution models of computer products or IT
services. Mentions of the application services provider (ASP) model are particularly interesting although
the topic is strewn over 2 chapters. The writing is accessible and unpretentious. Not something to be taken
for granted nowadays.
There are some aspects of the book, h owever, that require further refinement. On one hand, the
authors emphasize that the reader sh ould consult a l awyer – which precludes any claims as to the book’s
completeness or exha ustiveness. At the same time, th e authors emphasize the importance of contractual
risk allocation. This is probably the main weakness of this book: there is relatively limited information on
this issue and only the most basic examples of the relevant clauses, e.g. liquidated damages. There is also
relatively little on exclusion clauses and indemnities. The latter are, after all, the main tools of contractual
risk allocation. Needless to say, th ese topics are so rich and complex that a book of this kind cannot be
expected to provide an exhaustive overview of the issues. Speaking from experience, apart from
specifications and price, theses three areas (i.e. exclusion clauses, indemnities and liquidated damages)
are often the m ost contentious and heavily negotiated provisions in a contract for IT services. They can
also directly affect th e price of the contractual deliverables. It would have been helpful to provide some
more guidance on these issues, especially gi ven the recent legal developments affecting a ll thr ee areas.
Similarly there is only very little on service level agreements and services credits, which can often be
regarded as “camouflaged” liquidated damages and might be a way of sidestepping the rule a gainst
penalties. It is intricacies like these that are really important when structuring risk allocation and pricing –
especially in larger IT projects.

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