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

• Author: Eliza Mik
• Position: Singapore University of Managemernt
• Pages: 127-128

JICLT

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

elizamik@smu.edu.sg

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.