Contract design for software implementation – how significant are fairness and transparency?

Software implementation naturally requires a well-founded, contractual basis. In this area – as in almost all major IT projects – particular emphasis should be placed on the specifications so that both the ordering party and the contractor can see at any time which specific work results were agreed and whether the ordered service has been fully provided in accordance with the contract.
Vertragsgestaltung bei der Software-Implementierung

However, as well as these strictly legal matters, two other aspects that are often neglected and can quickly lead to a project failing or, at the very least, exceeding the given budget and timeframe, should be considered when it comes to the actual implementation of a project. These are transparency within the ongoing project and fairness when dealing with the other parties to the contract.

Up-to-date, constructive agreements within the ongoing project are only possible when all those involved are clearly informed from the very start about what stage the project is currently at, to what extent the departments involved have implemented their respective tasks and, if applicable, whether external parties have delivered their contributions to the project. Ensuring this transparency should be the responsibility of the project manager. After all, it is his or her job to bring the different parts of the project together, meaning he or she is most likely to be in a position to create this overview. However, as the project manager already has a considerable workload to coordinate the project, he or she can only guarantee this transparency if all those involved in the project actively report progress in their own areas instead of waiting until they are asked about the status of their work.

This transparency throughout the project allows early coordination with all those involved. It thus prevents the inefficiencies that always arise when various areas of work are intertwined and departments are forced to coordinate with those responsible for the preliminary work needed for their own contribution. Transparency also means that potential problems can be recognised at an early stage and counteracted from the start. Ultimately, transparency within the project means that everyone involved knows from the beginning what goals are to be achieved. This also allows targeted distribution of the necessary resources.

Even if a project was outlined in a contract, which naturally regulates the various rights and duties of the persons involved, it is important to remember that treating contractual parties fairly also makes a major contribution to the success of a project. There is little point in basing your actions solely on what is contractually binding. Friction is avoided when treating one another as partners not only improves the work climate but also increases the motivation of all those involved Treating each other fairly should not lead project participants to change contractual specifications by the most direct route, for example by agreeing among themselves not to perform contractually agreed services or to implement them in a different way.

Informationstechnologie und Immobilien (IT&I) Ausgabe Nr. 37 / Mai 2024

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Nonetheless, treating one another with tolerance greatly increases the willingness to judge the other party’s mistakes less harshly. Particularly when it comes to the required cooperation by the ordering party, project progress is much faster if the ordering party actively approaches the contractor and asks about any potential support that could be provided instead of withdrawing and waiting for a request from the contractor.

Accordingly, transparency and fairness in joint IT projects are key basic requirements for success, even if they have not been explicitly contractually agreed.


Stephan Wiedorfer
Stephan Wiedorfer

was born in 1967 in Munich. He studied law in Munich and, during his traineeship, worked in New York for six months for Germany’s largest record label. He has been a member of the bar since 1996 and founded his first law firm in 1999. He specialises in consulting in the field of computer and Internet law, including procedural enforcement of the relevant claims. His other areas of activity include trademark, copyright and competition law. Stephan Wiedorfer has been a certified specialist for industrial property rights since 4 February 2008. He is a member of the Deutsche Vereinigung für gewerblichen Rechtsschutz und Urheberrecht e. V. (GRUR; German Association for Industrial Property and Copyright), the Deutsche Gesellschaft für Recht und Informatik e. V. (DGRI; German Association for Law and Informatics)) and the Arbeitsgemeinschaft Informationstechnologie im Deutschen Anwaltverein (DAV-IT; Information Technology Working Group of the German Association of Lawyers).

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