Technology contracts: creative relationships require creative agreements

This week we are delighted to feature a guest post from Olivia Whitcroft.

Picture the scene: it is 1993 and the forward-thinking Telecommunications Manager at Big Industry Ltd has decided to introduce e-mail communication. A provider is selected, phone lines and modems are discussed, and fees and set-up dates are agreed. A contract is drawn up and sent (by post) to the provider for review.

It soon becomes clear to the provider that he has been sent an agreement for fax machine maintenance. It details response times for fixing hardware faults, and addresses paper and ink cartridge replacement. He raises these concerns and is told that Big Industry will accept a few tweaks, but there is no time for lengthy negotiations. The provider therefore signs the contract and the parties move forth into the unknown territory of providing e-mail within a framework of fixing fax machines.

This story represents the frequent disconnect between the terms of technology contracts and the services which are actually being provided. With the rapid development of technology, small providers are often first on the scene with innovative opportunities, but insufficient time and resources are given by their (often larger) customers and partners to consider a bespoke contract. The provider is presented with "standard" terms which range from something slightly inappropriate to complete nonsense!

More up-to-date examples include mobile app services under contracts for face-to-face or web delivery; or resellers of technology services appointed using end user agreements. Software development agreements often do not reflect intended use of source code or copyright. Provisions on use of data are frequently unsuitable: identifying one party as a data processor, when it clearly behaves as a controller; promises to keep data in the UK, when it is entrusted to a US cloud pro