The Times are Changing in I.T. Contract Negotiations

An educational session at HIMSS13 in New Orleans will focus on new trends in information technology contracting. Changes in technology are changing how contracts should be negotiated and there are certain legal and business terms that a customer needs in every I.T. agreement, says Diana McKenzie, session presenter and a partner in the law firm Hunter, Maclean, Exley & Dunn P.C.

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Comments (1)
This is the kind of legal advice that ends up making working relationships between providers, vendors, and clients ultimately adversarial. Adversarial relations are something that attorneys live with every day, but people, who are in other businesses in which relationships extend far beyond the time it takes to write a contract or to litigate a dispute, find that adversarial relationships are like poison in the well.

Advising a client to invoke an ancillary services clause and a cooperation clause in every contract is to suggest that the client bears little responsibility for the outcome of a project. It is similar to hold harmless clauses that require one of two parties to defend the other in court when the matter that may have landed in litigation was no fault of the signatory.

There was one instance in the not so recent past when I was presented with a contract prepared by a large healthcare provider's legal staff. It contained a hold harmless clause, too. The project was to create an interactive voice response system for the provider that would connect the telephone system to the provider's database and to accept data from physicians and to deliver data to patients without human intervention. I pointed out to the provider that such a system design was protected by a number of patents held by Ronald Katz, probably the holder of the largest number of patents related to IVR and call center technologies. I pointed out that the provider would have to license the use of his patents before I would undertake to develop such a system and that if anyone would be required to hold someone harmless, it would be the provider holding me harmless. Needless to say, the provider decided not to hire me since I wouldn't roll over to accept such terms in contravention of my own common sense.

The core of good contractual negotiations is honesty and integrity. It is only when someone knows that he is dealing or may be dealing with another party that fails on both counts that Orwellian legalese becomes necessary, but in any event, predation in the form of legal intimidation is still unacceptable and acts as a deal-killing business repellant.
Posted by rdefazio | Wednesday, January 16 2013 at 2:59PM ET
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