Abstract: The blog post addresses the question of how much documentation of add-ons and custom developments is required to ensure smooth maintenance and further development. It is emphasized that adequate documentation is essential to save time and costs and to avoid problems and that this must also be delivered as part of a commissioned software development.
As mentioned in Blog 31, I had the privilege of working with Dr. Christian Förster, a very experienced lawyer specializing in IT law, to clarify a number of contractual situations as a representative of the user with various IT service providers over the course of the past year. What follows may be self-evident for many of you, but it was not for me – and, as I discovered, not even for the CEOs of individual IT service providers.
A controversial point
A major point of contention was whether and to what extent documentation for the add-ons provided by the contractor as well as for the additionally created individual developments/configurations or customizations had to be created and delivered by the contractor as an integral part of the work performed. In particular, this often falls “behind” because in the IT sector almost all parties involved prefer to design and develop rather than document.
However, the case law on this is relatively clear (BGH NJW 2001, 1718):
“The subject matter of the agreement between the parties according to the most recent state of the contract [was] a uniform agreement on the production of an IT system including hardware and software individually tailored to the needs of the plaintiff, which is to be legally classified as a contract for work and services. Within the scope of such a contract, the contractor who has to manufacture and deliver the system is regularly also obligated to provide the customer with documentation which enables the customer to work with the system. The provision of such documentation is one of his main obligations, and the breach of this obligation may trigger the rights under Sections 325, 326 of the German Civil Code [damages, rescission] on the part of the customer.”
This means:
- Documentation is always owed for the creation of individual software or the individualization of standard software.
- The documentation must allow the customer “to work with the system”, which includes maintenance etc.
- It is not only a “secondary obligation”, but a so-called “primary obligation”, the breach of which allows the customer to claim damages or to withdraw from the contract.
- Since documentation must always be provided, this obligation must be contractually excluded in order to be omitted.
In my experience, there is a great need for companies to catch up on clarifying such issues so that they are not repeatedly and constantly taken advantage of by their service providers in the IT environment. Legal compliance and legal certainty is an essential basis for reducing potential conflicts in the future and for dealing with each other in a cooperative, transparent and fair manner.
Any questions? Please contact us:
We will be happy to offer you our support upon request (). Together with Dr. Förster, partner at Bartsch Rechtsanwälte in Karlsruhe (), we will accompany you in the creation/finalization of new contracts with your IT service providers and will also be happy to review existing contracts, point out the deficits and existing legal uncertainties and make concrete suggestions on how to eliminate them. Ideally, such an engagement will result in a corresponding understanding of these specific issues on the part of your responsible purchasers, who will from here on be able to avoid legal deficits to your disadvantage in future contract negotiations from the outset, independently and on the basis of a checklist prepared for them by us.
Feel free to contact us and get a first impression of what we could achieve for you by combining our competencies and experience in a joint meeting with Dr. Förster and myself, Christian Schütte.