Service Descriptions and Service Levels in the Digital World

Abstract

As lawyers negotiating a contract we have a duty to our clients to protect their legal, commercial and business interests and we do so with great enthusiasm and skill for topics like warranties, intellectual property ownership and limits and exclusions of liability. However in an information technology (IT) service contract the fundamental building block from which all other provisions are arguably derived (including the charges) is the description of the services to be provided and the committed service levels in accordance with which they will be supplied. These vital topics, usually set out in a schedule or appendix to the contract, are I suggest, often not addressed with sufficient care and the attention to detail that as lawyers we give to the terms and conditions. In some contracts the service description takes on a life of its own and is often not really constructed so as to be a part of the overall agreement. In other contractual contexts it is overlooked or hard to identify at all, even though it is such a vital component. I always ask what service is being provided and for what price before reviewing any draft contract in order to put any advice I provide in context. The risks associated with a straightforward support service are fundamentally different from those associated with the outsourcing of all the IT functions of an organisation.