Legal practitioners often lack the knowledge about information technology to enable them to draw up agreements, covering all aspects that need to be managed between the contracting parties. This is the view of Charl du Plessis, managing director of IT Obligation Management Services (ITOMS).
A number of specific IT-related factors tend to make obligation agreements very risky. IT-specific services, product descriptions, guarantees, liabilities, pricing structures and other aspects are usually unique to an agreement. Furthermore, not often will one find two agreements with the same terminology, structures, services and product descriptions.
IT service and product supplier agreements tend to be very one-sided and descriptions of offerings seem to be extremely vague, to the extent that customers find it difficult to grasp what they are entitled to and what they are paying for. Due to the unique situation in the South African market -- from weather conditions, extreme travelling distances, to the general condition of customer equipment - product and service providers are reluctant to over-commit on any product, delivery or obligation issues. The lack of legal knowledge on aspects like exemption clauses and indemnities, as well as risks involved with penalty clauses, IT companies tend to under-commit. This in turn leaves the customer unsatisfied with the commitment or product procured.
The lack of legal knowledge has resulted in IT companies and corporate customers signing seemingly "standard" agreements like credit applications without understanding the commitment or obligations placed on them. The realisation of what they have agreed and committed to unfortunately only surfaces when the agreement is enforced through legal proceedings.
Many contracts make provision for arbitration in case of disagreement between the contracting parties in respect of aspects governed by the agreement. A specific arbitrator is not always defined in the agreement, in most cases the contract only makes provision for the parties to agree to a neutral third-party. Furthermore, it can be difficult to agree on a third-party and obtaining these services can also be excessively expensive.
Like in many other specialised industries, a meeting of minds between contracting parties are often a nightmare to reduce in words. Where the services of a legal practitioner is required, it can be construed as a tri-party meeting of minds, where the legal practitioner not only has to understand what the agreement entails, as perceived by the contracting parties, but also has to reduce it into writing in a manner, reflecting the contracting party`s intentions.
Then need for a single organisation to bring together the IT specialisation and legal fields in one affordable service offering is quite apparent. In addition, the potential customer benefits are just as evident. It was specifically with the intent to breach the gap between the legal and IT practitioner`s worlds that lead to the formation of ITOMS.
ITOMS specialise specifically in the areas of legal consultation services within the IT industry, with specific reference to obligation management. This includes aspects like contract and tender drafting and interpretation, arbitration services and general legal advisory services offered to both the industry and corporates making use of the services of the IT industry.
The ultimate goal is to aspire that agreements and other IT related obligations are clear to all parties involved and that neither a legal, nor IT specialist is required to understand and enforce stipulations. This can only be achieved if the specialisation of both these fields is combined into one body. The technical complexity of the obligation will, in large, determine to which extent this goal can be achieved. As a minimum requirement, all parties should be clear on their obligations and the legal requirements relating to it. This is achieved by ITOMS through the combination of its experts in both the legal and IT industry in one transparent service offering to its customers.
For more information, phone Charl du Plessis at (012) 662 2606.
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