Alison Berryman, Partner - Head of Technology and Commercial Law, Waterfront Solicitors LLP
Trainees, paralegals and 1-2 year PQE are invited to view this session organised by the SCL Trainee Lawyers' Group and designed as a companion and introduction to the SCL Annual IT Contracts Update 2021.
This event is divided into two parts and provides an introduction to IT contracts and refresher training.
Alison Berryman, Head of Technology Law at Waterfront Solicitors LLP will talk about the sorts of contracts you'll be faced with and the key differences.
This is followed by a practical exercise with a sample / skeleton IT contract, switching from a supplier focus to a client focused agreement. (The discussions in the breakout rooms were not filmed).
The event concludes with presentations of the discussions from each breakout room.
View or download the practical exercise document here.
Alison Berryman heads up the Technology and Commercial Law practice at Waterfront Solicitors LLP. Having trained at the firm and qualified back in 2006, she has spent the past decade and a half building up a practice primarily focused on supporting tech SMEs. Consequently, she has had the opportunity to work on a huge variety of technology contracts, and with some of the UK’s most innovative businesses.
In addition to her client work, Alison is the Training Principle at Waterfront and the number of trainees she has supervised is now well into double figures. She very much enjoys seeing trainees learn and their skills develop as they progress through the two year training period and beyond.
Alison Berryman's Top 10 tips for drafting tech contracts
Most of these apply to all commercial contract drafting – but that doesn’t make them any less important for tech contracts!
- Understand your client’s end goal. If you are drafting a contract, the client’s goal is usually to conclude a transaction... What is the purpose behind this transaction? How important is it to them? What’s the relative bargaining power between them and the other party?
- Understand the audience. Even though many of the underlying legal principles might be similar, T&Cs for an online B2C service that costs £10 per month will be drafted quite differently from an Enterprise SaaS MSA for which the customer is paying £millions.
- Don’t be a slave to precedents. They can provide useful guidance but there is rarely a “right way” to draft a tech contract. It’s more important that the words help the client achieve their goal.
- Focus on rights and obligations. This is really what the contract is about. Try to avoid including too much (if any!) other stuff.
- Get to grips with Intellectual Property Rights. It’s really important to understand whether the contract is dealing with IP (i.e. the customer/recipient is doing something that would be an infringement if not authorised via the contract), or whether the IP is being used to provide a service. If you aren’t already familiar with the types of IP rights typically found in tech, read up!
- Clearly define products and services OR if that isn’t possible upfront, clearly describe the process that you will use to define and, if necessary, accept the products and services. Does the customer need to provide input (“customer dependencies” such as customer data, materials or technology environments) as well as the supplier?
- Consider who’s getting paid, and how. Understand how payments (if any) will be made and the payment terms structured, and think about whether this has an effect on the duration or any other terms of the agreement. If charges are not fixed sums (e.g. commission or royalties) how are these calculated? Does either party need to produce any reports (e.g. timesheets or sales reports) for the other party to verify sums due?
- Think about what can go wrong. Who should be liable and how should we balance risk? Better still, can the parties anticipate issues in advance and avoid them completely? Can warranties help you articulate the way in which the core obligations should be performed, to avoid future problems..? Always ask whether the client has any key concerns that they think should be addressed to achieve their goals (see point 1!)
- Read the boilerplate clauses. It’s so tempting to assume they are always the same… read them properly to be sure they are right for your contract.
- Definitions. Just because they’re at the top, doesn’t mean you should read them first. Read them at the end to make sure they make sense and are all still needed.