Q: Why are technology contracts always so terribly written? The basic description of the service or product is often circular. The pricing clauses are vague. The over-emphasis on "intellectual property" presumes that the customer wants to steal the system.
A: Technology contracts are adapted from contract forms used back in the days when technology consisted of mainframe computers, dumb terminals and functions that worked only some of the time.
Vendors could not promise much, so they made sure that their lawyers did not draft contracts that committed to anything except to provide access to whatever the developer was then offering.
Nowadays, customers don't really care about hardware or software. They want functionalities that correspond to the vendor's marketing promises, and they want a good deal. So we have a disconnection between what technology contracts are about and what they should be about.
Here are a couple of examples. If you use Apollo or Worldspan, you sign a Travelport agreement that promises to provide you with access to the "Travelport GDS." You naturally expect a description of what those quoted words mean and a promise to provide what is described, but you get a definition that says in part that the "'Travelport GDS' means the Travelport global distribution system ... operated by Travelport."
Under Sabre contracts, "The Sabre System does not include the System (as hereinafter defined) ... 'System' means the Sabre Access. 'Sabre Access' means the System Software. 'System Software' means any software delivered by Sabre to Customer under this Agreement." Got it?
GDS contracts are only slightly worse than contracts for any other technology. Almost all offer the "System" or the "Service," which is defined to mean whatever the vendor says it means from time to time.
After skimping on descriptions of what the system does, all such contracts dwell at length on the vendor's "intellectual property" and your duties to protect the vendor's rights to it. Most customers have no idea what such clauses mean, and the vendors are no doubt happy to keep it that way.
You should try to request revisions to make sure that the vendor promises what you expect.
Start by incorporating the functionalities in the vendor's promotional material, and add a commitment that the vendor will provide those services. If the functional descriptions are lengthy, you can add them as an appendix to the agreement.
Describe the functions in simple sentences using action verbs, such as "The System will perform all 33 quality checks listed in Appendix A" -- not mere noun phrases like "quality checks."
Make sure all charges are set forth clearly, that there is a ceiling on all charges and that there are no charges to be determined later.
Add a right to terminate after six months or so if you are not satisfied with the system.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].