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Contracting in the Computer Industry

Publication Title

Washington University Law Quarterly

Abstract

It is the responsibility of the lawyer to upgrade contracting procedures in order to meet the needs of the computer user. Simply incorporating by reference the proposals, correspondence, and communications between the parties would do much to improve the legal position of the purchaser. Moreover, by establishing firm standards that would govern delivery dates, warranties, and software performance, satisfaction of the parties’ reasonable expectations would be aided greatly. The key is to draft a contract that views the procurement process from the user’s perspective. In this Article, Richard L. Bernacchi discusses the special problems of computer contracts. Although data processing systems have assumed an integral role in an increasing number of businesses, lawyers have only recently begun to confront the problems created by this new technology. Bernacchi acknowledges that the technological complexity of data processing and the absence of agreed upon definitions for the technological terms within the industry have thus far overwhelmed lawyers. These problems are surmountable, however, and Bernacchi outlines several steps that will enable lawyers to control and direct computer contracting. Beginning with the premise that a computer hardware or software system purchaser expects to receive a complete system designed to meet his needs, the lawyer should incorporate into the contract by reference all proposals and correspondence concerning the purposes for which the computer system is being purchased. He should also establish standards to govern delivery dates, and specify individual steps in the delivery process, tying compensation to the performance of each step. In addition, the lawyer should provide for remedies in case of breach to ensure that the nonbreaching party can meet his immediate needs without resort to the courts.

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