Clients often come to us asking how they can get rid of their IT supplier. Their reasons are many, and vary from performance-related concerns to wanting to reduce costs by deferring or going without the services. This has especially been the case during the recent economic downturn.
Of course, the problem with a contract for the supply of IT solutions is that it is just that — a contract. It means that, unless you have a right to get out of the contract, you are contractually bound to honour it until it expires. If you make the mistake of behaving as though you are not bound by a contract, you risk repudiating it — a legal concept which allows the other party to terminate the contract and sue you for the loss of it. In an IT supply sense, that usually means the profit the supplier would have made over the term should the contract have been performed, which could be substantial.
Terminate for convenience
There is a similar risk if you attempt to formally terminate a contract in circumstances in which you did not have a right to do so. I have had some clients simply write to their supplier and inform them in no uncertain terms that they are terminating their relationship with three months notice. There is no inherent right in IT or other contracts to do this. If you wish to have the right to terminate an agreement whenever you like, for any reason, you should ask that such a right be inserted into the contract when it is being negotiated. It is known as a right to terminate for convenience. Suppliers will often ask for a fee to be associated with the exercise of such a right. Whether or not you grant one will depend on the circumstances and your skill as a negotiator, but many recipients of services always like to have the option to terminate even if it means they have to pay a fee. At least the exit cost will be known, and with any luck the only legal fees you will have to pay will be in relation to the drafting of the termination notice.
If you did not expressly agree to a right to terminate for convenience, it is possible that one will be implied — in which case you will be able to terminate on reasonable notice. This is more likely to have occurred if you do not have a written agreement with your supplier. What constitutes reasonable notice will depend on all the circumstances, and may be difficult to pin down. Any expenditure by the supplier in relation to the service being provided will be relevant, as well as the period over which the services have been provided and the supplier’s ability to find other clients. Practically, the notice periods tend to be between three and 12 months, but this is not always the case. If you attempt to terminate and give notice which is shorter than what a court considers to be reasonable, the supplier may keep the agreement on foot or terminate it and you may be liable for the profit the supplier would have made had the notice period given actually been a reasonable one.
Depending on the terms of the agreement with the supplier and the manner in which they have performed, you may also have a right to sack your supplier for poor performance. It is known as termination for cause. The supplier must have breached the terms of the agreement in a sufficiently serious manner — this may be a right under the general or common law, or it may be a right pursuant to the terms of the contract. Either way, you should seek support from your lawyers to manage the process and to advise on whether or not the breach gave rise to a general law right of termination or fell within the terms of the contract that allow you to terminate in particular circumstances.
Next: Negotiating rights