The concept of outsourcing is often discussed in the IT industry. On the one hand, the ordering parties want to “throw away” many services from the company, and on the other hand, thanks to this, a whole market of IT service providers has been created. Sometimes these are companies that provide only outsourcing services – that is, they are a kind of intermediary between specialists and end customers.
What is IT outsourcing?
IT outsourcing is a business strategy in which enterprises use the services of external suppliers who specialize in the field of information technology. The decision to use IT outsourcing often results from the desire to focus on the key competencies of the company and to gain wider access to expert knowledge, which is often lacking in internal teams within a given organization. It is worth noting that IT outsourcing is not limited to using the services of programmers or network administrators, but also covers many other areas, such as IT infrastructure management, ongoing technical support or development of existing software.
Why is outsourcing so popular?
One of the biggest advantages of outsourcing IT services is the reduction of company operating costs. Thanks to outsourcing, the company does not have to invest in hardware, software, training and maintenance of IT employees. Another advantage of outsourcing IT services is access to modern technologies and best practices in the IT industry. Outsourcing also allows enterprises to focus on their core business and strengthen their competitiveness in the market. Instead of dealing with IT-related matters, enterprises can focus on producing and selling their products and services, which in turn increases their efficiency and productivity. Finally, the outsourcing of IT services allows enterprises to adapt their IT needs to changing market and business requirements. Thanks to the flexibility of IT service providers, enterprises can quickly and easily adapt their IT services to changing needs.
From the point of view of an IT service provider, outsourcing is a good way to develop a company. Often companies providing IT services create a new business line in the form of outsourcing. Suppliers are entities (persons) for ordering parties who know how to select specialists and manage projects. It may seem that the supplier is only an intermediary, but in most cases, without this intermediary, outsourcing would not be carried out at an appropriate level.
What should you pay attention to from a legal point of view? From a legal point of view, there are a few things to watch out for in outsourcing agreements. The most important are: responsibility, intellectual property, and accessibility.
Legal responsibility in outsourcing
In the case of responsibility, its scope should be adapted to the outsourcing model. For example, in the case of one of the most common outsourcing models, i.e. body leasing, the service provider’s responsibility is limited to providing specific IT specialists (or a team of specialists). Such a supplier should not be responsible for either the outcome of the work or the management of these specialists. The supplier, on the other hand, should certainly be responsible for personnel issues, i.e. settlements with specialists and for issues related to intellectual property. In one sentence, the supplier is responsible for the organizational area but not for the substantive area.
In other outsourcing models, e.g. in service agreements (SLA) or in the outsourcing of entire IT, programmers or HR departments, the supplier is responsible not only for the organizational area but also for the content.
Intellectual property in outsourcing
In most cases, during the implementation of IT outsourcing services, intellectual property is created, e.g. in the form of a computer program, i.e. a work within the meaning of copyright law. Thus, a “chain” of transferring economic copyrights is created, which is important both from the point of view of the contracting authority and the contractor. The contracting authority should absolutely include in its contract a provision regarding the transfer of proprietary copyrights and possibly add a contractual penalty if it turns out that the contractor cannot effectively transfer these rights to the contracting authority (or has already ineffectively transferred them because it did not receive them from its specialists). Therefore, the IT service provider should control whether, firstly, any copyright transfer clauses are included in its contracts with specialists, and secondly, whether the scope of these clauses is the same (or wider) than the clauses contained in the contract with the ordering party.
Availability
Regardless of whether the outsourcing service provider is responsible only for the organizational area or for the substantive area, it usually undertakes to ensure a certain level of availability of its services. The ordering party of IT services should pay special attention to this and link it to the issue of liability. Availability includes, for example, ensuring the supply of a specific number of specialists, ensuring the level of competence of specialists, ensuring response and repair times, ensuring the level of system availability. If this availability is not implemented, the contract should provide for a recovery plan, and in the event of its failure, the possibility for the contracting authority to quickly terminate the contract.