A Litigator’s View Of Pitfalls In Technology Contracting: Avoiding Common Mistakes

Technology contracting can be very different from other commercial agreements because the execution of a contract marks the beginning of a relationship meant to last years.¹ In these long-term, often complex commercial relationships, it is not surprising that much can and sometimes does go wrong. When disagreements over the rights and obligations of the parties escalate to actual or threatened litigation, the contract inevitably becomes the subject of considerable scrutiny.

Technology contracts are particularly susceptible to certain common contracting problems that become evident when a dispute arises. Issues that frequently create problems are discussed below, including agreements to agree, recovery of different types of damages arising from a breach of contract, and the effectiveness (or lack thereof) of limitation of liability clauses.