Duty to cooperate and duty to provide information
I have already explained in another blog that the IT company may have a duty to inform the customer about the scope and nature of the required cooperation obligations. The best example here is the customer's cooperation during the planning phase. The customer often has to explain, in the form of its administrators, exactly what the processes that the software is to track should look like. To this end, the employees are often asked to contribute their own wishes in the form of test/user cases. The problem with such work lies in its scope and in the fact that the employees are expected to carry out this work alongside their day-to-day business. The scope of such service obligations is often estimated to be a minimum of 3 times and a maximum of 6 times the amount of work that the IT company's employees have to perform. As this point is a real price driver, it is often not clearly stated by IT companies during contract negotiations. The courts are increasingly tending to make IT companies responsible for the failure of a project if the customer has not cooperated in the planning and a dispute over whether the software is ready for acceptance or not ultimately leads to the failure of the project. If the customer is not clearly informed of the scope of the obligations to cooperate, they can only claim non-fulfilment later to a certain extent.
Duty to cooperate and contractual penalty
The prejudice is: customers do not fulfill their obligations to cooperate. As customers usually want contractual penalties to be included in the contract to ensure that the IT company meets deadlines, it makes sense to turn the contractual penalty into a mutual instrument.
It has proven successful to impose contractual penalties on the customer according to the following model: The amount of the contractual penalty corresponds to the daily rate of an employee of the IT company. This contractual penalty can only be enforced after the company has been requested once with a deadline of 3 days and then again with a further deadline of 1 day to fulfill the obligation to cooperate. The assertion of the contractual penalty - and this is the lever - has the effect that the invoice must be approved by higher authorities. Failure to cooperate on time is thus escalated within the customer's company. It doesn't really hurt, but it causes annoyance. And this mechanism works.
Legal remedies for failure to comply with the duty to cooperate
I could write a lot here about §§ 642, 643 BGB and about the fact that the IT company could rightly demand compensation for the fixed costs incurred as a result of the failure to cooperate in good time. Of course I could talk about termination options. However, experience shows that IT companies do not make use of these legal remedies. You don't want to scare off the customer you want to deal with for a long time to come. And that's why I always advise agreeing contractual penalties. The system seems to be more digestible for IT companies.
