A business does not want to be surprised that their computer system has been shut down through the unilateral action of a vendor. Important remedy questions to consider: • What events give rise to a refund appropriate as a remedy for failed performance? • Failed implementation dates? Failed support obligations? What about a refund as the sole and exclusive remedy? • Are credits appropriate in the case of failure to meet service level requirements for support? What formula is used to determine credits?
• Are credits the sole and exclusive remedy for failed support?
• Is termination the sole and exclusive remedy?
• Can the customer obtain a replacement program or services and obtain reimbursement from vendor for the costs incurred? • Liquidated damages or specific performance as an alternative remedy?
Other delivery and completion considerations:
• Is time of the essence in delivery and completion of the system?
• Is it appropriate to include a deduction or increase in fees in the event a performance milestone is reached or missed? • Is it appropriate for the vendor to include early termination fees in the event customer cancels or terminates service?
• What transition services to a new provider are offered by vendor and at what cost?
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