Häufig gestellte Fragen
Should I engage an external lawyer for the ERP contract?
For investments above 250,000 euros, engaging a lawyer specialising in IT contract law is generally advisable, as legal fees in the range of about 15,000 to 50,000 euros usually pay for themselves within the first few years relative to the contract volume. The reason is leverage: licence and subscription fees typically account for only around 25 to 35 percent of total project costs, while 65 to 75 percent go to implementation, customising, training and data migration. Precisely the clauses on penalties, audit rights, price increases and exit can only be drafted in a legally robust way by someone who masters IT contract law. For smaller projects, a focused review of the central term-sheet clauses is often sufficient instead of having the entire contract worked through.
How much negotiating room do ERP vendors have on price?
In the mid-market, reductions of 15 to 30 percent off the list price are realistic, and often more for larger contracts or when several vendors are negotiated in parallel right up to signing. Economically more important than the initial discount, however, are the clauses on annual price increases, audit rights, service levels and exit, because these take effect over the typical contract term of seven to ten years. A pure list-price reduction evaporates if the vendor is subsequently allowed to raise the subscription annually without a cap. It therefore makes sense to address price commitment (ideally linked to an index such as the consumer price index) and volume tiers early in the negotiation package, not only at the end.
What should never appear in an ERP contract?
To be avoided are clauses that make a later switch more expensive or effectively prevent it, such as proprietary data formats without an export obligation, undocumented interfaces or a contractual ban on switching to certain competitors. Equally problematic are unlimited price-increase mechanisms, opaque audit logic with retroactive back-payments, and automatic renewals over several years without a clear, timely termination option. Sham penalties for SLA breaches that only provide symbolic credits are also economically worthless and should be replaced by tangible, tiered sanctions. Cloud and subscription models do lower the initial investment but permanently shift the costs into ongoing operating expenses, which is why the long-term clauses are especially decisive here.
What type of contract legally underlies an ERP project?
Under German law, ERP contracts are typically mixed contracts that combine elements of different contract types. The Higher Regional Court (OLG) of Frankfurt am Main confirmed in its ruling of 15 May 2024 (case no. 5 U 133/22) that a contract for implementing an ERP system based on standard software is regularly a mixed contract with service-contract and work-contract elements: installation and adaptation of the software to the existing IT environment are work-contract in nature (outcome-based), while consulting and training are to be classified as service-contract elements (activity-based). For ongoing SaaS use, absent any deviating provision, the emphasis lies in tenancy law under sections 535 et seq. of the German Civil Code (BGB), which can lead to far-reaching, in part no-fault vendor liability for defects (sections 536, 536a BGB). This classification is practically relevant because it determines whether the vendor owes merely an effort or a specific outcome (such as a successful data migration), which is why outcome-based services should be expressly formulated as work-contract obligations.
How do I regulate data return and deletion at the end of the contract in a legally secure way?
The modalities for data export, return and deletion should be defined when the contract is concluded, not only upon termination. If the ERP system processes personal data, a data processing agreement under Article 28 GDPR is mandatory; it must stipulate that after the end of the contract the vendor returns or deletes the data at the customer's choice, unless a statutory retention obligation stands in the way. The export should take place in a structured, commonly used and machine-readable format (based on data portability under Article 20 GDPR), free of charge and within a clearly defined deadline. It is also important that a mere contractual promise is not enough: the customer must verify and document the actual return or deletion, which is why a binding deletion certificate from the vendor should be contractually agreed.
What is a licence audit clause and what risk does it carry?
A licence audit clause grants the vendor the right to review the actual use of the software and regulates the consequences of over-usage. The risk is considerable, because surveys such as those by the Business Software Alliance suggest that, depending on the region, a quarter to almost 40 percent of deployed software is unlicensed or incorrectly licensed, often through so-called indirect use, where third-party systems access the ERP. A prominent example is the SAP v Diageo lawsuit before the English High Court (2017), in which SAP demanded around 54.5 million pounds in licence fees for indirect use via a Salesforce integration; the court ruled in SAP's favour on the merits, while a specific amount of damages was no longer quantified in the second stage of the proceedings. The contract should therefore clearly limit the frequency, notice period and sanctions of an audit, exclude retroactive back-payments and unambiguously define what usage requires a licence (named users, concurrent users, technical users, indirect access).