Duty of Care
Duty of Care
Tags: default, duty of care, onrechtmatige daad, unlawful act, verzuim, wanprestatie, zorgplicht.
It has been established in settled case-law that IT suppliers have a duty of care. The criterion is whether or not the supplier “met the level of care that may be required of a reasonable course of action and a competent automation expert”. This criterion follows from the standard RBC / Brinkers judgment. Although the case concerned advice, the case law has assumed that this duty of care also applies outside advisory activities (CGI / Staalbankiers).
Progress Monitoring
The duty of care implies that a supplier who has project management in his hands must address the customer if he does not proceed energetically enough. It is in the way of the IT supplier to monitor the progress of the project, and to take initiatives against the customer if necessary (Profuse / Kwetters).
Obligation to Warn
In addition, the IT supplier, who knows that a certain implementation entails great risks, must inform the customer about those risks. In general, the IT supplier has a duty to prevent him from acting by warning if the customer is going in the wrong direction (Breikant).
Precautionary Measures
An IT supplier must also take precautionary measures to prevent damage, for example by securing data before performing an action that can cause data to be lost, while that data is important to the customer.
Final Responsibility
In addition, if he or she is primarily responsible for the success of the project, the IT supplier can be expected to do everything in its power to bring the project to a successful conclusion. [the IT supplier] can be required to use skilled personnel and deploy additional employees as necessary. ” In fact, if the user does not build confidence in the new system to be developed, “poor project management (…) can in this light under certain circumstances (…) serve as a ground for dissolution.” Given the leadership role of the IT service provider in the development and implementation of the software, it is not up to the customer to identify specific project management obligations. It is then sufficient for the customer to state facts (Alert / TweeStedenZiekenhuis).
Obligation to Provide Information
In addition, an IT supplier must monitor the progress of the project he or she is carrying out, taking into account the interests of the customer (CGI / Staalbankiers). He or she must adequately inform the customer in an understandable and clear manner about the progress of (sub) projects. In doing so, he or she must also reasonably keep in mind the interest of the client, with regard to the achievement of promised milestones as well as with regard to the cost control of the tasks to be performed. If the IT supplier finds that further progress will only cost more money, without directly benefiting the customer, the IT supplier should inform the customer and will have to steer for suspension or termination.
Cost Control
If the customer wants to be able to run certain software on the supplier’s IT system, the supplier has a duty of care to inform the customer in advance of any additional costs associated with that software. Especially if the customer has asked for this several times and does not want to be faced with unexpected cost items (SET / Triple Ace).
Research into Requirements and Wishes
The IT supplier also has a duty to warn a customer in a timely manner about the consequences of his attitude to the planning and the end result and the need to identify requirements. If late delivery is already (partly) due to the attitude of the customer, and if the IT supplier should have already accepted the changes from the customer in the light of an agreed term for delivery, the IT supplier can be expected to explicitly point out to the customer the consequences of this for the issue of delivery of the end result. This is all the more the case if the customer is a non-expert customer and cannot properly understand the consequences of change proposals. If an IT supplier is of the opinion that an extensive examination of requirements and wishes is necessary for the adequate performance of the work, then it does not suffice with just advice, but the IT supplier must also explicitly point out to the customer this precondition and furthermore also informing and warning about the consequences (SGOA 2014/22).
Usability
Furthermore, it appears that the duty of care implies that, before a supplier sells specialist IT, he must determine whether the IT is reasonably usable for the customer (Magnet Card).
Control Obligation
Before the IT supplier changes software, he must check the effect of that change (Card / CCV).
Investigative Obligation
Before the IT supplier issues advice, he must have researched the customer’s corporate structure (RBC / Brinkers).
Expectation Management
If a customer has high expectations, the IT supplier must protect the customer from this. The IT supplier must also prevent the customer from unstaged commissioning if one should foresee that this will lead to problems (Dolmans / Burroughs).
Additional Work
And, finally, an IT supplier must prevent unnecessary custom orders and restrain them if necessary (Breikant).
Not everything is a Violation of Duty of Care
This does not mean, however, that there is always a violation of a duty of care.
The mere fact that problems have arisen is not automatically a violation of the duty of care. For example, the parties may have opted together for inadequate preliminary research, or to set up a webshop process-by-process (Agion / Almedo).
In addition, the IT supplier did not breach a duty of care if standard software supplied does not appear to work in a target environment while he or she is not responsible for implementation and integration.
If a customer invokes a breach of the warning obligation, the customer must further substantiate why damage has been caused by this breach (Netrom / Flexservice).
An IT supplier, who has not received any special information about the use of IT, also need not warn the customer that IT may no longer be suitable in the future (TipTop / HGM).
In addition, an IT supplier does not have a general duty of care to back up all complete files of the customer (Steel construction).
And the mere fact that the software supplied may have been problems does not justify the conclusion that the IT supplier should not have advised the software (NMA Office Equipment / De Wal).