The acceptance phase is essential in IT projects, as it allows the client and the service provider to ensure that the delivered system corresponds to expectations and specifications. This is particularly true for systems that are essential to the life of the company (ERP for example).
Unfortunately, this phase is often neglected and poorly documented, and some service providers include clauses in their terms and conditions that state that the production launch is equivalent to acceptance, with very short complaint periods.
In a case decided by the Court of Cassation on December 6, 2017, the provider relied on its GTCs to state that, since the client had not reported any problems within 15 days of going into production, it could not do so afterwards.
The Court of Cassation accepts that the GTCs organize the acceptance procedure, but not that this procedure institutes an absolute safe harbor for the provider.
In legal terms: « if contracts on evidence are valid when they relate to rights of which the parties have free disposal, they cannot establish an irrebuttable presumption in favour of one of the parties ». An irrebuttable presumption is a presumption that cannot be rebutted. Now, by stating that if the customer did not protest within the 15-day period, he could never do so again, the GTC established an irrebuttable presumption. Therefore the clause is not valid.
Our advice: before signing the contract, check how the acceptance procedure works. If the contract is silent, add a few lines on this subject. We can help you analyze your IT contracts.
