The outsourcing of activities related to the implementation of innovative projects is a widespread practice in companies.
The need behind such a choice lies in the evolution of market demands to companies that are constantly facing competitiveness in terms of price, quality and service offered, technological innovations as well as the need to focus their attention on the core business from which arises the greatest competitive advantage.
Therefore, it is preferable to entrust highly specialized third parties with the implementation of services, which would reduce costs and improve the quality of services complementary to the core business.
With an outsourcing contract, one party – customer or outsourcee – entrusts and/or transfers to a third party – supplier or outsourcer – certain services.
The Italian legal system does not provide a formally defined outsourcing contractual scheme; as it aims to achieve interests worthy of protection, it allows the parties to agree on the definition of the scheme as a whole.
However, in some cases, the legal system restricts the autonomy of the parties by setting the regulation of the outsourcing contract within formally defined contractual schemes such as tender, works contract, transport or shipping contract.
The outsourcing contract must include a precise definition of the activities to be carried out by the supplier, as well as its fee/consideration.
In addition, the duration of the contract must be specified in order to define in advance the time frame during which the partnership will be carried out or the activity will be completed.
If one of the parties is a foreign party, the contract must contain a clause indicating the law applicable to the contract; in case of its absence, reference will be made to legal provisions of private international law.
Finally, the clause on the resolution of disputes that may arise shall indicate the choice of the parties who may resort to arbitration or ordinary jurisdiction.
It is important to mention certain clauses.
– a confidentiality clause must specify which information are sensitive and how they shall behandled, with reference to information relating to customers and information on the outsourcee which must not be disclosed to third parties;
– a clause on intellectual property in the event of the accidental development of new intellectual works or the infringement of intellectual property rights;
– a clause related to the beginning of the contract and the rules related to the premature termination of the contract.
Which service to outsource?
The most common activities that can be usefully outsourced include:
– Data processing
– Customer service
– IT services and maintenance
– Software development
– Advertising and communication
– Legal service
– Logistic service
How to negotiate an outsourcing agreement?
The conclusion of an outsourcing agreement requires negotiation between the parties.
The starting point is the identification of the customer’s internal business needs; subsequently, the selection of the supplier will proceed on the basis of the economic convenience of the offer as well as its technical-organizational capabilities, i.e. the “know-how” and expertise that it is able to bring into the company.
Finally, after the formalization of the contract, the monitoring of the services under contract is certainly a key factor in the overall assessment of the investment.
Written by Avv. Charlotte Grippi