Non est factum – not just a contract law term, yes IT related!

Non est what?

Without offending any of our legal clients with my interpretation!, “Non est factum” is a contract law term which if specific conditions are properly met, effectively allows a person to get out of an agreement.

For a proper explanation see

However, the cry of “non est factum” has also been used to attempt to cheat agreements and essentially deny responsibility to specifically perform and stick to an agreed contract.

So how does that relate to IT I hear you say?

Well, any reasonable IT Support company would provide a client with a service support contract, contained within are elements of their IT Support and, this is especially important when taking over from an existing IT Company, support cover of certain computer, network and server equipment.

When a new IT company takes over a clients’ IT network from a previous company, many IT companies will simply take over all previous equipment but without performing an audit.

Now this raises a couple of alarm bells…

Alarm Bell #1

If an IT Company has not performed an audit before or at the start of a new IT support agreement, they would most likely during a crisis (server down, as an example!) cry “non est factum” to you, in other words, “that’s not my equipment and we are not responsible for fixing it”. Absolute denial of responsibility because they didn’t install it, even through they agreed to take it over in the new contract. Nightmare scenario!

Alarm Bell #2

The second alarm bell is, because an audit was never carried out they could during the same crisis levy obscene charges to resolve the problem OR enforce the replacement of the equipment. The result of which would get themselves out of supporting the equipment and be a money-making exercise, of which costs can escalate into the tens of thousands of pounds.

How to reduce the alarms

Insist on an audit first, even if it is chargeable. If an IT Support company wants to work with you they would reduce their audit fee.

Then at least at the outset of the proposed contract you know what the IT company will be responsible for. If any of your existing equipment does not meet their requirements you should be sent a recommendations proposal to replace equipment or recommend what changes need to be made in order to meet these, before a disaster happens.

See no evil, hear no evil

Do Not go into a new IT Support contract blindly, make sure you absolutely understand what will be contractually supported, what equipment may need to be changed and also what happens during a disaster scenario. All elements that are highlighted during a good IT and network audit. Again, ideally at the pre-contract stage.

Ensuring you are aware of your disaster recovery objectives and recovery times for your business should be included in the audit and if not, insist on this review as part of it. It ensures that all parties are aware of what is included in the contract, what isn’t covered and what happens in a critical disaster so that the entire company can be supported without any inconvenient “non est factum” calls from your IT company, which notably will be at the worst time.

Have you just had a call from your IT company crying “non est factum” during a disaster? If so, get in touch with us – we can help.

If you know someone who is or has gone through this, please share this article with them.

MUST READ! Avoid the end of the world with our IT Support Contract Checklist as this gives key points to discuss with your potential new IT provider before a contract is signed.

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