Take urgent steps to rectify the IT systems failure
If you are responsible for repairing the IT systems, consider whether you will require external assistance and, if so, who would be best placed to assist (particularly given that any request for assistance will likely be on short notice).
Where a third party is responsible for maintaining your IT systems, review the outsourcing agreement to establish if the outsource provider is responsible for repairing the systems in the current circumstances. If the failure has been caused by a force majeure event, for example, this may not be the case.
If the outsource provider is not responsible for repairing your IT systems and your team is unable to fix the problem, consider whether you should engage the existing outsource provider or a new IT contractor to carry out the required work.
If the outsource provider is responsible, consider notifying them of the failure immediately, ensuring that the form, manner and timing of the notice comply with the outsourcing contract. The third party will then normally be required to fix the problem within a time period set out in the outsourcing contract.
The outsourcing contract may contain "step-in" provisions. These allow you to provide the services yourself, or for you to pay a third party supplier to provide the services, in certain circumstances, for example where the initial provider fails to provide part or all of the services under the agreement.
If your outsourcing contract contains "step-in" provisions, consider whether these provisions have been triggered and, if so, whether it would be beneficial to carry out the services yourself, if you are able to do so, or to arrange for the works to be carried out by a third party provider. You may be able to deduct your reasonable costs in doing this from any sums due to the outsource provider or recover the sums from the outsource provider as a debt.
In deciding whether to "step-in" consider the following:
- your commercial relationship with the initial outsource provider
- your ability to provide the services or to find an replacement outsource provider
- the timeframe and ease of migrating the required information and technology from the initial provider to you or a replacement
- the relative timeframes and costs of each potential provider providing the services
If the IT systems failure was the fault of the outsource provider, you may also be able to terminate your agreement. An exit management plan will then be put in place for the transfer of information and equipment from the initial outsource provider to you or a replacement outsource provider.
