About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Need help? Call Evan at (630) 362-7237, send email to ebrown@internetcases.com, or follow him on Twitter @internetcases.
“Right to audit” provisions in technology services agreements are common. You’ve seen them. A typical section will read something like this:
Vendor will keep accurate and complete records and accounts pertaining to the performance of the Services. Upon no less than seven (7) days’ written notice, and no more than once per calendar year, Customer may audit, or nominate a reputable accounting firm to audit, Vendor’s records relating to its performance under this Agreement, including amounts claimed, during the term of the Agreement and for a period of three months thereafter.
These provisions often benefit the customer, to give it some transparency and assurance that the vendor is performing the services according to the agreement and that vendor is charging customer for the services appropriately.
But a right to audit provision can benefit the vendor (and go against the customer) as well. As a recent court decision shows (Carlson, Inc. v. IBM, 2013 WL 6007508 (D. Minn. November 13, 2013)), a customer’s comprehensive audit rights can preclude it from claiming that vendor owes it a fiduciary duty.
In the case, the customer sued its software vendor alleging, among other things, that the vendor breached its fiduciary duty. The customer argued that it had to essentially “hand over the keys” of its operations to the vendor. But the court ruled that vendor did not owe customer a fiduciary duty because the customer had several important rights to know about and control the vendor’s performance.
The master services agreement between the parties reserved for the customer the right to audit the vendor’s performance and challenge its pricing and delivery of services. Under the agreement, customer had:
- regular and recurring access to vendor personnel;
- access to complete records and supporting documentation underlying vendor’s services;
- the right to conduct operational audits to examine vendor’s performance of the services;
- the right to audit performance for comparison to standards in the service level agreement;
- the right to financial audits to verify the accuracy and completeness of invoiced charges.
The court found that “[t]hese audit and oversight provisions [were] meaningless if [customer] was as helpless as it [claimed].”
So while vendors may find right to audit clauses to be a nuisance, they should remember that the presence of such a clause could provide an important defense in litigation over the technology agreement.
Evan Brown is a Chicago attorney helping businesses negotiate and draft technology services and development contracts. He also handles many other issues involving the internet, copyright and trademarks, and new media. Call him at (630) 362-7237 or email ebrown@internetcases.com.