IT Chronical 2025: the Preselection

Every year, the IT Chronical is published in the journal Advocatenblad following a careful demarcation of the subject matter and a rigorous selection from case law. This makes it inevitable that certain rulings will be ignored. However, these rulings are often equally important to the development of the field and would definitely be worth mentioning.

This year, as a favour to the interested reader, we have therefore detailed several supplementary rulings (in random order). These deal with the adjustment of infrastructure by the supplier; the tacit renewal of a current agreement; reasonable remuneration as envisaged in Section 7:411 DCC; a strengthened obligation to give reasons around deliverables; and the standard of sufficient reliability of an electronic signature.

In proceedings before the Court of Amsterdam (ECLI:NL:RBAMS:2025:2197), the parties argued about the obligations of NDC-IT in the provision of managed services to I&DT.[1] According to I&DT, NDC-IT had to implement changes to the infrastructure, whereas NDC-IT maintained that it was only obliged to keep the infrastructure running “as is”. The Court held that it was not clear what the agreement implied and what the parties could expect from each other. It was clear that the parties had discussed changes prior to the agreement. However, they had not reached agreement on those changes. In order to make changes to the infrastructure possible, I&DT would moreover have to implement changes in its software. I&DT could therefore reasonably not expect that NDC-IT had end responsibility for the infrastructure and would ensure that it was up to date and always functioning. NDC-IT’s main obligation was to manage the infrastructure and to keep it running. Structural improvements and adjustments were beyond the scope of the agreement.[2]

In a dispute with its IT provider, a miscommunication cost the Utrecht Archives dearly. The Court of Midden-Nederland (ECLI:NL:RBMNE:2025:1671) held that workplace management agreement between the Archives and its supplier had not been terminated in time and was tacitly renewed for three years.[3] Due to an unfortunate e-mail correspondence, a miscommunication occurred between the Archives, its original supplier and a sister company thereof, which entered into a new agreement with the Archives. In correspondence with the sister company, the Archives inquired whether the current contract with the original supplier would automatically be halted by the transfer. The sister company confirmed this. However, the Archives could not trust that the original supplier agreed to this. Since the supplier did not make any representations, Section 3:35 DCC does not apply. There is no appearance of the granting of a power of attorney either (Section 3:61 DCC).[4] Besides, the promise of the sister company cannot be attributed to the supplier pursuant to Section 3:37 (4) DCC. This section concerns the inaccurate communication of a representation, which does not exist here.[5] Nor is a reliance on the extension unacceptable according to standards of reasonableness and fairness. The Court attached great weight to the fact that the parties had agreed on the way in which the agreement could be terminated, that such agreements are not unusual, and that the miscommunication cannot be attributed solely to the supplier.[6] 

In a dispute between Cimico and GLT, the Court of Amsterdam (ECLI:NL:RBAMS:2025:1620) decided on the indebtedness of remuneration as envisaged in Section 7:411 DCC.[7] The parties entered into an agreement with Cimico developing software for GLT. The parties agreed that if their collaboration would be successful, Cimico would receive an equity stake in GLT. Should the parties end their collaboration, Cimico would receive a fixed amount per month in 2020. Though the collaboration seemed successful, the parties failed to reach agreement on the size of the equity stake. The Court held that GLT still had to pay Cimico for the work. Although the parties intended for Cimico to obtain an equity stake, concrete agreements about this were absent. It could therefore not be established that Cimico was only entitled to payment in stock and had waived its right to be paid in a different form. Cimico was entitled to a reasonable remuneration. The Court chose to follow the monthly amount that was agreed on for 2020, also for later years. Regarding those years, there is no reason to follow a remuneration customary in the IT sector, since Cimico had agreed deliberately to a lower rate in exchange for the chance of future value growth via shares.[8] 

In a dispute between TCB and Dot1 about the development of an app by Dot1, the question was addressed which remuneration was payable. In the Court of First Instance of Aruba (ECLI:NL:OGEAA:2025:347), the question to be adjudicated was whether TCB had legally terminated the agreement on account of failure by Dot1.[9] The Court held that a failure existed because Dot1 had not presented the results of its work to TCB. However, the significance of this failure was insufficient to justify termination. TCB did terminate the agreement. Dot1 is not entitled to the full remuneration (Section 7:411 (2) DCC), because it failed to show the app to TCB. Instead, TCB has to pay a proportion of the remuneration to be determined reasonably (Section 7:411 (1) DCC).[10]

In proceedings before the Court of Midden-Nederland (ECLINL:RBMNE2025:2811), the Court severely blamed a supplier for failing to clarify sufficiently which parts of software it had developed and delivered.[11] The parties entered into a collaboration in which the supplier undertook to work on rebranding and digitization (the development of a software package with website and associated applications). After four years, the customer concluded that only the website had been delivered, and that it did not even function as agreed. The supplier had failed in several respects, in the Court's opinion, including by failing to resolve problems on the website in time and by not providing the source code.[12] The Court did not go along with the supplier’s argument that it had developed and delivered all software. In this context the supplier has a strengthened obligation to substantiate, with which it had not complied. An IT expert who was engaged by the customer reported significant discrepancies between the software delivered and the original agreements. The supplier did not sufficiently refute this report. Although the supplier did submit three binders with exhibits, these lacked any further explanation. The supplier therefore substantiated insufficiently what the Court should gather from these exhibits, other than that it had done a lot of work. The Court pointed out that exhibits may support arguments, but cannot replace them. Arguments must be clear and verifiable to the court and the opponent, and the party submitting the exhibits must make it clear which parts thereof are relevant to which position. The parties have an ‘obligation to show the way’. Besides, a court cannot search the exhibits itself, looking for what may be relevant and why. The fact that the software was developed and delivered was therefore not sufficiently substantiated, and the Court assumes that the software delivered did not comply with the agreements.[13] Since the supplier is in default, the termination by the customer stands up. Because the supplier did not bring a counterclaim for the return of its deliverables performed, or for compensation, and did not rely on set-off either, the Court ordered the supplier to pay back all fees paid by the customer. For the sake of completeness, the Court also pointed out that because the source code was not provided, the value is nil for the supplier. If the supplier had wanted the deliverables performed by it to be considered, it should have brought forward different arguments than that its expenses contrasted sharply with the customer’s payments.[14]

In this judgment, the Court of Appeal of Arnhem-Leeuwarden (ECLI:NL:GHARL:2025:6520) rejected claims from BMW, considering that the use of an internet banking code identified via iDIN is insufficiently reliable in the specific case of signing a private lease agreement.[15] Although the electronic signature that uses iDIN can be designated as an advanced electronic signature, BMW gave insufficient insight into the course of the contacts with the appellant, how they obtained a copy of the driving licence or other documents, and who picked up the car. This is awkward considering the improbability that the appellant took part in the signing, because she was on holiday in Spain at the time. Due to inconsistencies and missing evidence, the Court of Appeal found that BMW had failed to substantiate that the advanced electronic signature that was used (iDIN) is sufficiently reliable, given all circumstances of this case. As a result, the digital signature does not have the same legal consequences as a classic signature, and there is no private instrument that constitutes compelling evidence of the lease agreement (Sections 3:15a DCC and 157 CCP).[16]

[1] Court of Amsterdam, 2 April 2025, ECLI:NL:RBAMS:2025:2197 (I&DT/NDC-IT).

[2] Grounds for the decision 5.6 – 5.12 (I&DT/NDC-IT).

[3] Court of Midden-Nederland, 16 April 2025, ECLI:NL:RBMNE:2025:1671 ([claimant]/Het Utrechts Archief).

[4] Grounds for the decision 4.2 – 4.4 (Supplier/Het Utrechts Archief).

[5] Grounds for the decision 4.5 – 4.6 (Supplier/Het Utrechts Archief).

[6] Grounds for the decision 4.11 – 4.12 (Supplier/Het Utrechts Archief).

[7] Court of Amsterdam, 12 March 2025, ECLI:NL:RBAMS:2025:1620 (Cimico/GLT).

[8] Grounds for the decision 4.3 – 4.6 (Cimico/GLT).

[9] Court of First Instance of Aruba, 19 November 2025, ECLI:NL:OGEAA:2025:347 (TCB / Dot1).

[10] Grounds 2.6 and 2.7 (TCB / Dot1).

[11] Court of Midden-Nederland, 11 June 2025, ECLINLRBMNE:2025:2811 (Customer/Supplier). 

[12] Ground for the decision 3.9 – 3.10 (Customer/Supplier).

[13] Ground for the decision 3.11 – 3.15 (Customer/Supplier).

[14] Ground for the decision 3.19 – 3.22 (Customer/Supplier).

[15] Arnhem-Leeuwarden Court of Appeal, 21 October 2025, ECLI:NL:GHARL:2025:6520 (appellant/BMW Financial Services).

[16] Grounds for the decision 3.9 and 3.13 – 3.16 (appellant/BMW Financial Services).