Contract for work vs. contract for services: What you need to know in the IT, software and Esports sector

Introduction: Why the right type of contract is crucial

There are many gray areas in the world of contracts that can often lead to confusion. Especially in the context of IT projects, software development and other technology-driven services, it is crucial to choose the right type of contract. Two of the most commonly used types of contracts are the contract for work and the contract for services. Both have their own advantages and disadvantages, but what really distinguishes them from each other?

The contract for work and services, regulated in §§ 631 ff. BGB, refers to the production or modification of an object or the achievement of a certain success. This contrasts with the service contract, which is governed by Sections 611 et seq. BGB (German Civil Code). Here, the service provider undertakes to perform the promised services, but without guaranteeing any particular success.

Choosing the right type of contract can have far-reaching consequences, both financially and legally. Therefore, it is essential to know exactly the differences and areas of application. In this article, we will dive deep into the subject and use examples from various industries to illustrate the differences.

Software development: contract for work or contract for services?

Contract for work in software development

If a company has specific software developed that must fulfill certain functions, it is usually a contract for work and services. The developer is obliged to deliver a working end product. Here, milestones and acceptance processes are particularly important to measure the success of the plant.

Service contract in software development

However, if a software developer is only hired for a certain period of time to work on various projects without a specific end product being required, this is more likely to be a service contract. In this case, the developer’s working time is the main focus, not the final product.

Freelancers and programming: flexibility vs. goal orientation

Contract for work for freelancers

A freelancer who is hired to create a website usually works on the basis of a contract for work. Success is clearly defined here: a functioning website. Often, specific deadlines and quality standards are also defined here.

Service contract for programmer

A programmer who is hired for general coding tasks with no expectation of a specific end product is working under a service contract. Here, the focus is on job performance, and there are usually no specific success criteria.

SaaS (Software as a Service): Custom vs. standard

Contract for work in the SaaS area

If a SaaS provider develops a customized solution for a company, this can be considered a contract for work and services. The supplier is obliged to deliver a software solution that meets the agreed requirements.

Service contract in the SaaS area

However, the ongoing maintenance and updating of the software would more likely fall under a service contract. Here, the service provider is paid for their time and expertise, whether or not new features are added.

Esport and Games: Tournaments and Organization

Esport contract for work

The development of a special Esport tournament format could be considered a contract for work. The organizer is obliged to organize a tournament that meets the established criteria.

Esport service contract

The general organization and execution of esport events falls more under a service contract. Here, the focus is on service, and there is no guarantee that the event will be successful.

Conclusion: Choosing the right contract is crucial

These are just a few examples that illustrate the difference between a contract for work and a contract for services. Choosing the right type of contract is critical to the success of a project and can also have legal implications. It is therefore advisable to obtain detailed information and, if necessary, legal advice before concluding a contract.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.