{"id":2729,"date":"2026-10-06T10:37:06","date_gmt":"2026-10-06T10:37:06","guid":{"rendered":"https:\/\/sawaryn.com\/us\/?p=2729"},"modified":"2026-10-06T10:37:25","modified_gmt":"2026-10-06T10:37:25","slug":"poland-poc-agreements-liability","status":"publish","type":"post","link":"https:\/\/sawaryn.com\/us\/poland-poc-agreements-liability\/","title":{"rendered":"POC Agreements in Poland: How to Keep Pilot-Project Liability Proportionate"},"content":{"rendered":"

POC Agreements in Poland: How to Keep Pilot-Project Liability Proportionate<\/h1>\n

You sign a PLN 50,000 proof-of-concept (POC) agreement with a penalty of PLN 5,000 for each day of delay. The clause was copied from a PLN 2 million implementation contract. After 10 days, the penalty equals your entire fee; after 30 days, it reaches three times your fee. We see this type of clause in roughly one in three templates sent to us by corporate customers.<\/p>\n

The problem is usually not bad faith. The project\u2019s scope and price shrink, but the liability provisions remain designed for a production system. If your IT or SaaS company is running a pilot for a large organization in Poland, the points below show which provisions to negotiate, what to propose instead, and how to explain the changes to the customer.<\/p>\n

Key Polish Contract Concepts<\/h2>\n\n\n\n\n\n\n\n\n\n
Concept<\/th>\nWhat it means in a Polish POC agreement<\/th>\n<\/tr>\n<\/thead>\n
Contractual penalty<\/strong><\/td>\nAn agreed amount payable for breach of a non-monetary obligation, such as delay or breach of confidentiality, whether or not the customer has suffered a loss.<\/td>\n<\/tr>\n
Liability cap<\/strong><\/td>\nAn upper limit on financial liability, stated as an amount or as a percentage of the fee.<\/td>\n<\/tr>\n
Judicial reduction of a penalty<\/strong><\/td>\nUnder Article 484 \u00a7 2 of the Polish Civil Code, a court may reduce a grossly excessive contractual penalty.<\/td>\n<\/tr>\n
Indemnification<\/strong><\/td>\nAn obligation to cover costs and losses arising from third-party claims, commonly claims involving intellectual property (IP) rights.<\/td>\n<\/tr>\n
Claims-handling procedure<\/strong><\/td>\nContractual rules for notice of a claim, control of the defense, cooperation, and settlement decisions.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

A POC is a test project intended to verify a technical or business hypothesis. Its agreement should reflect that purpose\u2014not simply reproduce the terms of a full implementation.<\/p>\n

Why Implementation-Contract Terms Can Distort a POC<\/h2>\n

Large customers often develop templates for projects worth hundreds of thousands or millions of Polish zlotys. Those projects may involve months of implementation, data migration, and integration with production systems. If the same template is shortened for a pilot worth tens of thousands of zlotys without recalibrating its risk provisions, the contractor\u2019s exposure can become disproportionate to its fee.<\/p>\n

Three recurring problems are:<\/p>\n

    \n
  1. Fixed daily penalties carried over from a larger contract.<\/strong> A relatively short delay can produce a penalty exceeding the POC fee.<\/li>\n
  2. Unlimited IP liability without a claims process.<\/strong> The customer could settle a third-party claim without involving the contractor, then seek reimbursement.<\/li>\n
  3. No statement that the work is exploratory.<\/strong> Without one, the customer may argue that an unsuccessful test amounts to improper performance.<\/li>\n<\/ol>\n

    The approved source points to limits used even in larger Polish public-sector IT contracts. A KSAP template for an ERP implementation caps liability at 100% of the net implementation fee<\/strong>. In National Appeals Chamber matter KIO 3063\/24, the aggregate cap on contractual penalties was set at 40% of the maximum fee<\/strong>. The argument for negotiation is straightforward: if large projects use fee-linked limits, a smaller POC should not automatically carry uncapped exposure.<\/p>\n

    Contact us<\/a> if you would like us to review a POC template and identify changes to propose to the customer.<\/p>\n

    Contractual Penalties: Replace Open-Ended Exposure With a Calculation<\/h2>\n

    Run the numbers before signing<\/h3>\n

    Consider a PLN 50,000 POC with a PLN 5,000 penalty for every day of delay:<\/p>\n\n\n\n\n\n\n\n
    Days of delay<\/th>\nTotal penalty<\/th>\nPercentage of the POC fee<\/th>\n<\/tr>\n<\/thead>\n
    10<\/td>\nPLN 50,000<\/td>\n100%<\/td>\n<\/tr>\n
    20<\/td>\nPLN 100,000<\/td>\n200%<\/td>\n<\/tr>\n
    30<\/td>\nPLN 150,000<\/td>\n300%<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

    A two- or three-week delay is not unusual in exploratory work. The source\u2019s position is that a penalty of 200\u2013300% of the fee, where the project has caused no production loss, is grossly excessive.<\/p>\n

    Under Article 484 \u00a7 2 of the Polish Civil Code<\/strong>, a court can reduce a grossly excessive contractual penalty. Relevant considerations include the relationship between the penalty and actual loss, the value of the principal obligation, and the duration and nature of the breach. In judgment SA I AGa 130\/23 (2024)<\/strong>, the court reduced the penalty to one fifth<\/strong> of the amount claimed after considering its relationship to the value of the entire obligation.<\/p>\n

    That is a negotiating point for the customer as well as the contractor: an aggressive clause may lead to litigation and an uncertain result rather than predictable protection. Court reduction is not, however, a substitute for negotiating a workable provision before signing.<\/p>\n

    Propose a different mechanism, not simply deletion<\/h3>\n\n\n\n\n\n\n\n
    Term<\/th>\nCustomer\u2019s template<\/th>\nProposed alternative<\/th>\n<\/tr>\n<\/thead>\n
    Daily penalty<\/td>\nPLN 5,000 fixed amount<\/td>\n0.5% of the net fee per day<\/td>\n<\/tr>\n
    Aggregate penalty cap<\/td>\nNone<\/td>\n20% of the net fee<\/td>\n<\/tr>\n
    Trigger<\/td>\nEach day of delay<\/td>\nEach day of delay\u2014unchanged<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

    At a net fee of PLN 50,000, the proposed daily penalty is PLN 250 and the aggregate cap is PLN 10,000. The penalty still encourages timely performance, but its maximum is known.<\/p>\n

    A possible trade-off is to increase a percentage-based daily rate\u2014for example, from 0.2% to 0.5%\u2014in exchange for an aggregate cap rising from 10% to 20%. The customer receives a stronger daily incentive; the contractor can quantify its maximum penalty exposure.<\/p>\n

    The recommendations of the President of Poland\u2019s Public Procurement Office support tailoring contractual penalties to actual needs and risks and calculating their possible amounts under realistic scenarios before signature. Do that calculation for the delays the project might realistically encounter.<\/p>\n

    IP Claims: Agree on a Procedure Before a Dispute Arises<\/h2>\n

    The risk in an indemnity without claims handling<\/h3>\n

    Corporate and public-sector templates can shift the full financial burden of third-party copyright infringement claims<\/a> to the contractor. The public-sector templates examined in the source\u2014from URPL, NIW, Gov.pl, NAWA, and NASK\u2014show a recurring pattern: responsibility for IP infringement, reimbursement of damages and legal costs, continued application after termination, and no process requiring the customer to involve the contractor before settlement.<\/p>\n

    For a POC, imagine a pilot containing an open-source component. A licensor makes a claim against the customer. The customer settles without notifying the contractor and then seeks the full cost from it. The contractor has had no opportunity to assess the claim, manage the defense, or propose a replacement component.<\/p>\n

    A five-part claims-handling procedure<\/h3>\n

    Present this as a way to make the agreed responsibility work in practice, not as a request to remove IP protection.<\/p>\n\n\n\n\n\n\n\n\n\n
    Provision<\/th>\nWhat to agree<\/th>\nWhy it helps<\/th>\n<\/tr>\n<\/thead>\n
    1. Written notice<\/strong><\/td>\nThe customer notifies the contractor of a claim within an agreed period.<\/td>\nThe contractor needs notice to respond.<\/td>\n<\/tr>\n
    2. Right to take over the defense<\/strong><\/td>\nThe contractor may manage the dispute.<\/td>\nIt has direct knowledge of the technology.<\/td>\n<\/tr>\n
    3. Cooperation<\/strong><\/td>\nThe customer provides reasonable assistance in the proceedings.<\/td>\nA defense may depend on information or actions within the customer\u2019s control.<\/td>\n<\/tr>\n
    4. No unilateral settlement<\/strong><\/td>\nThe customer does not settle without the contractor\u2019s consent.<\/td>\nBoth parties can assess the cost and terms before they are agreed.<\/td>\n<\/tr>\n
    5. Right to remedy<\/strong><\/td>\nThe contractor may modify the component, obtain a license, or replace it.<\/td>\nA technical fix may resolve the issue without continuing the dispute.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

    The customer retains a route to protection while the contractor gains a fair opportunity to respond to a claim it may have to fund.<\/p>\n

    Check open-source licenses during the pilot<\/h3>\n

    The source emphasizes that a project\u2019s test status does not, by itself, protect against the consequences of an open-source license violation<\/strong>. Its identified risks and actions are:<\/p>\n\n\n\n\n\n\n\n
    License<\/th>\nRisk identified for a POC<\/th>\nContractor action<\/th>\n<\/tr>\n<\/thead>\n
    GPL<\/strong><\/td>\nCombining GPL and proprietary code may create source-disclosure obligations and conflict with a promised transfer of exclusive rights to the customer.<\/td>\nList GPL components and analyze whether they are combined with closed-source code.<\/td>\n<\/tr>\n
    MIT<\/strong><\/td>\nMissing attribution may raise concerns involving authors\u2019 rights.<\/td>\nInclude the license and author information with each distribution.<\/td>\n<\/tr>\n
    Apache 2.0<\/strong><\/td>\nOmission of a required NOTICE file may affect rights to use the software; patent issues may also arise.<\/td>\nInclude the NOTICE file and information about the author, license, and modifications.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

    Gov.pl model clauses require a contractor to give the customer a list of open-source software used and its license terms<\/strong>, no later than delivery of the product for acceptance. POC agreements often lack such a provision. Adding one gives both parties a clearer record of the components delivered.<\/p>\n

    Set a General Cap\u2014and Define What the POC Must Deliver<\/h2>\n

    Link the liability cap to the fee<\/h3>\n

    In IT contracts, a liability cap<\/a> expressed as a percentage or multiple of the fee makes exposure easier to price. The source proposes 200% of the fee<\/strong> as a level that is rarely problematic for the customer while giving the contractor a quantifiable limit.<\/p>\n

    The cap should distinguish between categories:<\/p>\n

      \n
    1. Liabilities within the cap:<\/strong> delay, operational errors, and failure to meet service-level agreement (SLA) parameters.<\/li>\n
    2. Liabilities outside the cap:<\/strong> IP infringement arising from legal defects in the product, serious confidentiality breaches, and intentionally caused loss. Article 473 \u00a7 2 of the Polish Civil Code prohibits excluding liability for intentional misconduct.<\/strong><\/li>\n
    3. Lost profits:<\/strong> consider an express exclusion of liability for lost profits as a negotiating point.<\/li>\n<\/ol>\n

      This allocation should be addressed expressly; a single broad cap may not reflect the risks the parties intend to treat differently.<\/p>\n

      Make an unsuccessful test a valid outcome<\/h3>\n

      A POC tests a hypothesis. Finding that a technology does not<\/em> meet the requirements can be a proper result of that work. If the contract is silent, the customer may instead allege improper performance.<\/p>\n

      State that:<\/p>\n