Guarantee of compliance with the rights of third parties in an English-language software development contract (Part 2)
So, in the last post, which was devoted to the guarantees in the software development contract, I settled on the performance guarantee ("Warranty of functionality"). I propose to continue this fascinating insight into the world of warranty obligations and consider the peculiarities of using the guarantee of the observance of third-party rights “Infringement Warranty” .
In today's world, the protection of intellectual property rights is very relevant. So the Customer, after reading news about multi-million claims of IP holders' rights holders against violators, wondered: “Is there any risk in the development of risks associated with the violation of third party rights?” And “who is responsible for this violation?”.
In the software development contract, the order of these legal relations is described by means of the “Infringement Warranty”. The essence of this guarantee is that during the development and further transfer to the customer of the exclusive rights to use the software, the developer will not intentionally violate the copyright, patent and any other rights of third parties.
')
Successful wording:
“Developer warrants that you’ll not knowingly infringe on any third party services under this Agreement. For its third party license, it’s not. This will be the case for the developer .
It is determined that it is determined that it can be a scammer. , expense or cost, including reasonable attorney fees, arising from the claim.
This indemnification obligation shall be only if:
Developer prior to delivery of software
B. Customer has make all payments required by this Agreement
C. Customer to
D. The claim does not result from Customer’s modification of the Software.
You can use a non-infringing product. ”
* The term " NON-INFRINGEMENT " in the patent dictionary means "patent purity
The main purpose of this guarantee is rather the distribution of risks associated with the violation of intellectual property rights in the development process, rather than assuring the customer of the actual state of affairs. It is difficult to imagine that the development process will not affect anyone's IP rights - there are so many patents in the world that deal with various types of technologies. Therefore, one cannot be sure that intellectual property rights will not be violated. We can guarantee the absence of deliberate violations of the rights of third parties. To help us level out these risks, we can use an expensive patent search service for a third-party organization or the maintenance of the staff who will be engaged in this search, or the creation of an additional burden on the project team.
It is worth noting that a violation can occur at the behest of unscrupulous development specialists who deliberately copied a part of the code, or as a result of a poor-quality patent search that did not notice a potential violation.
By giving such a guarantee, the developer assumes the risks of the consequences that the product may affect third-party IP rights.
Findings:
In today's world, the protection of intellectual property rights is very relevant. So the Customer, after reading news about multi-million claims of IP holders' rights holders against violators, wondered: “Is there any risk in the development of risks associated with the violation of third party rights?” And “who is responsible for this violation?”.
In the software development contract, the order of these legal relations is described by means of the “Infringement Warranty”. The essence of this guarantee is that during the development and further transfer to the customer of the exclusive rights to use the software, the developer will not intentionally violate the copyright, patent and any other rights of third parties.
')
Successful wording:
“Developer warrants that you’ll not knowingly infringe on any third party services under this Agreement. For its third party license, it’s not. This will be the case for the developer .
It is determined that it is determined that it can be a scammer. , expense or cost, including reasonable attorney fees, arising from the claim.
This indemnification obligation shall be only if:
Developer prior to delivery of software
B. Customer has make all payments required by this Agreement
C. Customer to
D. The claim does not result from Customer’s modification of the Software.
You can use a non-infringing product. ”
* The term " NON-INFRINGEMENT " in the patent dictionary means "patent purity
The main purpose of this guarantee is rather the distribution of risks associated with the violation of intellectual property rights in the development process, rather than assuring the customer of the actual state of affairs. It is difficult to imagine that the development process will not affect anyone's IP rights - there are so many patents in the world that deal with various types of technologies. Therefore, one cannot be sure that intellectual property rights will not be violated. We can guarantee the absence of deliberate violations of the rights of third parties. To help us level out these risks, we can use an expensive patent search service for a third-party organization or the maintenance of the staff who will be engaged in this search, or the creation of an additional burden on the project team.
It is worth noting that a violation can occur at the behest of unscrupulous development specialists who deliberately copied a part of the code, or as a result of a poor-quality patent search that did not notice a potential violation.
By giving such a guarantee, the developer assumes the risks of the consequences that the product may affect third-party IP rights.
Findings:
- It is necessary to guarantee the absence of a deliberate violation of IP rights, and not the “patent purity” of the product.
- It is necessary to envisage conditions under which there will be no developer responsibility (for example, if the violation arose as a result of the software modification by the Customer).
- In order to avoid problems related to the IP rights of third parties, it is necessary to hire bona fide programmers and conduct a high-quality patent search.
- Waiver of this warranty is likely to result in the loss of the customer, since This guarantee is generally accepted in modern contractual practice.
Source: https://habr.com/ru/post/134476/
All Articles