How to protect the interests of the parties in the contract to create software
Today we will look at the main issues that arise in practice when negotiating the terms of the contract for the creation of software. It is clear that in order to protect the interests of the customer or developer, various provisions can be made to the contract, on which its actual execution and the achieved result depend.
Before discussing the terms of a software development contract, it is necessary to determine its form. This will help you previous post: "How to choose a contract for software development . " The forms of contracts and explanations for them can be found here .
After determining the form of a software development contract, the parties, as a rule, are concerned with three questions:
1) How to place an order for software development in a simplified manner?
2) What software rights are transferred to the customer and retained by the developer?
3) How to document transfer of software rights to a customer?
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Below we consider these issues in more detail.
For setting tasks for software development, planning and monitoring their implementation in the development environment, various project management systems or e-mail are often used. These tools are clear and familiar to developers, but do not fully provide the necessary legal guarantees in the event of disputes arising under the contract.
This is due to the strict requirement of the law on the specification in the contract for the creation of software work performed, including the dates of their beginning and end. In the absence of such conditions, the contract is not considered to be concluded with all the ensuing consequences.
Therefore, in order to give legal force to electronic document flow, in the software development contract in question, at a minimum, it is necessary to include an agreement on the use of electronic signatures. However, it is necessary to take into account that in this case the parties will use a simple electronic signature that does not protect against the possibility of distortion of information in the electronic document after its signing. For more on this, see our material Legal Value of Electronic Documents .
The best way to ensure the interests of both parties is to sign a technical assignment as a separate appendix to the contract, which establishes the general requirements for the software being developed, the estimated deadlines for the work and their cost. This will allow the transaction to be recognized in the event of any possible further conflict. With this approach, the detailing of works, the introduction of refinements and additions within the framework of the approved technical specifications for software development are possible already within the framework of electronic document circulation.
In most cases, the customer is interested in obtaining the exclusive right to the software created under the contract in full. To do this, the contract must clearly provide for a condition on the alienation of rights and prohibiting the developer of its independent use. In addition, you must specify the possibility of using the software under any name without reference to the authors and making any changes to it at the discretion of the customer.
Often, when creating custom-made software, a developer uses his own developments (for example, a software core or a “engine”) that he wants to replicate in the future. In this case, we recommend including in the software creation contract the conditions for transferring to the customer only the rights to the software version created under the contract, while retaining the exclusive right to previous and subsequent developments for the developer.
To reduce the risk of the customer’s refusal to accept work after their adjustment or in the case of a long period of implementation in the interests of the developer, include in the contract conditions for the delivery of work at intermediate stages on the basis of acts. In such acts, the amount of work and their cost are recorded. Therefore, in the interests of the customer, on the contrary, acceptance of work on the act after their completion. An exception is the case when the customer finances the development for a long period of time and he needs acts to write off expenses.
It is in the interests of the developer to agree in the contract on a clear procedure for transferring the work results to the customer, including an indication of the transfer procedure (on a tangible medium or via the Internet), testing and acceptance dates, the consequences of finding flaws or no objections.
The rest of the details of the contract like "force majeure", "confidentiality" and so on. common places are not so important.
Before discussing the terms of a software development contract, it is necessary to determine its form. This will help you previous post: "How to choose a contract for software development . " The forms of contracts and explanations for them can be found here .
After determining the form of a software development contract, the parties, as a rule, are concerned with three questions:
1) How to place an order for software development in a simplified manner?
2) What software rights are transferred to the customer and retained by the developer?
3) How to document transfer of software rights to a customer?
')
Below we consider these issues in more detail.
Checkout for a software development contract
For setting tasks for software development, planning and monitoring their implementation in the development environment, various project management systems or e-mail are often used. These tools are clear and familiar to developers, but do not fully provide the necessary legal guarantees in the event of disputes arising under the contract.
This is due to the strict requirement of the law on the specification in the contract for the creation of software work performed, including the dates of their beginning and end. In the absence of such conditions, the contract is not considered to be concluded with all the ensuing consequences.
Therefore, in order to give legal force to electronic document flow, in the software development contract in question, at a minimum, it is necessary to include an agreement on the use of electronic signatures. However, it is necessary to take into account that in this case the parties will use a simple electronic signature that does not protect against the possibility of distortion of information in the electronic document after its signing. For more on this, see our material Legal Value of Electronic Documents .
The best way to ensure the interests of both parties is to sign a technical assignment as a separate appendix to the contract, which establishes the general requirements for the software being developed, the estimated deadlines for the work and their cost. This will allow the transaction to be recognized in the event of any possible further conflict. With this approach, the detailing of works, the introduction of refinements and additions within the framework of the approved technical specifications for software development are possible already within the framework of electronic document circulation.
Software rights under the contract for its creation
In most cases, the customer is interested in obtaining the exclusive right to the software created under the contract in full. To do this, the contract must clearly provide for a condition on the alienation of rights and prohibiting the developer of its independent use. In addition, you must specify the possibility of using the software under any name without reference to the authors and making any changes to it at the discretion of the customer.
Often, when creating custom-made software, a developer uses his own developments (for example, a software core or a “engine”) that he wants to replicate in the future. In this case, we recommend including in the software creation contract the conditions for transferring to the customer only the rights to the software version created under the contract, while retaining the exclusive right to previous and subsequent developments for the developer.
Registration of the transfer of rights under the contract for the creation of software
To reduce the risk of the customer’s refusal to accept work after their adjustment or in the case of a long period of implementation in the interests of the developer, include in the contract conditions for the delivery of work at intermediate stages on the basis of acts. In such acts, the amount of work and their cost are recorded. Therefore, in the interests of the customer, on the contrary, acceptance of work on the act after their completion. An exception is the case when the customer finances the development for a long period of time and he needs acts to write off expenses.
It is in the interests of the developer to agree in the contract on a clear procedure for transferring the work results to the customer, including an indication of the transfer procedure (on a tangible medium or via the Internet), testing and acceptance dates, the consequences of finding flaws or no objections.
The rest of the details of the contract like "force majeure", "confidentiality" and so on. common places are not so important.
Source: https://habr.com/ru/post/290830/
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