SOFTWARE DEVELOPER AGREEMENTS By Baby Veena John Trade Mark Department Altacit Global Email: firstname.lastname@example.org Website: www.altacit.com
Definition The Software Development Agreement is a contract between a company and a software developer which outlines the terms and conditions in which a software developer develops a piece of software for a company’s individual use.
Contents of Software Developer Agreements
Parties in this Agreement: This agreement is made between the client and the developer/s
The Project: Name and other relevant Details
Description: what is important
Payment / Consideration: Payment will be made by the client to developer, on completion of project
Intellectual Property Rights Clause
This clause indicates who owns the materials created by developer: software product, documentation, etc. Client is the sole owner of code produced by developer. Developer has no rights, either copyright or trademark, to the software developed for client.
Industry Practice: It is the norm in the technology industry that web site developer retains title to the program and licenses the software to the customer. It also protects the materials provided to developer by client (images, music, texts, etc.) to use on his web site
Legal Necessities Warranties
The software furnished under this agreement is warranted to conform to specifications and functionality as mentioned in the design document(s) provided to developer.
Warranties of software performance are typical in many contracts. In this warranty, the developer promises that the software will work the way the developer said it would and will fix it free of charge if it doesn't. Such warranties typically last from 90 days to one year after the software is delivered.
Indemnity Indemnity ensures that neither client nor developer uses such materials. The infringements of some third party rights most often include copyright infringement, trademark infringement, trade secret infringement or liability for unlawful disclosure Web site development leads to the publication of material in the Internet. The material published should not constitute an infringement on third party’s intellectual property rights.
Confidentiality Certain information (data, know how, designs, marketing studies, costs, etc.) can be treated as trade secrets. The software and web site development agreement should state the duration and conditions for which such information has to remain confidential.
Termination of Contract
The agreement can be terminated by either party if the other party fails to carry out its obligations.
The termination clause addresses
the conditions for termination
the procedure of returning materials and
the survival of certain rights and obligations.
Transfer of Copyright Ownership
The most important function of a software development agreement is to establish who will own the intellectual property rights to the software. (This is often one of the most hotly contested issues between the developer and client and can easily become a deal-breaker)
Developers own the copyright to software unless the developer is the client's employee or the software is part of a larger work made for hire under a written agreement.
In order to own the copyright, the client must have an agreement transferring ownership from the developer to the client.
There are many ownership options available, ranging from sole ownership by the client to ownership by the developer with the client merely having a license to use the software.
There are many alternatives between these two extremes depending on the quantum of money paid to the developer.
Most websites and software programs combine a variety of materials, including
Graphics Text Photos Videos and sounds.
Such projects can present difficult and expensive legal problems. These fall into two main categories:
Copyright permission problems: You may need to obtain permission to use materials protected by copyright, whether it be text, photos, video and film clips, software, or music. Obtaining permissions for a Web or software project can involve tracking down many different copyright owners and negotiating licenses to use their material.
Publicity/privacy problems: Use of photos, film/video footage or audio recordings can constitute a breach of privacy or publicity rights of third parties. You'll need to consider whether you must obtain privacy releases from persons whose images or voices are used.
PUBLIC DOMAIN A work that is not protected by copyright is said to be in the "public domain"; in effect, it belongs to everybody. Anyone is free to use it without permission, but no one can ever own the work. By using public domain materials, a developer can avoid going through the time, trouble, and expense involved in getting permission to use copyrighted materials.
Certain works of authorship and other items are never protected by copyright and are therefore always in the public domain. These include:
Ideas and facts: Copyright only protects an author's expressions. Ideas and facts themselves are not protected.
Words, names, titles, slogans, and other short phrases
Works Whose Copyright Has Expired
Works Dedicated to the Public Domain
The "Fair Use" Exception to Copyrighted Works Even if the material you want to use is protected by copyright, you will not need permission if your intended use constitutes a "fair use." Under the fair use rule, an author is permitted to make limited use of preexisting protected works without asking permission. All copyright owners are deemed to give automatic consent to the fair use of their work by others. Bottomline - The fair use rule constitutes an important exception to a copyright owner's exclusive rights
Obtaining Permission to Use Copyrighted Materials Obtaining permission to use copyrighted materials in a website or software project can be a difficult and time-consuming caused by the following factors:
The fear that they will lose control over unauthorized copying
That others intend to launch their own website or software ventures and don't want to help potential competitors.
Owners may grant permission subject to consideration of exorbitant costs (this is because there are generally no standard rates for such permissions).