Software Development Agreement
Are you looking for an IT lawyer with 10 years software development experience to help negotiate or draft a Software Development Agreement for you?
One trained in Prince2 and PMBOK and who stood in the scrum passing around the footy (or red stapler)? Whether you take a traditional waterfall approach or are an Agile devotee we can produce the right Software Development Agreement for your business or next IT project.
What terms should be included
Obviously, there are differences between Agile Software Development Agreements and more traditional ones.
Some developers offer their clients the option of either models. Others operate on some sort of quasi Agile / Waterfall model which works for them. Regardless of your approach there are a range of terms which are unique to Software Development Agreements and some which are standard for any type of Service Agreement.
Terms unique to Software Development Agreements
Typically a Software Development Agreement will need to deal with:
Indemnities – Particularly relating to the use of third party software. The consumer of software development services will want to ensure their new software is not infringing third party copyright.
Moral rights – Often overlooked but moral rights include the right to have the code attributed to the author. How many times do software developers delete a section of code with the original authors name in it? Terms in these agreements need to reflect common practices.
Acceptance testing – Obligations need to apply to both parties. The developer must typically provide the deliverables but if the client does not commit to performing acceptance testing in a timely manner the developer can be burning costs on idle developers.
Change control – Software Development Agreements will need to express the difference between a variation and a defect and set out the process for effecting change.
Delivery of source code and documentation – Unless the client is willing to engage with the developer on an ongoing basis, and the developer is willing to transition to production support, someone else will need to be able to make updates.
Sign off and payment – Often signoff and payment go hand in hand but these may be significantly different under and Agile versus a Waterfall Software Development Agreement.
Terms common to a Service Agreement
While some terms are common to both a Software Development Agreement and a Services Agreement these terms can take on a different flavour.
Assignment of Intellectual Property – Who owns the code and when is it assigned? What about code libraries, these can be developed over many years and care must be taken to ensure correct assignments.
Limit on liability – Limiting liability and the exclusion or inclusion of consequential loss are decisions which must be made when considering any service agreement. Given the variable value of software development any such clause needs to consider both circumstances where the Australian Consumer Law applies and where it does not.
Rights to use subcontractors – Clients often hire a particular firm to develop their software and are concerned about it being syphoned off to cheap offshore resources. But as we know IT contractors are the norm in most dev teams. There is a balance, we can find it.
Confidential information - Obligations relating to confidential information, which take over from your Confidentiality Agreement, are standard. These may be more relevant during development projects where a software developer gains intimate knowledge of the client’s internal processes.
Restraint or trade and exclusivity – A number of topics and considerations fall under the headings of restraint of trade and exclusivity. Many a project has seen client staff follow the allure of the consulting lifestyle and many a tired consultant seeks to bed down with a client. Though this is only part of the picture and restraints and exclusivity are often contentious.
Warranties – Hardware changes and so do dependencies and API’s. As such, software will need to be maintained and updated. But clients will expect their payroll system to survive its first retroactive calculation. The client must have time to ensure the system operates as expected. Furthermore, Software goes live with bugs. It’s a fact. How are you going to deal with that?
Where can we find an IT Lawyer to draft a Software Development Agreement?
Where else would an IT Lawyer base themselves other than in the trenches with other tech entrepreneurs and start-ups.
You can find us at River City Labs in Fortitude Valley Brisbane. If you have never been to River City Labs it proclaims to house over 150 tech businesses. Furthermore, it is one of the most active venues for venture capital in Brisbane and holds regular pitch nights. You'll find us there drafting Software Development Agreements for tech startups and local developers.
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