Software Contract Agreements

Overview

This Briefing gives practical insight into the law relating to software contracts. In particular, it details the key techniques for negotiating and drafting better contracts.

An analysis of the law and its implications is offered, whilst the practical and commercial aspects of software contract negotiation are covered in detail.

Software Contract Agreements covers:

• The need for software licensing and the pros and cons of standard contract terms and conditions.
• The different types of software contracts, from software licences through to website development contracts.
• The various laws and intellectual property rights that underpin and shape software contracts.
• The various European Union Directives and proposals, which impact or may impact upon software contracts.
• Why and when transactions are significant enough to warrant negotiation, and the common mistakes often made in negotiations.
• The use of Heads of Agreement and the different terms, conditions and clauses found in specific software contracts.
• The necessary software licence provisions from both the point of view of both suppliers and buyers.
• Negotiation tactics and techniques specific to software contract agreements.

Who should read this Briefing?

• In-house lawyers
• Contract managers/directors
• Procurement and sales managers/directors
• Buyers and sellers of software and IT services
• IT directors and managers
• Private practice lawyers and IT consultants
• And all those involved in using and purchasing or selling IT services

Content

1. UNDERSTANDING SOFTWARE LICENCE AGREEMENTS

• What types of software and databases are distributed under contract and what laws protect them?
• General comments

2. SOME GENERAL TYPES OF SOFTWARE LICENCE AGREEMENTS

• Developer-publisher licence agreements
• Publisher-distributor licence agreements
• User licence agreements

3. LAWS AND REGULATIONS

• Overview
• Patent law
• Copyright

4. EUROPEAN UNION LAW OVERVIEW

• Competition law
• EC Directive on the legal protection of computer programs

5. FOCUSING ON MAJOR TRANSACTIONS

• What is a major transaction, and why is the answer important to you?
• Some common mistakes in major transactions

6. PREPARING FOR NEGOTIATIONS

• Provider preparations
• Customer preparations

7. PREPARING THE CONTRACTS

• Pre-contractual documents and confidentiality
• Checklist of the contents of a typical software licence agreement
• Should efforts be best or reasonable?

8. NECESSARY LICENCE PROVISIONS

• Key licence provisions from the provider’s viewpoint
• Key licence provisions from the customer’s viewpoint

9. UNDERSTANDING NEGOTIATING PRINCIPLES

• Introduction
• What is negotiation?
• Why negotiate?

10. SOME NEGOTIATING TACTICS OF SUPPLIERS

• Overview
• Identify and control the decision makers
• Active listening

11. CUSTOMER NEGOTIATING TACTICS

• Overview
• The strong attack
• The ‘intelligent attack’

12. CREATIVE PROBLEM SOLVING

• Introduction – reduce the issue to economics
• Redefining the problem

13. THE USE OF NON-VERBALS IN NEGOTIATION

• Introduction
• Silence – negotiating with yourself
• Body language

14. HOW DO YOU DEFINE A ‘WIN-WIN’ DEAL?

• In the US
• Definitions of variables

APPENDICES

• Appendix A
• Shrink Wrap Licence 342
• Appendix B
• Licence and Service Agreement

The author

Robert Bond is a Partner and Notary Public, at Speechly Bircham LLP. He has specialised in Intellectual Property, Information Technology and Multimedia Law since 1979, representing a wide range of international and blue chip companies. Robert advises a wide range of clients on IP/IT including inventors, authors and programmers, telecommunications and multimedia businesses, publishers, breweries, banks and insurance companies as well as companies in the biotech sector. His skills are in negotiating and drafting the full spectrum of legal agreements involved in IP/IT combined with applying commercial realism to the same.

Apart from providing legal advice, Robert is actively involved in a number of specialist committees including the Legal Advisory Group to the Federation Against Software Theft, the Childrens Privacy Group and the Intellectual Property Committee of the IBA and the Privacy Committee of the World Law Group. In addition, he is chairman of the International Chamber of Commerce (UK) Committee on electronic business, IT and telecoms and is Chairman of the IT & E-Commerce Committee of the Licensing Executive Society.

He is a Liveryman of the City of London Solicitors Company and also of the Worshipful Company of Stationers and Newspaper Makers, and is a member of the Law Society of England and Wales, the Notaries Society, and the American Bar Association. He is the author of Software Licence Agreements, Negotiating Tactics and Techniques for Software and Hi-Tech Agreements, E-Licences and Software Contracts and Negotiating International Software Licenses and Data Transfer Agreements, and regularly speaks and writes on IP/IT matters.