Where Should Software Development Disputes Be Resolved?

By | Software Agreements, Software Lawyer | No Comments

Whether you’re a software developer or the client who’s paying for an app to be created, it’s important to put into place a dispute resolution plan that protects you if things go wrong.

Now if the issue is intellectual property (IP) infringment, you’ll want the right to head to court and get injunctive relief to minimize the damage caused by the infringement.

However most disputes between developer and client are about performance issues instead of IP infringement. For these issues, ideally, you’ll want to have an alternative dispute resolution (ADR) plan in place before work begins.

If you’re based in the United States, an ADR plan might include:

1. Informal resolution between the parties;

2. Mediation (online or in person); and

3. Binding arbitration using the American Arbitration Association or JAMS.

Of course, choice of law and the location ADR takes place are important factors too, particularly if the developer and client are based in different cities, states, or countries.

Naturally, dispute resolution and other important legal issues can be properly addressed by an experienced software lawyer who prepares your software development agreement.

Do You Make This Software Licensing Mistake?

By | Software Agreements, Software Lawyer | No Comments

Whether it’s part of a software development agreement or a standalone software license, it’s a common mistake to not address exclusivity. Or, even worse, cover the issue incorrectly.

Here’s a couple of examples.

Example 1 – Missing Language: A company contracts for a mobile app agreement to be developed. The software developer retains ownership of some code but licenses it to the client. However, the license doesn’t even mention exclusivity. The developer believes the license is non-exclusive, i.e. the code can be licensed to the third parties (even the client’s competitors) on similar projects. On the other hand, the client believes the license is exclusive.

Example 2 – Wrong Language: To save money, an entrepreneur “borrows” parts of software licenses he finds online and patches them together for his new software application as an end user license agreement (EULA). Unfortunately, the license mistakenly identifies the EULA as exclusive to each software customer who purchases it, i.e. each customer receives an exclusive license to use the software…but there’s more than one customer.

Needless to say, these common exclusivity errors in software agreements are a recipe for disaster (e.g., expensive lawsuits).

Don’t guess about the rights being licensed. When in doubt, seek the advice of an experienced software lawyer. If needed, he can prepare an app development agreement or standalone software license that meets your business requirements.

 

How To Define And Modify A Software Development Agreement’s Scope Of Work

By | Software Agreements, Software Lawyer | No Comments

When you’re contracting for development of one software application or multiple apps, it’s important to structure your software agreement so that the scope of work and any changes to it are easily understood by the parties (and legally enforceable).

Whether you’re the client or the software developer, one of the first things to decide is how many projects will be covered by the single agreement.

Now if it’s development of just one app, the simplest layout would be to attach the scope of work for that application as an exhibit to the contract that’s being signed.

But what if you want the contract to cover multiple software development projects over time between the same parties?

In that case, it makes more sense to have a Master Services Agreement (“MSA”). Attached to the MSA would be an initial project Work Order that contains the scope of work only for the first app to be created.

During the term of the MSA, each new app project would have a separate Work Order created and signed by the parties. The Work Order would reference back to the MSA that governs it.

Whether the agreement is structured for a single app or multiple apps, one of the best ways to modify the requirements during performance is by written Change Orders signed by the parties. Because Change Orders prevent misunderstandings that would otherwise occur if the changes were authorized orally or informally by email conversations.

If you need help with your software development agreement, perhaps it’s time to set up a phone consultation with Software Lawyer Mike Young.

Does Your Software License Take Into Account Open Source Code?

By | Software Agreements, Software Lawyer | No Comments

A common software license mistake is to claim that the licensor owns all of the rights to the code.

In fact, it’s often the case that a software application has both custom code and “borrowed” code that’s subject to open source licensing.

What this means is that an application may include code owned by two, three, or more parties…and each has separate licensing terms and conditions that apply.

If you’re a software developer, be sure that neither your dev contract nor the software license you give your client promises more than you have the legal right to give.

Similarly, if you’re a client who has paid for software to be developed, be sure to get the developer to identify which open source licenses apply to parts of the application. Understand your rights and responsibilities under the license issued by the developer for custom code and those granted per open source licensing.

An experienced software lawyer can craft language for your software development agreements and software licenses that are designed to protect you. Plus he can answer your questions about your legal rights under these documents.

How Should You Pay For Software Development?

By | Software Agreements, Software Lawyer | No Comments

If you’re planning to pay for a software developer to create an app for you, how should you pay for it?

This is an important question because structuring the development contract the wrong way can cost you a fortune without even getting the app you paid for.

Ideally, the software development agreement should provide that you pay a fixed price for at least the minimum viable product (MVP) version. And that fixed price is split out into multiple payments made as certain milestones are achieved during the dev process.

It’s dangerous to pay for app development on a time and materials basis if there are no caps, deadlines, milestones, or other restrictions on the developer. In essence, you’re trusting someone to not overcharge you and to actually deliver as promised. And by the time you discover the developer is incompetent, inexperienced, or corrupt, you’ve paid out a lot with little or nothing in return.

Sometimes it makes sense to take a hybrid approach. For example, a fixed price for the MVP version of the app to be developed. And then certain improvements done on a time and materials basis.

Regardless of which method you pick, never pay all or most of a software developer’s fee up front. Chances are you’ll never get the app and there won’t be a refund either.

An experienced software lawyer can prepare an app development contract that’s designed to protect you from these and other dangers (loss of code ownership, your developer competing against you, etc.).

What if the developer insists on using his contract? Have a software attorney review it before you sign so that issues can be resolved now rather than cleaning up an expensive mess later.