Software Development Agreements And Problems That Arise After A Project Is Done

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software developmentAfter you completed a software development project, very often you’ll discover that there are issues that remain unresolved, whether you’re the developer or the client who retained the developer for this project. That’s because software development agreements often have holes in them.

Here are some common app issues that need to be addressed, ideally within the software development agreement, so that you can avoid misunderstandings and even lawsuits after the project is completed.

Intellectual Property Ownership

First, who owns the application’s intellectual property?

Does the developer own the code? Does the client own the code?

Did the developer borrow code, such as open-source code or public domain code, and incorporate it into the project?

Was other third-party code licensed and used within the project?

Your software development contract should clearly identify what’s being used and who owns what.

Protect yourself as app developer or client so that there are no mistakes and misunderstandings.

Software Support

What about software support after development?

Is the developer obligated to provide any support whatsoever? If not, who will provide the support when it’s needed?

App Maintenance

Who maintains the software after the project is over? Will the developer do it or a third party?

Is it included in the development contract? And if it is, will the application developer be paid an additional fee (e.g. on an ongoing basis) in order to maintain the software application?

Software Development Agreements and Upgrades

At some point, the software that’s been developed will need to be upgraded to future versions, perhaps with even additional features and bugs fixed.

Is that included within the software development agreement? Is it even addressed?

Is there any duty whatsoever for the developer to come back, perhaps for a certain amount of money, in order to make upgrades?

If so, for what period of time is the developer obligated? 90 days? Six months? One year?

If you don’t know the answers to these questions and they’ve not been answered within your software development agreement, it’s time to sit down with the other party after speaking with an experienced software lawyer and iron out these issues with a supplemental agreement.

Can You Answer These Questions About Your Software License Agreement?

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software license agreementWhether you’re the licensor or the licensee, too often you have no real idea what exactly are your rights and responsibilities under a software license agreement.

For example, do you know what rights were sold as part of the license? Could the licensee turn around and sell one or more copies of the software application to someone else? Is the license sub-licensable?

Is your software license revocable or irrevocable? And if it’s revocable, what events trigger revocation?

Does the licensor have ownership of any code? For example, did the developer use open source code or public domain code?

If so, how were those handled as part of the license agreement?

Because if you don’t know the answers to these questions, chances are you have no idea as to what you actually own, including what rights you have under the agreement.

Related Article: How to License a Software Application

How do you enforce the software license as licensor or licensee?

Whether it’s piracy, or some other issue, what mechanisms are in place within the software license that provides enforceability in order to protect your legal rights?

An experienced software lawyer can help make sure that you have the right software license agreement in place. Don’t assume that you have rights without actually knowing what’s in your license. Because you may be unpleasantly surprised to discover what you thought you had doesn’t exist.

Software Code: Who Owns It?

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software code development and ownershipWhether you’re a developer or a business owner who pays for applications to be developed, it’s important to know who owns the software code.

Many software development agreements don’t properly address this issue. And often both developer and client each believes they own the code.

Sometimes it makes sense for the developer to retain copyright ownership while licensing the code to the client. This is particularly important where the developer plans to recycle the code on multiple projects for different customers.

On the other hand, a business owner may want proprietary rights to prevent development of competing applications. If this is the case, the owner may pay a premium to own the code. And perhaps license some rights to the developer for future non-competing use.

Of course, there’s also the issue of open source code (e.g. GitHub) and code that’s in the public domain (e.g. Unlicense). Because it’s common practice for software developers to “borrow” these to incorporate into a software application rather than reinvent the wheel.

If some of the code is open source, that needs to be disclosed so that the client knows the licensing limitations imposed on its use.

Similarly, if there’s public domain code in the new application, the client needs to know. For example, the application’s end-user license agreement (EULA) will need to address the use of open source and public domain code in addition to the proprietary code created.

Whether you pay for app development or are a developer, an experienced software lawyer can prepare the right legal documents that identify and protect your rights.

Software Development Agreement: Who Owns The Code?

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software development agreement and code ownershipWhether you’re a developer or you’re paying to have a software application developed, one of the most important issues you should resolve in the software development agreement is who owns the code.

Unfortunately, many app development contracts ignore this issue. Instead the parties focus on the scope of work, payment milestones, and the like without giving a thought to intellectual property ownership.

Now if you’re a software developer, you’ll want to be able to recycle code on future projects. On the other hand, if you’re paying for a mobile app or other software to be developed, chances are you believe you’re purchasing ownership of the code. And that’s at least partially false in most cases because of what’s in the development contract and what’s omitted.

For example, developers frequently use open source and public domain code on projects instead of custom coding everything. And they’ll reuse code from prior projects for other clients. After all, there’s no sense in reinventing the wheel. Of course, the developer took this into account when quoting a price for the project in the first place.

So, how do you avoid a legal mess because of vagueness in your software agreements?

Ideally, the software development agreement will clearly identify…

  • For custom coding, which party owns the code, which party will receive a license to use the code, and the scope of the license.
  • Which parts of the code is open source and the type of license the client receives to use that open source code.
  • Public domain code that’s included in the app.

Now if a client wants exclusive ownership of custom code, the client should expect to pay a premium for that exclusivity. In some cases that makes sense, particularly if there’s a likelihood the custom coding could be used by the developer to create a competing application.

Of course, whatever’s decided with respect to ownership and licensing, it should clearly be documented. For example, a copyright assignment, software license(s), and the like. So that both parties are on the same page as to their legal rights. This reduces the chance the developer, client, and third parties will end up in software litigation over app ownership and licensing rights.

What if you’re in the middle of an app development project but the contract is missing essential ownership and licensing terms? An experienced software lawyer can help you modify the agreement so that the parties know what they’re really getting out of the deal.

App Development Agreement – Scope Of Work

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Just reviewed an app development agreement with a scope of work that stated, “to be agreed to by the parties.”

Other than a general description in the opening paragraph of the contract, there was nothing that gave a clue what exactly was being developed.

This is an agreement to agree…and when it comes time to perform, there will plenty of disagreement between the developer and the client.

Take time on the front end with your software lawyer to get a software development contract prepared correctly to protect you. Otherwise, it’s a recipe for a failed project and lawsuits.