White SW Computer Law
Intellectual Property, Information Technology & Telecommunications Lawyers
Melbourne Office - PO Box 452, COLLINS STREET WEST Victoria 8007 Australia
Sydney Office - GPO Box 2506, SYDNEY New South Wales 2001 Australia
Telephone: Melbourne Office - +61 3 9629 3709 Sydney Office - +61 2 9233 2600
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Email: wcl@computerlaw.com.au Internet: http://www.computerlaw.com.au

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 +====== SOFTWARE LICENSING AGREEMENTS ======
 +When a customer requires software on a non-exclusive basis, the supply agreement will normally be in the form of a software licence.
 +The terms of the licence should be carefully considered and preferably checked by a lawyer.  ​
 +
 +===== WHAT ARE SOME ISSUES TO CONSIDER WHEN PREPARING A LICENSING AGREEMENT? =====
 +As with all agreements, there should be adequate definitions of important terms. ​ These should include points such as:
 +  * What is the licensed Program?
 +  *  What is the scope and duration of the licence, for example, two years in Australia
 +  *  Does the supplier have the right and authority to grant the licence?
 +  *  Is there to be any transfer of title or ownership to the customer apart from a one-off licence?
 +  *  What are the program'​s operational requirements?​
 +  *  What documentation will the supplier provide to the customer? ​ Can the customer make copies of this documentation? ​ Does the supplier have to provide updates for the documentation?​
 +  *  Is copying of the program by the customer allowed? ​ Are backup copies permitted?
 +  *  Is the customer allowed to make modifications or alterations to the program? ​ Is reverse engineering allowed?
 +  *  What are the customers'​ obligations to oversee the use and control of the program and associated documentation?​
 +  *  What warranties and training will the supplier provide?
 +  *  Are there to be maintenance services provided by the supplier? ​
 +  *  What are the fees and charges stipulated by the supplier and what are the terms of payment?
 +  *  What are the customers'​ duties with respect to confidential information?​
 +  *  What is the liability of the supplier for faults and consequential loss and damages?
 +  *  Is the customer able to sub-licence the program?
 +  *  Can the supplier sub-contract any part of the agreement, for example, maintenance?​
 +  *  When may the licence be terminated?
 +  *  Limitation of Liability
 +
 +===== DOES A SOFTWARE LICENCE HAVE TO BE IN WRITING? =====
 +There is no legal requirement for a software licence to be in writing, but if it is not, there can easily be a dispute as to what restrictions apply.
 +
 +===== SOME ADDITIONAL CONSIDERATIONS FOR SOFTWARE DEVELOPERS =====
 +  *  Is the copyright to be assigned?
 +  *  Do you wish to reuse your development libraries?
 +  *  Maintenance fees and hours of operation.
 +  *  New release fees.
 +  *  Limitation of liability.
 +  *  What is a delivery?
 +  *  When has the customer accepted the product?
 +  *  Confidentiality issues.
 +  *  Arbitration and mediation clauses. ​ Are they an appropriate mechanism to resolve problems?
 +  *  Disaster planning
 +  *  Does your insurance cover software failure and professional negligence?
 +
 +===== DO YOU NEED AN ESCROW AGREEMENT? =====
 +An [[http://​www.escrowagent.com.au|Escrow agreement]] regulates the storage of and access to source code.
 +
 +It is a means by which the customer can guarantee access to the source code even if circumstances change which would normally make access difficult, for example if the supplier ceases trading.
 +
 +Some issues to consider include:
 +  *  A clear definition of the source code
 +  *  The period of the agreement
 +  *  When and with whom the source code shall be deposited
 +  *  Access to source code
 +  *  Verification of software held in escrow
 +  *  Insurance
 +  *  Release of the source code to the customer and/or to the supplier
 +  *  Escrow fees and charges
 +  *  Confidentiality
 +  *  The rights of the Escrow agent to sub-contract its obligations under the agreement.
 +  *  The method required to settle disputes
 +  *  The governing law
 +  *  Termination of the agreement
 +
 +This article is a guide only and should not be used as a substitute for proper legal advice, readers should make their own enquires and seek appropriate legal advice.
  

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  This website is a guide only and should not be used as a substitute for proper legal advice.
  Readers should make their own enquiries and seek appropriate legal advice.
  For legal advice please email wcl@computerlaw.com.au