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
Facsimile: Melbourne Office - +61 3 9629 3217 Sydney Office - +61 2 9233 3044
Email: firstname.lastname@example.org Internet: http://www.computerlaw.com.au
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 your lawyer, as it is usually difficult to amend an agreement once work has commenced.
Although there will be some issues which are common to all software licensing agreements, it is difficult to have a universal agreement which will adequately cover all software licensing situations. The terms of a software licensing agreement that will probably vary from project to project will probably include:
As you can see there is quite a bit to consider. The more detail your answers to the above points include, the tighter the documents will become. Trying to use a blanket agreement for all projects may leave you exposed to many risks that you could easily avoid.
In Australia 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. It would be difficult to enforce details for each of the above mentioned points if you had to rely solely on oral evidence.
Software developers need to consider the following additional points that may not be included in an agreement, which is supplied by the customer. These include:
An increase in custom software development and the globalisation of the software market has increased the importance of having a well drafted software licence and software development agreement, in recent years. The developer needs to reach a balance between minimising its exposure and loosing a potential customer due to insisting on the inclusion of clauses, which may be too oppressive for the customer. As with all commercial agreements, if given the opportunity to draft the engagement agreement, the wording chosen should give you the best protection possible. It is likely that the customer will request amendments that will reduce the protection afforded to the developer. It is then a matter of weighing the commercial risk against the importance of securing the engagement to determine how insistent the developer will be to keep to the original prepared agreement.
WHITE SW COMPUTER LAW
www.computerlaw.com.au © White SW Computer Law 1999 This article 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.