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Debugging your Software Contracts
Transcript of Debugging your Software Contracts
What is a Contract:
principles, structure and red flags
Keeping it Confidential
: an introduction to NDAs
things to look out for in software development, licensing and maintenance contracts
Exploiting the Cloud
IP ownership, licensing and reselling
"Battle of the Forms"
What are they and why are they used?
Enforcement and remedies
1. Who owns what?
2. Development - The Software Development Agreement
5. Licensing - scope
7. Licensing - Escrow
8. Maintenance - Scope and support
9. Maintenance - Service Levels & Service Credits
10. Maintenance - Liability
Navigating the cloud: what is it?
The commercial approach to cloud services
Service Levels & Service Credits
Data protection and information security
Third party agreements and back-to-back terms
Requirements to create a contract:
Intention to create legal relations
Certainty of terms
Governing law and jurisdiction
What is it?
Why should you worry about it?
How to avoid the problem
Create contractual obligations that control the use of information
Increase the disclosing party's chances of enforcing the confidentiality obligation
Who should the agreement apply to?
The definition of confidential information is key
Restrictions on use
Return of information
Damages for breach of contract / account of profits
Difficulty in proving breach
How is software protected
Impact on contract
Types of licensing
4. Development - Contractual protections
At a basic level, cloud computing is the delivery of IT products and support as services over the internet.
Cloud-computing service providers (CSPs) host applications and provide computing power from data centres, providing low-cost IT service provision to customers.
Broad network access
Remote hosting and management of customers’ software applications by IT providers who also provide initial and ongoing support services.
PaaS suppliers adapt and scale existing infrastructures to provide platforms for third-party use in the cloud, allowing the third-parties to host their software applications on these platforms in order to distribute them to customers.
Delivery of computing resources over the internet such as servers, network equipment, memory, CPUs, disk space and data-centre facilities.
Predictable fixed, and often low, service charges
Anytime, anywhere access
Low hardware investment costs
A greener solution as carbon usage can be outsourced
Support package may not be tailored to customers' specific needs
Contracting on fixed standard terms with limited warranties and indemnities
Lack of integration with existing systems
Reliance on online connectivity
Risk of lock-in
Hidden extras / increased costs
Uptake and attitudes
Best uptake among consumers and start-ups
Increased interest in the public sector
Slower uptake in large corporate
Pre-contract due diligence and post-contract governance
Ideally, agreements should be tailored to fit the context:
Any standard term agreement is likely to be strongly supplier-centric
Research and development
A written agreement which should cover the following key issues:
The Work Programme
Access to Results
Protection of results
Background IP, Foreground IP (new), Exploitation, Registration
Inventing party usually owner of IPR
Avoid 'joint ownership'
"the Developer shall use its reasonable endeavours to meet the Service Levels"
"the Developer shall meet the Service Levels"
SaaS / PaaS / IaaS
Sales or Marketing Agency Agreement
Value Added Reseller
Software development contract / Maintenance & Support Agreement / Licence / Systems Integrations Agreement
Third Party Developer
Developer Licence / right to sub-licence
Navigating the cloud: what is it?
If a cloud computing service involves processing of personal data and the customer is established or the data is processed in an EU member state then the service will need to comply with the Data Protection Directive.
Distinctions between data controllers and data processors
Restrictions on data transfers
3. Development - Implementation
6. Licensing - warranties and indemnities
Ability to obtain access to source code
Third Party Development / Maintenance
What is a fault / defect
Categorise faults / defects
Hours of availability
Levels of upgrade: faults fixes / upgrades
Example of a multi-vendor enterprise ICT environment
Example of outsourced services integration
Finding a meeting point
Content licensing and issues
Disaster Recovery / Business Continuity