dirc workshop on software quality and the legal system 13 february 2004, gray's inn, london...
TRANSCRIPT
DIRC Workshop on Software Quality and the Legal System13 February 2004, Gray's Inn, London
LEGAL ASPECTS OF SOFTWARE PROCUREMENT
Jos DumortierUniversity of Leuven (Belgium)
Lawyer – Bar of Brussels
Overview
1. Standard contracts– terms of use– additional services
2. Negotiated contracts– standard software– software development
Standard contracts
● General sales terms: typical content– restrictions on sale– export rules– trademarks: reference to trademark policy– warranty– limitation of liability– duration and termination– dispute resolution
● Specific licence agreement: typical content– terms of use– restrictions– …
Typical extract:
3. LIMITED WARRANTY. S. warrants to you that for a periodof ninety (90) days from the date of purchase, as evidencedby a copy of the receipt, the media on which Software isfurnished (if any) will be free of defects in materials andworkmanship under normal use. Except for the foregoing,Software is provided "AS IS". Your exclusive remedy andS.'s entire liability under this limited warranty will beat S.'s option to replace Software media or refund the feepaid for Software.
Typical extract:
4. DISCLAIMER OF WARRANTY. UNLESS SPECIFIED IN THISAGREEMENT, ALL EXPRESS OR IMPLIED CONDITIONS,REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIEDWARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULARPURPOSE OR NON-INFRINGEMENT ARE DISCLAIMED, EXCEPT TO THEEXTENT THAT THESE DISCLAIMERS ARE HELD TO BE LEGALLYINVALID.
Typical extract:
5. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITEDBY LAW, IN NO EVENT WILL SUN OR ITS LICENSORS BE LIABLE FORANY LOST REVENUE, PROFIT OR DATA, OR FOR SPECIAL, INDIRECT,CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVERCAUSED REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OFOR RELATED TO THE USE OF OR INABILITY TO USE SOFTWARE, EVENIF S. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In no event will S.'s liability to you, whether incontract, tort (including negligence), or otherwise, exceedthe amount paid by you for Software under this Agreement.The foregoing limitations will apply even if the abovestated warranty fails of its essential purpose
(a) You may not use the Standard Edition Features unless youfirst obtain a license key to enable the Standard EditionFeatures. (b) You acknowledge that Software may contain a timebombmechanism. (c) If you have obtained an evaluation version of Software,your use of evaluation Software is limited to a 60 dayevaluation period unless you obtain a license key ifavailable, and enable a non-evaluation version of Software.The 60 day limitation may be enforced by a timebombmechanism.
Typical extract:
II. Negotiated contracts
● Standard software– licence– installation– training– maintenance– …
● Software development
Software development contracts
● General aspects– status/hierarchy of relevant documents– result obligation versus effort obligation
● Quality guarantees– reference to the “state-of-the-art”– quality of personnel involved in the project– requirement of “pro-active” attitude– quality of other aspects (documentation, ...)– multiple development partners: who is responsible?
Software development contracts
● Delivery– only announced deliveries– delivery procedure– transfer of property versus transfer of responsibility– evidence of delivery: signature needed
● Acceptance– installation: to be specified– testing: take the initiative– provisional acceptance: signature needed– definitive acceptance: after n months – “hidden” defects / warranty period
Software development contracts
● Confidentiality● Intellectual property
Software development contracts
● Various other clauses– Audit– Liability– Contract managers
● Financial clauses– Prices– Invoicing– Payment– Bank guarantee
Software development contracts● Final clauses
– Duration and termination– Fines and sanctions– Modifications– Communication– Outsourcing– Dispute resolution– Applicable law / jurisdiction
● Annexes– Call for tenders– Tender – Technical documents, Price list, etc.
