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DIRC Workshop on Software Quality and the Legal System 13 February 2004, Gray's Inn, London

LEGAL ASPECTS OF SOFTWARE PROCUREMENT Jos Dumortier University of Leuven (Belgium) Lawyer – Bar of Brussels. DIRC Workshop on Software Quality and the Legal System 13 February 2004, Gray's Inn, London. Overview. Standard contracts terms of use additional services Negotiated contracts

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DIRC Workshop on Software Quality and the Legal System 13 February 2004, Gray's Inn, London

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  1. LEGAL ASPECTS OF SOFTWARE PROCUREMENT Jos DumortierUniversity of Leuven (Belgium) Lawyer – Bar of Brussels DIRC Workshop on Software Quality and the Legal System13 February 2004, Gray's Inn, London

  2. Overview • Standard contracts • terms of use • additional services • Negotiated contracts • standard software • software development

  3. 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 • …

  4. Typical extract: 3. LIMITED WARRANTY. S. warrants to you that for a period of ninety (90) days from the date of purchase, as evidenced by a copy of the receipt, the media on which Software is furnished (if any) will be free of defects in materials and workmanship under normal use. Except for the foregoing, Software is provided "AS IS". Your exclusive remedy and S.'s entire liability under this limited warranty will be at S.'s option to replace Software media or refund the fee paid for Software.

  5. Typical extract: 4. DISCLAIMER OF WARRANTY. UNLESS SPECIFIED IN THIS AGREEMENT, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE DISCLAIMED, EXCEPT TO THE EXTENT THAT THESE DISCLAIMERS ARE HELD TO BE LEGALLY INVALID.

  6. Typical extract: 5. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL SUN OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE SOFTWARE, EVEN IF S. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will S.'s liability to you, whether in contract, tort (including negligence), or otherwise, exceed the amount paid by you for Software under this Agreement. The foregoing limitations will apply even if the above stated warranty fails of its essential purpose

  7. Typical extract: (a) You may not use the Standard Edition Features unless you first obtain a license key to enable the Standard Edition Features. (b) You acknowledge that Software may contain a timebomb mechanism. (c) If you have obtained an evaluation version of Software, your use of evaluation Software is limited to a 60 day evaluation period unless you obtain a license key if available, and enable a non-evaluation version of Software. The 60 day limitation may be enforced by a timebomb mechanism.

  8. II. Negotiated contracts • Standard software • licence • installation • training • maintenance • … • Software development

  9. 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?

  10. 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

  11. Software development contracts • Confidentiality • Intellectual property

  12. Software development contracts • Various other clauses • Audit • Liability • Contract managers • Financial clauses • Prices • Invoicing • Payment • Bank guarantee

  13. 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.

  14. Questions? Jos Dumortier K.U.Leuven University Faculty of Law – ICRI jos.dumortier@law.kuleuven.ac.be http://www.icri.be

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