Software Partnership Agreement
A software partnership agreement sets the needs and expectations of both the software developer and client in terms that everyone can agree upon. Often times, contracts can contain lofty and vague language that is easy to gloss over and a struggle to comprehend. A strong and sustainable contract is written clearly and accurately depicts the roles of both parties. Software partnership agreements require articulate and precise language in order to be effective. Developing concrete clauses that specify the roles, obligations, and rights of each party is the best way to prevent conflicts.
Below are some instances of the common terms in a software partnership agreement and their conforming clauses:
- Intellectual Property Rights
This clause of a software partnership agreement identifies who owns the deliverables or the work product to be developed under the software development agreement. Thus, it is in the interest of both parties to establish who is the owner of the software being created. Such is significant since if the client doesn’t have full rights to the software, issues may arise when they try to incorporate, use, or license the software. Making sure that ownership rights are firm is key in this section. Solidifying this objective requires a certain language in your Intellectual Property Rights clause:
“Developer assigns to Client all rights, title and interest in and to the Software and anything created or developed by Developer for Client under this Agreement, including all patents, copyrights, trade secrets and other proprietary rights. Upon request, Developer will sign all applications, assignments, instruments and papers and perform all acts necessary or desired by Client to assign the Software fully and completely to Client and to enable Client, its successors, assigns and nominees, to secure and enjoy the full and exclusive benefits and advantages thereof.”
- Indemnification
Every effective software partnership agreement should also include information on indemnification. Indemnification denotes an obligation by which one party engages to save another from a legal consequence of the conduct of one of the parties, or of some other person. An obligation to indemnify could manifest as implied by law or under an express contract. In a software partnership agreement, it’s reasonable for a developer to agree to indemnify for a breach of warranty under the agreement, willful or negligent acts, omissions, and for infringement of a third party’s intellectual property right. Indemnification provisions can be drafted in various forms, so it’s important that the clauses reflect the specifics of the agreement. One example of this kind of clause is:
“Developer agrees to indemnify, defend, and hold Client, its successor, assigns, and affiliates, harmless from and against any and all claims, costs, liabilities, and expenses (including reasonable attorneys’ fees) arising from or related to 1) Developer’s breach of any warranty or representation contained in this Agreement; 2) Developer’s acts and omissions; 3) any claim of infringement of a third party’s intellectual property right; 4) any violation of applicable law.”
- Warranty
Developers should always warrant the work they’re creating a software partnership agreement. A warranty in the agreement provides recourse in the instance if the deliverables don’t work in accordance with the product’s specifications or if there’s a concern of infringement. At minimum, the warranty should specify that the work is non-infringing, and that all components of the software will function as intended. When the objective is to emphasize non-infringement in the Warranty section, then this is the clause to use:
- Developer represents and warrants that: the Software will not infringe any patent, copyright, trademark, trade secret, or other proprietary right of any person;
- For a period of the warranty period, the software partnership agreement provides that the software will operate substantially in accordance with the specifications and documentation.
The main purpose of any software partnership agreement is to clearly delineate the rights and obligations of the parties. These are just a few of the important terms you’ll see in a software development agreement. Writing these terms and their subsequent clauses requires clear and concise language as to reduce the risk of misunderstanding.
Scope of software partnership agreement
A software partnership agreement governs the initial purchase of software and support of software, and other additional services, as well as any future purchases made by you that reference this Agreement. The software partnership agreement also includes each specific term of operation. The software and its permitted use are further described in the documentation. The term “Software” includes Documentation unless otherwise specified.
Furthermore, a software partnership agreement does not apply to cloud Products. Such agreements do not apply to hosted or cloud-based solutions. The preceding are often referred to as “Cloud” deployments, whose use requires a separate agreement.
Accounts and authorized users
Regarding the account registration of a software partnership agreement, one must register for an account with us in order to place Orders or access or receive Software. The registration information must be accurate, current and complete. One must also keep the registration current to enable sending of notices, statements and other information to via email or account. One is also responsible for all actions taken through your account, including orders made or apps enabled. Such could incur extra fees not anticipated by the software partnership agreement. If a party orders software through a reseller, the agreement has no shield. Thus, a party is solely responsible for (i) any access by Reseller to your account and (ii) any related rights or obligations in your applicable agreement with the Reseller.
Authorized users in a software partnership agreement
Only authorized users in a software partnership agreement may access and use the software. Some Software allows parties to designate different types of authorized users, in which case pricing and functionality may vary according to the type of authorized user. One may be responsible for compliance with the software partnership agreement by all authorized users. Such includes what the authorized users do with the data, and for all fees incurred by authorized users. Furthermore, all the usage of software must be solely for one’s benefit or one’s affiliates. The preceding scop of use should thus be included by the parties in the software partnership agreement.
Secondary Users
As may be described in the software partnership agreement, certain software may be used as part of your support resources related to your own products. Subject to the terms and conditions of the agreement, one may grant customers’ end users (“Secondary Users”) limited rights to use the software solely so that they may view and interact with such resources. The software partnership agreement may also restrict one from sharing the software with unauthorizes persons.
Usage of software
As per the terms and conditions of the software partnership agreement, one may be provided with a non-exclusive, non-sublicensable and non-transferable license to install and use the Software during the applicable License Term for your own business purposes, in accordance with this Agreement, your applicable Scope of Use, the Documentation and all Laws.
Restrictions and Limitations
Except as otherwise expressly permitted in the software partnership agreement, a party will not: (a) reproduce, modify, adapt or create derivative works of any part of the Software;
(b) rent, lease, distribute, sell, sublicense, transfer, or provide access to the Software to a third party;
(c) use the software for the benefit of any third party;
(d) incorporate the software into a product or service you provide to a third party;
(e) interfere with any license key mechanism in the Software or otherwise circumvent mechanisms in the software intended to limit your use;
(f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the software, except to the extent expressly permitted by applicable law (and then only upon advance notice to us);
(g) remove or obscure any proprietary or other notices contained in the software;
(h) use the Software for competitive analysis or to build competitive products;
(i) publicly disseminate information regarding the performance of the Software; or
(j) encourage or assist any third party to do any of the foregoing.
Number of instances
Unless otherwise specified in the software partnership agreement, each software license that one purchases may be installed. Such include through production on systems operated and owned by the authorized users. The parties may also make available “developer” licenses free of charge for certain of our software offerings to allow you to deploy non-production instances, such as for staging or QA purposes. Details for how to request non-production licenses are available on our website.
Product
An effective software partnership agreement should also include product-specific terms. Some software could be subjected to extra terms specific to that software as set forth in the Product-specific terms. By accessing or using a product covered by the product-specific terms, the parties agree to the product-specific terms.
References
https://n-int-seekweb.com/search
https://www.zapmeta.ws/web/results
https://www.contractscounsel.com
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