Licence contracts can be confusing by design. They are far from transparent, and there is little room for negotiation. Beltug has been touching on this issue for several years, including speaking with software suppliers and other stakeholders, creating the Proposal for a Software Publishers’ Code of Conduct (CoC) and, recently, transposing its principles into concrete contract clauses.
During this session, we had a look at the importance of a solid contract, for both parties. Next, we focussed on the contract clause models that have been built, and how you can use them. Finally, we zoomed in on software procurement in the public sector. The presentations from the event are available, exclusively for Beltug members (after login).
Erik Valgaeren, Partner and Head TMT/IP practice at Stibbe was a co-author of the CoC, and also a contributor to our translation of the CoC into actual contract clauses. He started by explaining the 'freedom of contract' and 'no formalism' principles (have a look at slide 3 for more detail on these concepts).
Formalities are not required to create a contract, he emphasised. So make sure you are aware when you are agreeing to one: don't 'stumble' into an agreement. The reason for written contracts is to have solid evidence of what has been agreed, and to avoid disputes. But you can certainly have a legal agreement between parties without a written contract.
Taking a look at software contracts, we see a patchwork of protection mechanisms (see slide 5). Copyright, for example, applies to all software: all software that is developed is automatically protected by copyright. So a software developer doesn't need to specify this protection.
Next, Erik went over a few important points when it comes to agreeing on using/purchasing a software (see slide 10).
To conclude his exposé, he revealed few pitfalls:
Second on the agenda was Piet Herman, seasoned expert in negotiating software agreements who also co-authored our Contract Clauses paper. After a short context of how the original CoC came to life, he went over its guiding principles (see slide 7). He emphasised that this CoC needs a maximum adoption to make sure it becomes 'common practice'. The first step to facilitating that adoption and gain ambassadors was the translation of the CoC into real contractual clauses.
Next, Piet discussed different paragraphs of the contract clauses paper:
(Have a look at slides 12 to 26 for more detail.)
Kristof Debergh, General Counsel at Smals, finished off the event with his view on the public side of software procurement. First Kristof touched upon the constraints he sees in public procurement of software:
Yet he also sees opportunities in public procurement: part of your public contract is determined by legislation. Plus, the client may be able to enforce certain unilateral changes and certain legal powers. And as a public authority, the organisation has the option to pool its needs with other public organisations.
To conclude, Kristof touched upon a few typical topics for public tenders:
30+ companies sharing concerns and questions on #SoftwareContracts and #SoftwareLicences. We had a look at hands-on clauses for your contracts. The paper with model clauses are published soon. Txs, Piet Herman, @Valgerik & @kdebergh for your insights! pic.twitter.com/i3AdPHM7OJ— Beltug (@Beltug) October 2, 2018
Access to more information about this topic and/or to download the paper is easy and fast, but exclusively for Beltug members (just login to get access).
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