Application project contract
If the institution decides to contract or cooperate with other software developers to develop the GIS application software system and to purchase the off-the-shelf software system from the developer, it is necessary for the two parties to sign a technical contract for the development or purchase, collectively referred to as software trade. The technology contract defines the purpose of trade, the rights and responsibilities of both sides and so on. In China, the signing, execution, alteration and termination of technology contracts need to be regulated by the relevant principles in the ‘Copyright Law’ and the ‘Technology Contract Law’。
As the specific circumstances of the parties are different, the specific contents and forms of the contract are also different. Generally speaking, in the form of cooperative development, because users own part of the copyright, the contract has less restrictions on users. While in the form of ‘turnkey’ development or direct purchase of software, the restrictions are stricter for users as recipients [1]_. Specifically, software technology contracts usually contain the following terms：
Introduction: It is the first clause of the contract, including the date of signing the contract, the names and addresses of the parties, and the background of the contract。
Definition: In the definition, some key terms are defined to avoid disputes caused by inconsistencies in terms and concepts in the contract. For information system technology contracts, terms that need to be defined include ‘licensed software’, ‘documents’ and so on. For ‘licensed software’, you need to specify the name, version, form (object code, source code). For ‘document’, you need to specify either it is a user manual or an engineering document, or both。
Purpose: The name of the development system, the mode of cooperative development, the license of use and the technical specifications of the system are described. Technical specifications include hardware and software environment, function description and performance description。
Authorization and Restriction: This part stipulates the rights of software suppliers and recipients as well as the restrictions on these rights. In each specific contract, the content and restrictions of authorization obtained by users are inconsistent. In technology contracts, authorization includes: (4.1) Right to use: Software right to use is the most important right granted to users through licensing contracts, which is the object of signing licensing contracts. However, as a supplier, some restrictions on the right to use can be added, including operating environment, data and so on. (4.2) Distribution rights: If the recipient is not the end-user and can distribute the system, it is necessary to determine its distribution rights in the contract. (4.3) Exclusiveness: The right to use and distribute may be exclusive or non-exclusive. Distribution monopoly is generally only established within a region and within the industry. (4.4) Right to copy: Provisions for users to make legitimate copy backups. (4.5) Right to modify: Generally speaking, users who have the right to use or distribute the software provided by the supplier are not entitled to modify the software provided by the supplier. However, according to the actual situation, more reasonable provisions can be made in the contract. For professional GIS application software, because some professional models need to be provided by users, and need to be modified, it is generally stipulated that users have the right tmodify, in order to improve the model, but at this time the maintenance responsibility of the supplier should be stipulated. (4.6) Transfer rights to licensing contracts: The Licensee may transfer all the rights conferred by the licensing contract to a third party, but only once, with the consent of the supplier. (4.7) Restrictions on computer systems: Preventing system proliferation by restricting computer systems that run software. (4.8) Regional Restrictions: Restrictions on the use of contracts.
Delivery and installation: It specifies the specific content of the software provided by the supplier, including the program and documentation. For the program, it is necessary to specify whether the source code is included. What specific documents are included in the document, and whether the application software is installed in the computer by the supplier。
Transfer and acceptance: In order to ensure that the system acquired by the recipient can be used in practice, the transfer and acceptance of the software must be arranged in the contract。
Training: If the supplier is required to undertake the training work for the recipient, the training terms should be set up in the contract, including the training time, content and cost。
Maintenance: clauses should be included in any software technology contract. Maintenance includes error correction maintenance, adaptability maintenance and perfection maintenance. The first thing to be noticed in the contract is error correction maintenance. Maintenance clauses include the time to correct errors, the cost to bear, and specify which conditions are not within the scope of the supplier’s maintenance。
Deadline: The deadline stipulates the validity of the contract。
Remuneration and payment: In the part of compensation and payment, there are three aspects: the mode of payment, the cost of payment which software products and services are paid for, and the time of payment. For example, for the end user, the payment methods include sequential fixed payment, periodic fixed payment and payment according to the operation situation。
Paying taxes: The tax-bearing units stipulated in this part。
Ownership: Generally speaking, the recipient only acquires the using right to the software, and the ownership is not transferred. However, in cooperative development, ownership can be stipulated according to specific circumstances. In addition, in the case of contracted development, in order to protect the rights and interests of the recipient, it can be stipulated that ownership belongs to the enacted principal。
Confidentiality and restriction of competition: In the process of contractual development, both parties may use the other party’s confidentiality, so they need to stipulate the responsibility of confidentiality。
Guarantee and compensation: Guarantee means that the supplier guarantees the software, including functions, performance and copyright. If the guarantee cannot be realized, compensation for damages shall be provided to the recipient。
Disposal of breach of contract: It stipulates the treatment of breach of contract, including termination of contract and compensation, etc。
Dispute settlement: In dealing with disputes arising in the execution of contracts, the usual practice is to refer experts with computer technology to arbitrate awards。
Termination: If the contract does not set a time limit, it needs to specify the circumstances under which the contract will be terminated and what the parties will do after the termination of the contract and the responsibilities they will continue to bear。
Integrity of clauses: Emphasis on the integrity of terms, the content that is not in the contract can not be a part of this software trade。
Force majeure: Owing to irresistible factors affecting the execution of a contract, one party should generally give an understanding and extend the time limit for the performance of the contract appropriately。
The choice of law: If the two parties are from the different countries, the country’law should be respectively adopted when disputes arise。
Taking effect: Generally, a contract can enter into force after signature. In some cases, it needs to be approved by the relevant department before it can enter into force. This article explains it。
The above content are some basic terms of software technology contracts. In addition, some annexes are often included to specify specific technical issues。