When drafting or negotiating software agreements, it is important to understand the definition of "Software." How software is defined will affect many of the important clauses in an agreement. It is not likely that the software definition will take on a technical or dictionary-like definition such as, "a set of instructions used to control a computer or how to operate a computer or computer programs."
There does not appear to be a universal way to define software in a software agreement, which can complicate matters from the beginning of a discussion of an agreement. However, there are typical elements used in software definitions:
a. Object code vs. source code
Many software definitions make a distinction between the object
code that is the executable files of
a program and the source code that is the modifiable portion of the
code. Software licensing code. Software licensing agreements tend
to make it clear that only the object code is being licensed.
Alternatively, in development agreements, the software definition
may make it clear that software includes the entire source
code.
b. Documentation
The policies, procedures and written directions for operating the
software make up the documentation for the software. Documentation
is commonly included as a set of electronic files provided with the
software.
In those cases, documentation may be included in the definition of
software.
c. Product Names
In simple licenses, a product name may be used to define the
software. For example, "the software is defined as the product
provided by the publisher as Macrohard Panes 2015."
There is no one correct way to define software in an agreement.
How software is defined can depend on the nature of the
agreement. More complicated agreements may require more complicated
software definitions or even different variations of software
definitions that differentiate software by 1) where the software
originated, 2) where it resides,
3) which party is providing it, or 4) specific functionalities or
program names. Regardless of how software is defined, it is
important that both parties clearly understand the definition of
software before discussing other terms and conditions of the
agreement.
How software is defined can be a theme that impacts the entire agreement. When drafting or negotiating software agreements, it can be helpful to employ the assistance of legal counsel experienced in advising clients in properly defining the software.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.