Standards and Warranties in Software

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Standards and Warranties
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Performing consulting work applies skills to an abstract problem to produce tangible results The goal here is to relate these results to the issue that caused the client to engage you To say, This project will solve your problem and make your systems do what you want them to do may be fraught with as much risk as saying of a car that this vehicle will get you where you want to go If someone bought the car and later began litigation against the vendor, claiming that the intended destination was a mid-Atlantic island, and the car didn t get the purchaser there without a boat, is the vendor liable for the boat freight charge for having made the claim Similarly, in consulting, you don t work to an abstract notion of what the client wants to do, you perform your work to meet a specific standard set out and agreed between the two of you
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Much of what IT consultants do involves intellectual property in one form or another We use software code and other intangible technology; we write code, plans, and specifications; we integrate our work with that of other vendors Here are some considerations to address in your legal documents regarding intellectual property: 1 Nondisclosure provisions You may need your Nondisclosure Agreement (NDA) as a separate document, or you may wish to include it as a schedule within your existing document Either way, you need to address: a How should archives or backups be made and kept By whom and where Who grants permission for copies to be made (Remember to require that the location of any such copies be made known)
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b Acknowledgment and description of what software, documents, or other intellectual property constitutes the property of which party in the agreement c The names or positions or roles of any persons to whom disclosure of intellectual property may be made, and who has the authority to make disclosure 2 Noncompetition clauses Are noncompetition clauses reasonable in the circumstances If they are too restrictive, you run the risk that they may be struck if they are disputed 3 Ownership of source code Does the consultant own the source code written on the project, or does the client own the source code as a work made for hire Unless you want someone else to interpret who owns what, this must be stated within any document or agreement 4 Trademarks, patents, and copyrights New ways of doing things and new products may come to light during some projects If they can be, or should be, protected by copyright and/or patent, who owns those rights Who owns the rights to any trademarks that are planned or that may be produced in the course of the project
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If the consulting project requires the overseeing of others work, or of the work output from another group, or from machinery, it may be appropriate to build in a management fee Describe it in the contract 1 Is the consultant to be reimbursed for out-of-pocket expenses directly related to the project How much, when, and by whom 2 As the consultant, do you have the right or the freedom to contract portions of the project out to subconsultants Get it in writing if you need to do this, and frame the permission with the limits and conditions under which you can do it, and how the subconsultants will be reimbursed for their work 3 Do accounting records need to be maintained If so, by whom In what form do the parties agree that the records will be kept and made available Who can examine the records, and under what circumstances or conditions
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