The Landscape of Software Transactions: An Overview

76 questions on the landscape of software transactions, answered and cited by the UpLaw editorial team.

• Can a SaaS provider trigger copyleft obligations without distributing anything?
• Can a software distribution agreement trigger franchise law?
• Can a vendor add terms after the deal is already made?
• Can used software licenses be resold in the European Union?
• Does UCC Article 2 govern software contracts?
• Do software licenses transfer automatically in a merger or acquisition?
• Have courts held that software is a “good” under the UCC?
• How do end-user terms work in a channel deal?
• How does deal structure affect which software licenses transfer?
• How does SaaS differ legally from a traditional software license?
• How does the goods-versus-services question change a warranty claim?
• How is background IP handled in a development agreement?
• How should a development agreement address open-source risk?
• How should a drafter handle the uncertainty about which law governs software?
• How should a statement of work handle acceptance?
• If I pay a developer to write code, do I own the copyright?
• Is violating an open-source license a breach of contract or copyright infringement?
• Should an international software contract opt out of the CISG?
• What are anti-UCITA “bomb-shelter” statutes?
• What are the ALI Principles of the Law of Software Contracts?
• What are the four archetypes of software deals?
• What are the four questions to ask about any software transaction?
• What are the most common causes of software disputes?
• What are the practical rules for designing enforceable online terms?
• What are the structures for cloud or SaaS continuity escrow?
• What are the two routes to work-made-for-hire status?
• What data questions must a SaaS contract answer?
• What design makes online terms enforceable?
• What did ProCD v. Zeidenberg decide about shrinkwrap terms?
• What does a limitation of liability clause typically do?
• What does it mean for a remedy to “fail of its essential purpose”?
• What does UCC Article 2 supply that the common law does not?
• What else does the license-not-sale characterization affect besides resale?
• What encumbrances travel with software in an acquisition?
• What happens if a development agreement has no written IP transfer?
• What happens to a software license if the vendor files for bankruptcy?
• What happens to on-premises software if the customer stops paying maintenance?
• What intellectual property rights protect software?
• What IP chain-of-title problems surface in software diligence?
• What is a data processing agreement and when is one needed?
• What is an IP infringement indemnity and why does it matter?
• What is source-code escrow and when is it useful?
• What is the covenant-versus-condition distinction in a license grant?
• What is the difference between a perpetual and a term software license?
• What is the difference between a reseller, a VAR, and an OEM?
• What is the difference between clickwrap, browsewrap, scrollwrap, and shrinkwrap?
• What is the difference between IaaS, PaaS, and SaaS?
• What is the difference between object code and source code in a transaction?
• What is the difference between permissive and copyleft open-source licenses?
• What is the drafting discipline that software contracts reward?
• What is the first sale doctrine and why does it matter for software?
• What is the indemnity remedy cascade and what is its risk to a customer?
• What is the predominant purpose test?
• What is the relationship between an MSA and a SOW?
• What is the typical software warranty structure?
• What is the Vernor v. Autodesk test for licensee versus owner?
• What language actually transfers ownership of custom-developed software?
• What liabilities are commonly carved out of a software liability cap?
• What makes a source-code escrow arrangement actually work?
• What remedy should a customer negotiate for chronic SaaS downtime?
• What should a customer look for in a SaaS service level agreement?
• What should the grant of rights cover in a VAR or OEM agreement?
• What was UCITA and what happened to it?
• Why do browsewrap agreements often fail?
• Why does calling custom software a “work made for hire” often fail?
• Why does merely running software require a license?
• Why doesn't the employee prong of work-for-hire cover outside developers?
• Why doesn't traditional source-code escrow work for SaaS?
• Why do SaaS agreements sometimes still include a software license?
• Why do software agreements shout their warranty disclaimers in all capitals?
• Why is agile development hard to contract for?
• Why is a suspension-and-termination clause especially dangerous in software?
• Why is license scope such a common source of unbudgeted liability?
• Why is software so hard for contract law to classify?
• Why should a customer scrutinize “improve our services” clauses?
• Why should a grantback of improvements be non-exclusive?