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Forum:
WinDev Forum
Beiträge im Thema:
8
Erster Beitrag:
vor 5 Jahren, 11 Monaten
Letzter Beitrag:
vor 5 Jahren, 11 Monaten
Beteiligte Autoren:
RAUL2, Chris du Toit, GuenterP

Selling/transfering source code

Startbeitrag von RAUL2 am 28.08.2012 22:51

Hello guys.
This is the thing... I've made a software for a client of mine some time ago. This software is protected by a dongle. Of course, the source code is mine. Now, this client wants to purchase the source code, in order to sell copies by himself. His copy, is the only one sold by me, so, I like the idea too.

What experience do you have regarding this subject? I actually don't know what kind of document/contract to write in order to make things well. Any suggestions?

Kind regards.

Antworten:

Hi Raul,

1 - if they buy the SOURCE then its theirs. Forget anything that happens later.
example: If I sell you my car then I lose any rights to the car. It's not mine anymore, it's yours.
Same for source codes. They pay for having insight and for applying changes, for doing maintainenance. And for selling it.
If you plan to make up a nifty contract with a thousand ifs and thens, forget it.
You'd have to have the time and money to sue them later.

2 - try to get one payment - as big as possible - and that's it.
Since you're the originator / maker of the software, you're entitled anyway to sell it too.
Do not sign any contract that says that you aren't allowed to sell that program anymore.
This endangers any future software sales of your company.
Write a correct invoice about their non-exclusive right to use the source code,
note your authorship on it and keep a copy for the next ten years.

Kind regards,
Guenter

von GuenterP - am 29.08.2012 06:24
While I'm sure the laws in your jurisdiction may vary, you typically have the right to structure the asset sale in many different ways. What is key is that you can sell them a license which has a specific legal meaning.

You can give full, exclusive rights to the source and any derivative works - meaning they can do what they want. They can modify it, sell it, rebrand it ...whatever they choose.

You can limit it to non-exclusive, meaning you still get the right to sell it to someone else who can also modify it etc.

You can protect your intellectual property by giving a limited license. The limited license may allow them to sell the software but keep your logo. Or it may allow selling it without any modification. You can even give a limited license where they get to modify and sell it but not to companies in a certain industry, for example.

As an alternative, you could enter into a pure resale agreement with them giving them the right to resell (with commission, profit split or upfront payment), but give them no right to the source code.

In otherwords, you can structure this in many different ways and choose to which level you wish to protect your intellectual property. Determine what is in your best interests and then determine how to structure the contract or license agreement.

von Chris du Toit - am 29.08.2012 12:33
Hi! Thanks a lot for your remarks, they are very useful.

I have this issue more clear. Something I should say before is:

The client doesn't want the source code, what he actually wants is to be sure I'm not selling the software to another client. In other words, he wants exclusivity. In that chat, I've proposed him to give him the source code, because that came to mind in that moment (my mistake...) I don't have any problem in giving him the source code, because I know he will want me to make modifications (almost sure.) Anyway, I'm aware he can look for another programmer and that's ok.

That being said to my client (the source code thing), I guess I can't "rollback" this. So, the only thing to do is to write the document. I have a contract model, but I think it could be better to write a simple document explaining the source code property transfer. If you have more comments about this, they're very wellcome!!

Kind regards.

von RAUL2 - am 30.08.2012 14:56
I think it depends on what you want as an outcome.

Are you selling everything as an asset and have nothing more to do with it? If that's the case, what happens when one of your client's customers finds a bug. Who is responsible for fixing the bug? You will need to be clear with this in your contract.

It sounds like you're giving it all up...you will not be selling it anymore, and not making any further enhancements. If this is the case, you should structure it as a asset sale (source code, branding, Intellectual property, documentation, Domain name (if included) etc), and have a limited support period. Something along the lines of providing 60 day support upon execution of the agreement, limited to training the new owner and fixing reasonable bugs discovered during the 60 days. After the 60 days, they're on their own. And they may want a non-compete clause (don't offer it...let them ask for it!) to stop you from making another similar product. Make sure this is not too restrictive.

The above is just an example of course. If you want to keep the product as well (not sell it completely), you can also make that clear and offer to not give them the sourcecode but just put it in escrow that it will only be released to them upon certain conditions happening.

Chris

von Chris du Toit - am 30.08.2012 15:15
Quote
Chris du Toit
I think it depends on what you want as an outcome.

Are you selling everything as an asset and have nothing more to do with it? If that's the case, what happens when one of your client's customers finds a bug. Who is responsible for fixing the bug? You will need to be clear with this in your contract.

It sounds like you're giving it all up...you will not be selling it anymore, and not making any further enhancements. If this is the case, you should structure it as a asset sale (source code, branding, Intellectual property, documentation, Domain name (if included) etc), and have a limited support period. Something along the lines of providing 60 day support upon execution of the agreement, limited to training the new owner and fixing reasonable bugs discovered during the 60 days. After the 60 days, they're on their own. And they may want a non-compete clause (don't offer it...let them ask for it!) to stop you from making another similar product. Make sure this is not too restrictive.

The above is just an example of course. If you want to keep the product as well (not sell it completely), you can also make that clear and offer to not give them the sourcecode but just put it in escrow that it will only be released to them upon certain conditions happening.

Chris

Hi Chris, thanks again for your comments.
What do you mean with the "non-compete clause"? I guess my english is still poor...
Regards.

von RAUL2 - am 31.08.2012 14:04
Sorry..."non-compete" is used to stop you from competing with them in the future.

For example, if you are selling your software which is related to say Inventory control, they may want a non-compete clause which stops you from writing or selling any new software in the Inventory control field for 18 months etc.

von Chris du Toit - am 31.08.2012 14:10
Quote
Chris du Toit
Sorry..."non-compete" is used to stop you from competing with them in the future.

For example, if you are selling your software which is related to say Inventory control, they may want a non-compete clause which stops you from writing or selling any new software in the Inventory control field for 18 months etc.


Crystal clear... thanks a lot!

von RAUL2 - am 31.08.2012 14:44
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