Development and legal analysis of contracts for IT-sector
Legal services for the development and legal analysis of various agreements in the field of information technology
The field of information technology is rapidly developing, changing directions and relatively new for the Russian legislative regulation. In fact, any areas of activity in this area require elaboration through the conclusion of contracts of a diverse nature.
Features of legal analysis and development of contracts in the field of IT
In fact, organizations working in the field of information technology are faced with the need to conclude contracts even at the planning stage of its creation, since it is extremely important to settle legal relations between business partners, and to distribute capital invested in business.
Also, when recruiting personnel, it is important to determine the grounds on which the relationship will be built (a civil contract or an employment contract). A common situation in the IT field is the emergence of a conflict between an employee and an employer over the rights to the results of the employee's intellectual activity. The employer may adhere to the position that the software and other IT products created by the employee belong to the employer. However, the employee may consider this to be a violation of his copyright. As a rule, the results of an employee's intellectual activity may belong to the employer if the creation of an IT product was part of the employee's job function, his job duties (Article 1370 of the Civil Code of the Russian Federation). In this regard, it is extremely important to clearly regulate the employee's labor duties in the employment contract and job description. In addition, for these documents to be valid, it is necessary to comply with all procedures for transferring to the employee his copy of the employment contract and the procedure for familiarizing the employee with the legal acts of the employer.
In order to create an IT product, one company enters into a cooperation agreement with another. For example, an agreement for software development, an agreement for modifying an existing software, a license agreement, a technical support agreement, an agreement for the creation and / or promotion of a website and other types of agreements. A fairly common practice is the conclusion of mixed contracts, since in fact such contracts include the need to resolve issues: the provision of certain services, copyright compliance, minimization of tax risks, compliance with anti-corruption laws, liability of the parties in the presence of claims from third parties, and sometimes and compliance with international law.
When distributing IT products on the official websites of developers or distributors, special attention should be paid to the legal design of the website. The most common violations of the website are:
- failure to regulate the procedure for processing personal data of site users and/or failure to obtain consent from users to process personal data;
- violation of the requirements for the procedure for processing payments made through the site;
- incomplete provision of information on distributed products to the end consumer;
- violation of the requirements for advertising materials contained on the site;
- incomplete designation of public offer and other violations.
When creating IT products, special attention should be paid to the terms of reference, since the more detailed the requirements for the result of work on the creation of a particular product / achievement of a certain result are described, the more chances are to exclude the occurrence of conflicts because of a different understanding of the terms of contract execution by the customer and the contractor. It is the terms of reference that can become an evidence base in the event of a collision with an unscrupulous counterparty.
To avoid checks by control and/or supervisory authorities, as well as to avoid the occurrence of conflict situations with counterparties and / or third parties, it is recommended to conduct a timely legal analysis of contracts submitted by counterparties, as well as a detailed study of all the necessary conditions for the successful operation of IT- company and its legal protection.
Distribution of software
The general term “distribution” means the construction of mechanisms for the sale of goods/ works / services, debugging the system of goods turnover, including through intermediary companies (distributors) representing the products of the manufacturer / developer.
IT products, including software, are transferred by developers to other persons who distribute them. As a rule, this is since the manufacturers of an IT product, for its distribution in other states, are very costly to directly support its distribution among end consumers, immersion in the peculiarities of the national legislation of another state, interaction with customers. For these purposes, a national distribution company is involved, which is engaged in debugging the delivery of the product to the market. At the same time, there are various forms of execution of the so-called distribution agreements, which, due to the complexity of regulated legal relations, are often of a mixed nature and combine various types of agreements.
To distribute software by a distribution company, it is necessary to conclude a license agreement with the developer on the condition that the distributor has the right to conclude sub-license agreements. However, in Russian legislation, it will not always be optimal to conclude a sublicense agreement with the end user, since in fact the terms of such an agreement may include a software supply agreement, a software maintenance service agreement, etc. At the same time, to simplify the procedure for concluding agreements with end users, an offer agreement is concluded. At the same time, in order to avoid VAT taxation and receive the corresponding benefits (by virtue of subparagraph 26 of paragraph 2 of article 149 of the Tax Code of the Russian Federation), the agreement must include elements of a license agreement, in connection with which distributors sometimes refuse to name the agreement with the end consumer as a supply agreement software.
It is also important to pay special attention to the situation when a distributor concluding an agreement with a software developer undertakes to conclude agreements not with end users, but with other participants in the distribution chain. In this case, it is recommended to include in the main license agreement the conditions under which the products are sold at all stages of mediation. This will protect the rights of developers, as well as regulate the procedure for interaction between distributors.
Thus, the software distribution process requires detailed regulation through the elaboration of all the basic terms of contracts with an individual approach to the wishes of the customer and each specific legal situation.
- Development of all types of contracts related to the work of IT companies, as well as the creation and implementation of IT products
- Verification of IT contracts submitted by the customer's counterparties
- Legal assistance in checking contractors before concluding an agreement
- Legal support of software distribution
- Structuring of all types of transactions in the field of information technology
- Legal support on all issues related to tax optimization when concluding agreements in the IT sector
- Representing the interests of IT companies in negotiations with counterparties when concluding contracts
- Representing the interests of the customer when changing or terminating previously concluded contracts
- Legal advice on all issues related to the conduct of contractual activities in IT sector