How can I protect myself when I use an IT developer?

It is now almost impossible for any business to do without an IT development phase. Whether it is a website, business software or a SaaS service, it is sometimes difficult to carry out these developments internally. You must therefore use an IT service provider, or a developer. All too often, we see cases where the development process has not been clearly defined, which leads to disputes at delivery, or at payment, if the deliverables do not correspond in all respects to your requests. Likewise, there is often no provision for the transfer of intellectual property rights to developments.

It is therefore preferable to conclude a service contract governing these various issues. This article is not intended to be exhaustive but rather to promote good contractual practices.

Conclude an IT development services contract

The content of the IT development contract may vary from case to case, but common clauses are generally found there:

• Development schedule: The schedule can be firm or broader, but it is best to include it to avoid developments going beyond the agreed deadlines.
• Content of developments and deliverables: it is essential that the content of developments be detailed in a specific annex (specifications, a commercial proposal, etc.).
• Procedure for validating deliverables (“recipe”): this procedure provides for the period during which the customer can transmit his reservations, then the period for correction by the service provider. It is also possible to set a limit on the number of presentations in recipes, if the developments are not satisfactory.
• Extent of the parties' obligations: obligations of result, obligation of means, the latter not being recommended for the client.
• Payment: fixed payment, payment by the day, payment schedule, late payment. A financial annex may also be provided (commercial proposal, financial conditions).
• Transfer of intellectual property: see below for more information.
• Developer guarantees that the deliverables will not be counterfeited.
• Confidentiality.
• Responsibility of the parties: it is important to ensure that the liability of the developer is not too limited.
• Termination for fault: this makes it possible to end the contract if the developments do not go as planned.
• Dispute management and applicable law (especially in the case of a non-Franco-French contract).

Specific clauses can also be added according to the particularities of the project (maintenance, personal data, etc.).

Transfer intellectual property on developments

The computer code, whether it is the one that makes up a website, software, or any other development, but also the interface, are likely to be protected by copyright. If you order a development, whatever it is, you must ensure that its intellectual property is transferred to you. The intellectual property code, in its Article L131-3, indicates that in the absence of transfer of copyright by contract, by respecting a specific formalism, the developer remains the owner of all rights to developments. In a very simplified way, the contract should include:

• Details of the rights transferred.
• The duration of the transfer.
• The territory of transfer.
• The price of the transfer.
• The destination of the rights transferred.

Otherwise, intellectual property rights are not transferred. Consequently, if no intellectual property transfer clause is included in your contract, or if the clause is poorly written, you will not be the owner of your developments. This may have an impact on your future business. You could in fact be convicted of counterfeiting, and lose the right to use the developments you paid for. In case of fundraising, potential investors will also want to make sure that you own the rights. Otherwise, this may cause delays, or even be an obstacle to investment. It is therefore strongly recommended, for your peace of mind and the assurance of being able to enjoy the full benefits of your developments, to deal with this problem from the initial contractual phase, before the start of the services. If necessary, do not hesitate to contact us. We have significant expertise in drafting IT service contracts and can assist you.