Software Access Agreement

What is a Software Access Agreement?

A Software Access Agreement is a legal contract signed between a software owner and a client (who will gain access to the software). This contract determines the conditions for access to the software product.

A Software Access Agreement is narrower in scope compared to Software Licence Agreements: While Access Agreements only give access to a client for using the software product; Software Licence Agreement stores the source code on client’s devices so the client can access and use the source code.

This makes the Licence Agreements riskier for software owners because the client can get access to the source code, copy it and sell it to others (even though the Licence Agreement will of course prohibit this type of behaviour).

However, the Access Agreement is safer because it does not reveal the source code.

The software product which is the subject of Software Access Agreement can include the following elements:

1. Web applications;
2. System configurations;
3. Computer Source Code;
4. Updates or HTML scripts.

Software Access Agreements are quite common for SAAS (software-as-as-service) products because these products do not require the storage of source code on client’s device and the client’s access to the software product is enough.
For example, if a medical clinic needs to store and manage the data of its patients and organ donors, it can access a customer relationship management software product on a website. Does the medical clinic need to download the software itself and store the source code on its devices? The answer would be a simple no because the clinic only needs to access this software product online and use it. Therefore, a Software Access Agreement is more appropriate.

Why Do I Need A Software Access Agreement?

To protect yourself from liability – Once you give access to your software product without a contract, you may not control or limit what the user is doing with it. What if the user uses your software product to run its money-laundering operations?

To protect yourself from any liability, you can enter into a Software Access Agreement to regulate the use of your software and disclaim any liability.

Security of your software – You can limit the number of people or the number of devices which will have access to software by this contract. This will ensure the security of your software product and protect you from any unauthorised use of the software. For example, you can decide in your contract that only the finance department of the client can access the software or only 4-5 pre-determined devices can be used to access the software.

You can even choose devices with a sufficient level of security against cyber-attacks so that your website or software application is not attacked.

Determine the Warranties you provide – A warranty is a promise you make to your buyer about the product you sell. For instance, stating that your product will work with 99% accuracy is an example of warranty. By entering into a software access agreement, you can clarify the warranties you provide so that you don’t have to deal with future disputes about this.

What Sort Of Clauses Are In The Software Access Agreement?

1. Who can access? – Will all employees of the Client access to the software or will it be limited to a particular group of people, a specific department such as HR or only high-level executives? You can determine who can access the software with this clause.
2. What devices can be used? – Setting standards for the types of devices or the number of devices can be useful to ensure security of the software and data.
3. Ownership – Giving access to use your software is not equal to selling it. You still have the property rights over your software and giving access rights to a third-party does not change this.
4. Prohibitions – You can explicitly state that the client cannot reverse-engineer the source code, resell or sublicence the software or share its access rights with others.
5. Obligations of the client – It is more convenient for you to include in your contract that Client is exclusively responsible to install and maintain its IT system to use your software. After all, you should not be liable if the computers, servers or internet connection of the client has problems.
6. Availability – Most software access agreements concern software products accessed via a website. You can determine these issues:
   -When will the software be available? During working-hours or weekends?
   -Will the service be unavailable during maintenance period?
7. Support and Maintenance – How do you provide support services? Should the client call you or e-mail you? What will be the response time?
8. Acceptable use – You can limit the purposes to use the software. You can say that the client can only access and use the software for its business and nothing else.
9. Termination – You should determine the conditions to end the contract. For example, you can insert a provision like: If the client uses the software in inappropriate ways, you can immediately end the contract without notice.
10. Warranty – You can give warranties such as you have IP rights on the software product and you can give access to your clients or you can also give performance guarantees.
11. Confidentiality – If the client accesses the software online and use your program to manage its database, you may have access to such data and potentially the trade secrets of your client. It is always recommended to put a confidentiality clause for such data and other rights to protect yourself from liability.

If you have any questions about a Software Access Agreement please feel free to get in touch!