Software Contracts

Software contracts are the legal agreements that govern the development, licensing, distribution, and use of software and software-based services. In Kenya, software contracts are governed by the general principles of contract law, the Copyright Act, 2001 (for the protection of software as a literary work), the Data Protection Act, 2019 (for the processing of personal data through software), the Kenya Information and Communications Act (for telecommunications and digital services), and the Consumer Protection Act, 2012 (for software sold to consumers). As the Kenyan technology ecosystem has grown, software contracts have become one of the most active areas of commercial legal practice.

This area covers the full range of software-related agreements. Advocates draft and negotiate software development agreements — the contracts under which a developer creates custom software for a client. Advocates address the scope of work, the milestones and deliverables, the acceptance testing process, the payment terms, the intellectual property ownership (including the critical question of whether the client or the developer owns the source code), the warranties, the limitation of liability, and the maintenance and support obligations.

Advocates draft and negotiate software-as-a-service (SaaS) agreements — the contracts under which a provider hosts and operates software for a customer over the internet. Advocates address the service description, the service levels (including uptime, response times, and support), the data processing terms (including the obligations of the provider as a data processor under the Data Protection Act), the customer's responsibilities, the fees and the payment terms, the term and termination, and the data return and deletion obligations on termination.

Advocates draft and negotiate cloud services agreements — the contracts under which a provider offers computing infrastructure (servers, storage, networking) or platforms (development environments, databases) over the internet. Advocates address the service levels, the security obligations, the data location and sovereignty, the compliance certifications, and the service credits for service level breaches.

Advocates handle mobile app terms of service and privacy policies — the legal agreements that govern the use of mobile applications. Advocates address the user's rights and obligations, the acceptable use policy, the user-generated content provisions, the disclaimers and limitations of liability, the subscription and in-app purchase terms, and the data protection terms. Advocates also handle the app store agreements — the contracts with Apple and Google that govern the distribution of the app through their stores.

Advocates draft and negotiate technology transfer agreements — the contracts under which technology, know-how, and intellectual property are transferred from one party to another. Advocates ensure that these agreements comply with the Competition Act (which restricts certain technology transfer practices) and the transfer pricing rules (which govern the pricing of cross-border technology transactions).

Advocates also handle open-source compliance — advising businesses on the obligations that arise from the use of open-source software in their products, including the licence obligations (attribution, source code disclosure, copyleft), the management of open-source components in the development process, and the resolution of open-source compliance issues identified in due diligence. Advocates prepare open-source policies and contributor licence agreements (CLAs) for businesses that contribute to or maintain open-source projects.