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Trials and tribulations: Reviewing and negotiating software trial agreements

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By Paolo Sbuttoni, Tamzin Robson

19 Apr 2024 | 1 minute read

As our recent research has shown brand collaborations are on the rise. Against this backdrop we are likely to see more brand partnerships in relation to software development and trials. In this piece we will consider the issues that a customer/brand should look out for when negotiating a partnership or an agreement with a software provider.

These partnerships will help software brands reach a wider market and offer an improved product. They can take a variety of forms including Software Trials, Evaluation Testing and Beta Testing.

Although these arrangements are usually entered into on a short-term basis prior to a full commitment to purchase being made, these agreements should not be written off as low risk.

Often, they can expose a business to even more risks than the end product as the software provider has not yet had a chance to find and rectify potential areas of vulnerabilities.

Software providers will usually expressly disclaim any warranties as to functionality of the software. As the customer you should expect at least a warranty related to conformance with any specification provided and a robust accompanying Service Level Agreement.

Software providers usually includes broad exclusions on its liability and cap their liability at a very low amount (sometimes zero). As the customer this is not acceptable and a suitable liability cap to reflect the risk to each party should be negotiated.

 

Software providers will usually try to claim the intellectual property rights in any feedback given by the customer. As the customer you should avoid agreeing to this otherwise the software provider will be able to commercially exploit any amendments to the software suggested by the customer.

Software providers will often delete all data/material upon termination of the agreement. As the customer, as well as ensuring you have appropriate rights to terminate any agreement, you should also ensure that upon termination there are appropriate provisions to allow you to recover any data/materials stored or created through the software.

 

How to mitigate risk

Often a software provider will take a hard stance and there can be limited ability to negotiate the agreement to reduce the risk which leaves businesses keen to trial a commercially beneficial software with a dilemma. To get more comfortable with the risks involved in trailing software you could consider the following:

Ringfence a test environment – This involves limiting what a software can do and what applications it can interact with. Extra security measures may be added to ensure the software is actively contained.

Using test data – This involves using fake, mock, or example data for the purpose of developing and testing applications. Unlike real data or existing information, synthetic test data is generated manually or using algorithms. Where large amounts of test data our required you can reach out to specialist businesses who can generate this for you.

Contact us

If you would like our assistance in reviewing software trial agreements or tech-based agreements more generally, please contact Paolo Sbuttoni or Tamzin Robson.

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