In today’s digital era probably everybody of us knows that source code of the Open Source Software (OSS) is publicly available. A good example is GitHub platform. And most of us know where to find such code’s conditions of use. However, what will happen if we need development of new features or qualified and effective support after the deployment? What type of contracts will we receive for review and signing as a customer?
Evolveum is a vendor (developer and support provider) of Open Source Identity & Organization Management and Governance Platform (software) called midPoint. As Evolveum’s corporate counsel, I am drafting, reviewing and negotiating the whole series of IT contracts with our partners and customers from all over the world on day-by-day basis. Being a lawyer surrounded by developers and engineers, I found myself at the intersection of two worlds: the world of open source coding and the world of software law.
I am going to guide you through the technical contracts known under abbreviations MSA and SOW, their purpose and meaning, contractual treatment of technical support on various levels and what to pay attention to when concluding these contracts.
Starting points
Before getting any further I would like to introduce you three key basics, which we need to take into consideration:
- OSS is primarily a legal model of cooperation and trade with intellectual property.
- As Jamie Zawinsky said: ”OSS is free only if your time has no value.“
- Lindgerg’s analogy of OSS and Credit Unions (as opposed to proprietary software and banks), which is based on the principle of cooperation that includes personal involvement and active membership; and on principle of exchange as the OSS customer gets software benefits while paying only part of its total price.
Example
Let’s have a closer look at GitHub. Here we can find source code of the software, which we are interested in as a customer. Terms and conditions of its use are projected in attached open source license herein. That means, both – the source code and conditions of its use – are, in general, freely available.
In situations when we want development of software’s new features or we hit a bug, we come to realization that we need qualified and effective support from the vendor themselves. Same as in case of other software types, the vendor sends us contract about the professional IT services for our review. This contract usually consists of two parts: one Master Service Agreement (MSA) and at least one Statement of Work (SOW), mostly set of several SOWs.
Master Service Agreement (MSA)
Customer and vendor may face situations when some types of contractual relationships are repeating, more or less regularly. In such cases, signing of Master Service Agreement (MSA) is appropriate step as it refers to long-term cooperation. It is the basic part of contract for professional IT services and it is usually concluded for an indefinite period.
MSA represents the fundamental legal framework of particular relationships, that may arise mostly in the future, reflecting needs of the customer. In more details, MSA covers mutually agreed flow of intellectual property rights, payment conditions, responsibility duties for defects and damage, termination terms, etc.
From my experience, contractual documentation or simply paper work in IT field is often regarded just as formality. I would like to point out the significance of MSA, as this contract minimizes risk the parties fail to cover some important situations.
It is useful to know, that MSA usually contains provisions on confidentiality, too. If customer previously signed separate contract of Non-Disclosure Agreement (NDA), its validity is terminated at the moment MSA is signed by both parties. Keeping this in mind, new provisions should be more precise or stricter.
In general, we could say, that every Statement of Work (SOW) is integrated to MSA, forming one unit together – one entire contract. I will write about SOW and my experience with this contract from practice in the next article.
Resources
Tollen, David W. (2010): The tech contracts handbook: software licenses and technology services agreements for businesspeople and lawyers. ABA Publishing, ISBN: 978-1-60442-982-4.
Overly, Michael R.; Karlyn, Matthew A. (2013): A guide to IT contracting: checklists, tools and techniques. CRC Press, ISBN: 978-1-4398-7657-2.
Lindberg, Van (2008): Intellectual Property and Open Source: A practical guide to protecting code. O’Reilly Media, Inc., ISBN: 978-0-596-51796-0.
Meeker, Heather (2015-2017): Open Source for business: A practical guide to Open Source Software licensing. ISBN: 978-1-54473764-5.
Fogel, Karl (2005-2010): Tvorba Open Source Softwaru: Jak řídit úspěšný projekt svobodného softwaru. Edice CZ.NIC, ISBN: 978-80-904248-5-2.