Every year, organisations across Africa spend millions commissioning software they never truly own, cannot maintain and struggle to support when things go wrong.
Whether you are a government ministry digitising public services or a private enterprise building a customer platform, your contract with your software developer is just as important as the software itself.
Yet too many leaders treat it as a formality, a document to be signed quickly so the “real work” can begin.
This is a costly mistake. A poorly structured software development contract can leave your organisation locked into a single vendor, exposed to operational risk, and without recourse when things inevitably change.
Here are the critical areas every business and government leader should scrutinise before putting pen to paper.
WHO OWNS WHAT YOU PAID FOR?
This is the single most overlooked clause in software contracts.
Many organisations assume that because they funded the development, they own the resulting software.
That assumption is often wrong.
Unless the contract explicitly assigns intellectual property rights to your organisation, the developer may retain ownership of the source code, the architecture, and even the data models.
This means you could end up paying licence fees for software you commissioned, or find yourself unable to switch providers without starting from scratch.
Your contract must clearly state who owns the source code, the documentation, and any custom components built specifically for your organisation.
Insist on full IP assignment or, at minimum, an irrevocable, perpetual licence that allows you to modify and maintain the software independently.
DEFINING ‘GOOD ENOUGH’
A service level agreement (SLA), sets measurable standards for performance, availability, and response times.
Without one, you have no contractual basis for holding your developer accountable when the system goes down on a Friday afternoon or response times slow to a crawl during peak usage.
A robust SLA should specify uptime guarantees (typically 99.5% or higher for critical systems), maximum response times for different severity levels of issues, and clear penalties or remedies when these targets are missed.
Vague commitments like “best effort support” are meaningless. If it is not measurable, it is not enforceable.
The day your software launches is not the finish line, it is the starting line.
Software requires ongoing maintenance: security patches, bug fixes, compatibility updates, and enhancements as your business evolves.
Your contract should clearly define what support is included post-delivery and for how long.
Will the developer provide a warranty period for defect resolution? What are the costs for ongoing maintenance after the warranty expires?
Are knowledge transfer sessions and technical documentation included so that your internal team, or a future vendor, can take over?
Without these provisions, you risk being permanently dependent on a single developer who may increase fees, deprioritise your needs, or simply disappear.
PROTECTION
A software escrow agreement is one of the most powerful yet underutilised protections available to software buyers.
A neutral third party holds a copy of the software’s source code, documentation, and build instructions.
If the developer ceases to trade, breaches the contract, or fails to provide agreed support, the escrow agent releases these materials to your organisation, allowing you to maintain and develop the software independently.
For any mission-critical system, particularly in the government, a software escrow agreement should be non-negotiable.
It is the difference between a temporary inconvenience and an operational catastrophe.
VENDOR LOCK-IN
One of the most expensive traps in software procurement is vendor lock-in, a situation where your systems are built on proprietary formats, protocols, or frameworks that only one supplier can work with.
Open standards are the antidote.
Your contract should require that the software is developed using widely adopted, non-proprietary standards for data formats, application programming interfaces and integration protocols.
This means your data can be exported cleanly, your systems can communicate with other platforms, and a different developer can step in to extend or maintain the solution without having to reverse-engineer a closed ecosystem.
For the government in particular, mandating open standards is not merely a technical preference but a matter of public interest.
Citizens’ data and public services should never be held hostage by a single vendor’s proprietary technology.
Insist on open, documented interfaces and standard data formats as a contractual requirement, not an afterthought.
THE BOTTOM LINE
Software development contracts are not merely administrative. They are strategic instruments that determine whether your digital investment becomes a lasting asset or an expensive liability.
Before you sign, ensure that your intellectual property is protected, your service expectations are codified, your support arrangements are sustainable, your continuity is guaranteed through escrow, and your systems are built on open standards.
The technology may be complex, but the principle is simple: if it is not in the contract, it does not exist.
- Job Angula is a technology risk and governance professional, author of ‘Digital Namibia: From Paper to Progress’; www.angulaconsulting.com
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