1.1  CONCEPT OF SOFTWARE AND SOFTWARE CONTRACTS

Software is a collection of instructions and data, also known as programs, that allows computer to operate.[1] Software is designed to provide machine readable instructions to a computer processor.[2] According to Professor Hiroo software mean an information itself which is not capable of being owned but can only be copied and duplicated and speaking about software as an object of a sale it can mean three things.[3] Firstly, it can mean the copyright in the software, when the author of the software sells the software to a buyer . Secondly, it can mean a sale of the tangible medium in which the software is obtained and the buyer s is purchasing the property in the copy of the software, but not the copyright.  There are different types of software which should be kept separate. First the distinction between standard, bespoke and customized software must be made. Standard software is an off-the shelf product which meets the requirement of a large number of users.[4] To the contrary bespoke software is specifically made to meet the requirement of one particular user. Customized software is the option in the middle of the two former types as it is closely than the standard software would have. Secondly, there is a difference between system software and application software. System software organizes the way in which the hardware operates which is usually supplied by the hardware manufacturer as standard software. Application software performs the function required by the user and this type of software can be supplied to the user as all three of the above mentioned types of software.  The supreme Court of Louisiana case of South Central Telephone Co v Sidney J Barthemy took the opposite stand.[5]The Judges opinion was that software is not merely an idea or knowledge. The corporal body of software takes from massive strings of bits. The purchaser of computer software receives “a certain arrangement of matter” that makes the computer perform a desired function.

Software contract is binding agreement between the owner of a software product and a buyer.[6] The contract enables the buyer to use the software legally. With regard to this paper researcher discusses two types of software contracts these are custom software contract terms and custom software time line. Custom Software contract terms is a type of software contract which consists of terms such as lengh of warrant period, terms of the contract, what the vendor will provide and what you will provide. The terms of the custom software contract must be spelled out clearly and concisely. Create a list of deliverable that you expert from the project to ensure that the terms can be met. In the case of Dephi Software Ltd the Client Terms and Conditions of Trading[7]it was held that non-solicitation clause contained in terms and conditions of trade here is parallel to the non-complete clause  on the contracts for services. The authority is of the review that non-solicitation clause contained in the service contract protects the propriety interests of the applicant in its own business. The restrained here is identical to that contained in the contract for services. The authority is therefore of the view that the standard contract of terms and conditions of trading between Delphi and its Clients does not offend against section 4(1) of the Competition Act 1991.

      Another type is custom software timeline in this category the company should listen to your needs about when you want the project to be finished. Based on your needs, the company can tell you if the timeline you have proposed is reasonable and to expect. But such arrangement must be consider three  conditions; measuring by end and delivery or per milestone along the way, additing some extra time for control testing and quality assurance and providing the software company with the information needed will help your project stay with proposed timeline.

  1. LAWS GOVERNING SOFTWARE CONTRACTS

Various laws governing software contracts depend with the jurisdiction. The Convention on International Sale of Goods 1988, the Law of Contract Act [Cap. 345 R.E 2019]  (Tanzania), the Sale of Goods Act [Cap 214 R.E 2002] (Tanzania), The Uniform Computer Information Transaction Act (United State of America), the Sales of Goods Act (United Kingdom) and  Case Laws.

  1. LEGAL ISSUES SORROUNDING SOFTWARE CONTRACTS
    1. INTERNATIONAL LAW LEGAL ISSUES

Under the international contracts the growing of precedent on the area suggests that software should be considered as a “goods” in the context of the CISG regardless of whether the software is sold on a disk or downloaded from the internet. The leading case on the area is UsedSoft GmbH v Orade International Corpn[8] presented to the Court of Justice of the European Union. Oracle is developing and licensing software to customers who in exchange for a one-time fee receives a non-exclusive, non-transferable right to use the software for internal business purposes and for an unlimited period of time.[9] The  software is downloaded directly from the Oracle and selling them to a third party who downloads the software directly from Oracle website.[10] Oracle wanted to prevent this practice as they thought their intellectual property right in the software was being infringed and as the agreement specifically expressed that the licence was non transferable. The Court considered Oracle’s distribution right acquirer as the copy was sold to UsedSoft and not merely licences. It made no deference to the classification of a contract of sale whether the copy of the computer program was made available to the buyer by means of a tangible medium by download from the internet.

The case of Corporate Web Solutions V Dutch Company and Vendorlink B.V[11]issimilar ruling from a Dutch Court. The Canadian software company Corporate Web Solutions entered into an online software agreement with a Dutch buyer who downloaded the software program and later transferred it to company Vendorlink. As the CISG should be interpreted with regarded to its international character, the need to promote uniformity and the observance of good faith. Article 7 CISG and the Preamble, the Court argued that the term goods must be given a broad definition and thereby include intangibles. Thus the Convention was found to apply on software contained in a tangible medium as well as software downloaded from the internet. The following are the legal issues with regard to software contract

  1. Contract of Sale Issues

The Seller is obliged to deliver the goods to the buyer,[12] and the buyer must pay the price for the goods.[13] According to Article 42(1) CISG “the seller must deliver goods which are free from any right or claim of a third party based on industrial property or other intellectual property, of which at the time of the conclusion of the contract the seller knew or could not have been unaware”. For a transaction to be classified as  a contract of sale, property of the good must pass. The good has to be capable of being the subject of ownership before the property right can be transferred. Having the property over a good is equal to having absolute control. The good must usually be in the possession of the one wishing to exercise this control. One of the decisions on this area that dates furthest back is from 8th of February 1995 in the Regional Court. The seller was a manufacturer and sole owner of a computer program called Graphiplus. The program was installed at the buyer’s location. Afterwards, the contract was sent from the seller to the buyer and buyer stated that the contract was unacceptable. The buyer had in the meantime decided not to use the program. The program was simultaneously sent back to the seller. The seller argued that the buyer was obliged to pay the price for the program. The buyer pled that claim of the parties and they argued avoidance of the contract as a result of defective goods as well. The Court ruled in favour of the seller and pointed out that “according to the opinion of the Court, the sale of standard software for an agreed price is a contract of sale of goods within the meaning of Art 1 of CISG.

  1. Licence Issues

A contract of sale is when the buyer pays a price, receives the software and returns it. In the situation where the buyer makes several regular payments in order to use the software without retaining it after each payment, the contract is to be regarded as a licence agreement. The element separating the two situations is the intention of the parties to transfer property. The leading case of UsedSoft GmbH v Internatuional Corpn[14] it was held regard to the licence agreement “with the payment for services you receive, exclusively for your internal business purposes for an unlimited period a non-exclusive non-transferable user right free of charge for everything that Oracle develops and makes available to you on the basis of this agreement.

In the case of Mayor and Burgesses of the London Borough of Southwarkv IBMUK Limited[15] Judge Akenhead established principles as to whether the Sale of Goods Act applies in UK. The first, it has to consider whether there was an intention to transfer the property goods. Secondly, it has to be determined whether the goods where actually being sold. In this specific case IBM was supplying software to Southwark under the licence terms of Orchard. Even though these was a money consideration, there was no transfer of property of the property because Southware remained with Orchard which consequently gave Orchard the right to request South wark to return or destroy all copies, forms and parts of the software covered by the licence. Therefore, Southwark was never in absolute control and thus, the software was not sold.

  1. Seller Obligation Issue

The seller has an obligation to “deliver goods which are free from any right or claim of a third party based on industrial property or other intellectual property.[16]unless the buyer knows and accepts the third party‘s intellectual property right as part of the contract of sale between the seller and the buyer. The knowledge of additional shrink-wrap licence agreement gained upon the delivery would be a breach of contract as the seller would not have fulfilled the obligation in Art 42 CISG. Thus, an intellectual property right in a good such as software does not exclude CISG from governing the contract according to Article 42 of CISG, as long as the buyer has been made aware of the fact that good will be sold with the intellectual property right of the author still remaining.

  1. Mixed Contract Issue

The seller is obliged to deliver the goods and transfer the property in the good to the buyer as well as provide a form of service to the buyer.[17]Article 3(2) of CISG and afterwards moves to Art 3(1) CISG excludes contract for the supply of services from the convention ‘s sphere of application. This is determined by considering a preponderant part of the obligations in the contract to be the supply of services. Article 3(1) CISG includes contracts for goods to be manufactured. The reason behind this can be reffered to article 3(2) CISG, as contract for a good to be manufactured where the buyer supplies a large part of the materials, the preponderant part of the seller’s obligations would consist in the supply of a service.

  1. COMMON LAW LEGAL ISSUES

In UK as it was stated in the case of Mayor and Burgesses of the London Borough of Southwarkv IBMUK Limited[18] on the application of Sale of Goods Act, a “goods: was defined to mean a movable and tangible for the law to apply. Thus focus on tangibility when defining ‘good’ led to the understanding in most common law jurisdictions that software can only be subject of a sales contract when there is a tangible element in the contract.[19] Thus definition of goods is more inclusive than exclusive, software could fall under the scope of the Sale of Goods Act.

  1. Licence Auditing Issue

A unique legal issue for software companies is user licence enforcement. It occurs in a business context when a licensor wishes to sell additional software to a licensee population, or less frequently, to ensure compliance. As many software licensors do not have dedicated auditing personnel, the sales person is frequently the customer –facing individual who broaches the unsavory issue of compliance, to enhance his/her sales productivity. This is awkward position for the salesperson to be in and frequently strains customer relationships. One of the most proactive ways to solve this problem is to carefully draft the contract language during the initial licnece negotiations. It’s helpful to draft licensing language that includes an internal management escalation process so that if a disagreement about usage arises, explicit remedies exist to resolve it.[20]

  1. Control of Data and Confidentiality Issue

One of the major obstacles to the universal take-up of cloud computing is that service providers are basically asking consumers and businesses rely on their reputations as security policy. In the public cloud at least, where many contracts are simple ‘click though’ standard terms on a computer screen, the service provides currently purport to disclaim almost any liability for loss or corruption of data. It essential that customers review the terms of any cloud computing contract critically, to ensure that they fully understand what is being promised (or more likely, excluded) in terms of assurances about data security.[21] Reed Chiss contended that comport offers much greater security than traditional methods of storing and transferring data. Most of the data security than traditional methods of storing and transferring data. Most of the data security incidents than come in front of the information Commissioner’s Office in England have been to do with individuals taking work home and then losing an unencrypted laptop or memory stick.[22]

  1. Access to data

Customer need to consider what measures they should be putting in place internally to ensure that they can get hold their data if there are problems with the clod service.[23] Should customers make their own back-ups, say so, that they can readily reconstitute data if the service provider has a catastrophic failure? Is so, does that actually undermine the very value proposition that the cloud provider is offering.

  1. Business Continuity and Disaster Recovery

Associated with the question of data security generally, customers will want to be sure that the service provider has adequeate business continuity and disaster recovery plans in place. The private cloud model permits a high degree of customization, so customers can adopt a more traditional and tailored approach in terms of specifying what the service provider should be doing by way approach in terms of specifying what the service provider should be doing by way of continuity. Conversely, in the public cloud there will be a limited degree to which customers can influence the service provider’s business continuity and disaster recovery, but it would nevertheless be sensible to investigate this as part of due diligence.

  1. Data Protection and Privacy Issue

Data protection is predictably a major issue if personal data is going to be put into the cloud.[24]Customers accordingly need to ensure that the processing of personal data by the cloud service provider is done under a written agreement and that the service provider undertakes to do so only in accordance with the data controller’s instructions and to ensure that appropriate technical and organizational measures are taken to keep the personal data secure. Few standard terms that are offered online by public cloud service providers include any such provisions or if they do, they undermine the effect by purporting to exclude any liability for loss or corruption of or unauthorized access to, personal data.

  1. CIVIL LAW LEGAL ISSUES

The courts in the US are uncertain about to classify software. The Supreme  Court of Lousiana in the case of South Central Bell Telephone Co vSidney J Batheleny did not agree on Sir Ian Glidewell’s approach to tangibility. They though it was mistake a distinction between software and hardware, because the definition of tangibility should not be limited to what can only be perceived by the unaided senses. As software in their opinion has corporal body consisting of bits, it something that can be perceived by our senses. Thus software can be considered as tangible good. The Uniform Computer Information Transaction Act (UCITA)in the US attempted to introduce a separate uniform Computer Information Transaction Act (UCITA) in the US attempted to introduce a separate uniform legal regime for “computer information  transactions” as “agreement or the performance of it to create, modify, transferor licence computer information or informational rights in computer information”[25] Thus the UCITA is applicable to agreements regarding e.g photos, books, and also software in electronic, computer-readable form. The UCITA can therefore not be used as a precise guidelines on how to handle the issue though an international uniform law.

  1. TANZANIA LEGAL ISSUES

Tanzania as part of common law follows the decisions of England whose has the same position as stated in the case of Mayor and Burgesses of the London Borough of Southwarkv IBMUK Limited[26] on the application of Sales of Goods Act. However in Tanzania there is legislation known as Sales of Goods Act[27] and other like the Electronic Transactions Act and the Law of Contract Act both of them when interpreted in manner that will cover the software contract. In the case IBM Tanzania Limited v Sunheralex Consulting Co.Ltd[28] in this case brief fact that from 2016 the plantiff and defendant entered into business relationship to supplied the defendant hardware and software support services. Nangela J applied the provisions under the Law of Contract Act to handle the dispute. The provision of the Law of Contract has provision for the online contract which was brought by the consequential amendment by the Electronic Transaction Act[29] whose now the Act has been revised to incorporate the amendment. The following are the legal issue here is under the Electronic Transaction Act excludes the software transaction where consumer has already paid for the goods and has not yet supplied for the goods. Section 30(5)(g) provides that “ This section shall not apply to electronic transactions where audio or video recording or computer software were downloaded or unsealed by the consumer. Therefore it possible to apply provision under the Law of Contract and Sales of Goods Act

  1. JUDICIAL PROTECTION AGAINST DEFECTIVE SOFTWARE

1.4.1 Protection for the License Agreement under Convention on International Sales of Goods

Under international aspects the CISG is protecting the buyer from having delivered goods that does not conform with what was agreed upon in the contract.[30]As the CISG does not apply on a licence agreement, the buyer will not have the advantage of such protection. However, court will look upon the licence agreement as long as both parties agree.[31]

1.4.2 Protection for Breach of Contract under the Law of Contract Act [Cap 345 R.E 2019]

Tanzania jurisdiction has the provision governed the breach of contract, remedies provides under section 73 (1) of the Law of Contract Act, provides

“Where a contract has been broken, the party who suffer buy such breach is entitled to receive from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew , when they made the contract to be likely to result from the breach of it.”It possible for the consumer to use this provision where the goods supplied is defective. In the case of IBM Tanzania Limited v Sunheralex Consulting Co.Ltd[32]

1.4.3 Recovery under the Uniform Commercial Code

Even in the absence of a negotiated agreement between manufacturer and consumer, U.C.C. Article 2 provides recovery for defective merchandize under a breach of warranty theory. Such a theory may address the express warranty includes with the software, or the implied warranties of merchantality and fitness for   particular purpose. If the U.C.C applies to consumer software, damages for breach of express warranty include the difference in value between the defective and warranted software plus incidental and consequential damages and limitations on remedies. The code however, does not permit on consequential damages. Section 2 -719 makes limitation of consequential damages prima facie unconscionable in the case of consumer goods. If follows that a court may not limit consequential damages when such damages result from defective software that serves personal, family or household functions. Code remedies differentiate between consequential damages arising from business and personal use of non conforming merchandize.

            The implied warranty provision of the U.C.C provides the software consumer with broader range of recovery than that available under an express warranty theory. The U.C.C imposes implied warranties of merchantability protects consumer injured by defective software. A claim based on fitness requires a seller to have actual knowledge of the particular purpose of the consumer’s software. The mode of distribution of consumer software effectively prohibits the acquisition of actual knowledge. Merchantability, on the other hand, merely requires a manufacturer’s perception of ordinary or reasonable uses of software. Courts seem more willing to imply this lower standard of knowledge in the case of consumer goods. Warranty disclaimer and limitations, however may foreclose recovery under an implied warranty of merchantability theory.

1.4.4 Negligence Theories of Recovery

            The implied warranty of merchantability, the most efficacious U.C.C remedy for injuries arising from defective computer software, addresses a limited class of consumers.[33] Not only is the scope of protection narrow, but also recovery of damages is limited to be value of the software and in special cases, consequential damages.[34] The theory of implied warranty ignores a manufacturer’s possible negligence in causing the program’s defect.[35]

            Manufacturer of consumer software owes a duty of care of least to the purchaser of the software. It is difficult, however, to define this standard. No state currently requires professional licensing of programmers. Dispite the similarity of computer programming to other professional specialties, courts hesitate to impose upon programmers a duty of care greater than that of an expert layman. In the case of Chatlos Systems, Inc. v National Cah Register Corp[36] the court refused to create a new tort of “computer malpractice” that would impose an elevated standard of care on the programming staff of a large and respected computer services corporation. The Chatlos court stated, in dictum, that the technological complexity of computer programming does not necessary imply an elevated standard of responsibility. In absence of standard care, courts must judge programmer competency according to individual skill and experience. Plantiffs who rely on this standard in negligence actions will find this standard deficient for two reasons. First, it forces an investigation of industry custom. Second, it can result in the imposition only of a minimum standard of care upon a computer programmer defendant.

1.4.5 Strictly Liability Protection

This doctrine presents courts with a powerful mechanism for balancing the risks and benefits of certain activities.[37] The balancing does not consider the fault of the parties involved in these activities. Strict liability may exist even in instances in which the defendant exercises all possible care.[38] Modern courts assign liability for unusual activities to the party that controls and benefits from the activities. The application of doctrine of strict liability to computer software involves a delicate balancing of costs to both the manufacturer and consumer courts must weigh many criteria before assigning such liability.[39] Three central criteria guide this judicial balancing: manufacturer’s control over the design and distribution of products, the difficulty of an injured consumer in obtaining legal redress under contract or negligence law, and the feasibility of equitably distributing the costs of strict liability though increased prices or insurance. Only the third criterion, the feasibility of cost-spreading creates an obstacles to the application of strict liability to defective consumer software. Only the third criterion, the feasibility of cost-spreading creates an obstacles to the application of strict liability to defective consumer software. Few, if any, software manufacturers or distributors have the requisite capital to act as self-insurers. More important products liability insurance for computer software remains elusive.[40]

            Application of the doctrine of strict liability to economic and physical injuries resulting from defective software necessary will impose immediate costs upon both the manufacturer and consumer. The long-term effects of this application appear salubrious. Judicial recognition of the doctrine does not create new liability; rather, it shifts the liability currently borne by consumer. This shift can bolster consumer confidence in state of the art technology.

            1.4.6 Declaimer Clause

Under common law the disclaimer clauses are often added to contracts by negotiating parties in an attempt to avoid or limit obligations.[41] Express warrant are difficult to disclaim, however, if pertain to the finesses of the software for its intended purpose. In the case of Mackenzie Pattern & Co v British Oliventi Ltd an  integration clause excluded all other liabilities obligations, warranties and conditions.[42]Applying the supplier to exclude liability for breach of contract. The reasonableness test trumpeted the supplier’s attempted disclaimer using an integration clause.

            Under Civil law does not require express warranties to be contained within the four corners of the contract; they may be oral.[43] Express warranties may be created by any affirmation of fact, a promise, or a description  of goods which becomes part of bargain; this may include affirmations made in brochures or in demonstrations. In the case of USM v Arthur D Little Systems Inc the supplier a computer system made an express warranty that the system would have no design defects and would have acceptable response time. The actual response time, however, was substantially greater than the time promised by the supplier and the express warranty was held to have been breached.

1.4.6 Parole Evidence Rule

            The parole evidence rule may prevent the admission of any of supplier ‘s representations made in a prior agreement or in a contemporaneous oral agreement. In Jaskey Finance & Leasing v Display Data Corp, the defendant sold a computer to the plaintiff. The seller had orally represented in advertisements that the computer and software would only require routine maintenance and was suitable for plantiff’s type of business. The written sales contract, however, did not make these representations. At trial, the court ruled that the oral evidence was inadmissible, holding that admitting the evidence would violate the parole evidence rule.

1.4.7 UCITA’s Treatment of Express Warranties

An express warranty is a guarantee by a seller to provide replacement or repairs for a faulty product or service within a specified time period after it was purchased. Such warranties are printed on a product’s packaging or are offered as an option to the buyer. Buyers rely on the guarantees and sometimes purchase products because of them.[44] UCITA allows a licensor to create an express warranty to a license with an affirmation or promise which may be part of an advertisement.[45] Samples, models or demonstrations may also become the basis of express warranties.[46] Language pertaining to an express warranty and language attempting to disclaim an express warranty must be construed, whenever reasonable, as consistent with each other.  

1.4.8 Reasonable Care and Skill Required

The lack of an established duty of care does not prevent a customer from bringing a claim in negligence against the software developer, but it does increase the burden of making such a claim.  The customer would have to satisfy the Court that the software developer owed them a duty of care in these specific circumstances.  This is often known as a “novel duty of care”.

Courts have been reluctant to recognise the existence of a duty of care in such cases of “pure economic loss”, due to considerations of public policy and fear of “opening the floodgates” and imposing liability in an indeterminate amount, to an indeterminate class of persons.  Requiring some damage to the plaintiff’s person or to tangible property serves to limit the liability of potential defendants by constraining claims to a limited and ascertainable class of plaintiffs.

Nevertheless, there are arguments as to why the “floodgates” principle ought not to apply in the example situation.[47]  These include that the class of persons to whom the duty is owed would only be the customers, and that where the services provided to those customers are for economic matters, there is no reason in principle why the software developer should not be liable for economic losses which result.[48] Section 13 of the Supply of Goods and Services Act of 1982 (“1982 Act”) provides that a business supplying a service must do so “with reasonable care and skill. ”63 This is an implied warranty, but it is subject to a reasonableness test. In Salvage Association, the court found that the supplier had the obligation to carry out its service with reasonable care and skill.

1.4.9 Software Quality must be Satisfactory

Software Quality is the degree to which the correct software produced. Quality software is reasonably bug or defects free, delivered on time and within budget, meets requirements, expectations, and maintainable.[49] Standard ISO 8402-1986 defines quality as “the totality of characteristics and features of a product or service that bears its ability to implied needs or Satisfy stated.” In the original view, quality is hard to describe but can be recognized if it is present.[50] In 1994, the Sales of Goods Act of 1979 and the 1982 Act were amended to require the quality of software provided to be “satisfactory., The following factors should be taken into account when determining the quality of goods: fitness for purposes for which the goods are commonly supplied, appearance and finish, freedom from minor defects, safety, and

durability.

1.4.10 Fitness for intended Purpose

In St. Albans City, the court held that, in the contract, there was an implied term that a software program would be reasonably fit for its intended purpose because the supplier knew of the necessity of the program to achieve a specific function. ° In Saphena Computing Ltd. v. Allied Collection Agencies Ltd the court held that the contracts contained a term of implied fitness for the intended puTose because the buyer had communicated the purpose to the seller.  However, the court also recognized that it is not a breach of warranty per se to deliver software with defects; rather, a reasonable period of time must be given to cure the defects. Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose. In other words, unless properly disclaimed in the contract, an implied warranty of fitness for particular purpose arises when: (1) the seller knows, or should know, buyer’s purpose for the goods; and (2) the seller knows, or should know, that buyer is relying on seller to determine what the buyer needs for that purpose. Imagine that a customer walks into a watch store, and tells the proprietor that he intends to go scuba diving and needs a watch to monitor his dive time. The customer then asks the proprietor to recommend a watch for the trip. In such circumstances, any recommendation by the proprietor almost certainly will be deemed to include a warranty that the watch is waterproof and otherwise suitable for scuba diving. Second, the seller may expressly warrant in the contract that the goods will be fit for the buyer’s intended purpose. In such cases, the seller should take care to make sure that it really does know of buyer’s purpose and that the goods are, in fact, fit for that purpose.[51] Unlike in the case of implied warranties, lack of knowledge generally does not allow the seller to avoid an express warranty that the goods are fit for buyer’s purpose. In the context of business-to-business sales in the manufacturing supply chain, a manufacturer may ask, what is the particular purpose for which its goods must be fit? The answer is highly situational.  In some cases, the answer may be relatively simple. Similar to the scuba diving example above, a buyer may identify generally the use to which it intends to put the goods. For example, a buyer may ask a seller to supply a widget for use in a particular application.

1.5 CONCLUSION

Generally, the work discussed the various legal issues from different jurisdiction. In comparison with Tanzania versus United Kingdom and United State of America is that legislation from the said are expressly and once the gap exist on the said legislation, courts make initiative to cover in order to protect software contract. In the Electronic Transactions Act prohibits for the protection of consumer incase the contracts has been made. Also the Sale of Goods Act of Tanzania has weakness in the protection of consumer of software. Thus researcher call for the government to amend and insert new provision that protect the consumer of software.

BIBLIOGRAPHY

READINGS

C.Reed, Computer Law, Oxford University Press, New York 2011

C.Reed, Internet Law, Text Materials,Butterworths, London (2001)

Garner. B. A., Black’s Law Dictionary, Thomson & West Publisher, 20048

K.Cronin, Consumer Remedies for Defective Computer Software, V 28:273, Journal of Urban and Contemporary Law, 273, 1985

Llord, Information Technology Law, Butterworth, London 2003)

M.Edwards, Understanding Computer Contracts Butterworth, London (2000)

S.Blythe, Contractual Liability of Suppliers of Defective Software: A Comparison of the Law of the United Kingdom and United States, V.26, Northwestern Journal of International La &Business, Issue 1 , 2005

S. Hiroo, The Applicability and Non Applicability of the CISG to software Transactions, Simmonds & Hill Publishing, 2008

LEGISLATION

The Convention on International Sale of Goods 1988,

The Electronic Transaction Act, Act No.13 of 2015

The Law of Contract Act [Cap. 345 R.E 2019]  (Tanzania),

The Sale of Goods Act [Cap 214 R.E 2002] (Tanzania),

The Sales of Goods Act (United Kingdom)

The Sales of Goods Act [Cap 218 R.E 2002]

The Uniform Computer Information Transaction Act (United State of America),

CASES

Chatlos Systems, Inc. v National Cah Register Corp 479 F Supp. 738 (D.N.J 1979)

Corporate Web Solutions V Dutch Company and Vendorlink B.V, Rechbank Midden, Netherlands, 25 March 2015

Dephi Software Ltd the Client Terms and Conditions of Trading [1998] IECA 499

IBM Tanzania Limited v Sunheralex Consulting Co.Ltd Civil Apeal No.23 of 2020, High Court (Commercial Division) at Dar es Salaam

Mackenzie Pattern & Co v British Oliventi Ltd (Q.B 11 Jan 1984) Unreported

Mayor and Burgesses of the London Borough of Southwark v IBMUK Limited [2011]EWHC 549

South Central Bell Telrphone Co. v Sidney J. Batheleny, Supreme Court of Louisiana, 17 October

St Alabans City and District Coucil v International Computers Ltd, Court of Appeal, 26 July 1996, pp 11-12

WEBSITES

https://corporatefinanceinstitute.com/resources/knowledge/deals/express-warranty/
https://www.dundaslawyers.com.au/are-software-developers-liable-for-defects-in-their-software/

https://www.xenonstack.com/insights/what-is-software-quality (accessed 22 March 2022)

www. martinlalow.com (accessed 25th February 2022)

[1] Garner. B. A., Black’s Law Dictionary, Thomson & West Publisher, 2004, 8767

[2] Ibid

[3] S. Hiroo, The Applicability and Non Applicability of the CISG to software Transactions, Simmonds & Hill Publishing, 2008

[4] Ibid

[5] South Central Bell Telrphone Co. v Sidney J. Batheleny, Supreme Court of Louisiana, 17 October 1994

[6] Ibid

[7] Dephi Software Ltd the Client Terms and Conditions of Trading [1998] IECA 499

[8] UsedSoft GmbH v Orade International Corpn

[9] Idem

[10] Idem

[11] Corporate Web Solutions V Dutch Company and Vendorlink B.V, Rechbank Midden, Netherlands, 25 March 2015

[12] Article 30 of CISG

[13] Art 53 CISG

[14] C.Reed, Computer Law, Oxford University Press, New York 2011, 243

[15]Mayor and Burgesses of the London Borough of Southwark v IBMUK Limited [2011]EWHC 549

[16] Article 42 CISG

[17] Article3 of CISG

[18] Mayor and Burgesses of the London Borough of Southwark v IBMUK Limited [2011]EWHC 549

[19] St Alabans City and District Coucil v International Computers Ltd, Court of Appeal, 26 July 1996, pp 11-12

[20] www. martinlalow.com (accessed 25th February 2022)

[21] C.Reed, Computer Law, Oxford University Press, New York 2011, 44

[22] Ibid

[23] Ibid

[24] South Central Bell Telephone Co (Supranote

[25] M.Edwards, Understanding Computer Contracts Butterworth, London (2000), 85

[26] Supranote

[27] Sales of Goods Act [Cap 218 R.E 2002]

[28] IBM Tanzania Limited v Sunheralex Consulting Co.Ltd , Commercial Case No.9 of 2020, High Court of Tanzania (Commercial Division) at Dar es Salaam

[29] The Electronic Transaction Act, Act No.13 of 2015

[30] Article 35 of CISG

[31] K.Cronin, Consumer Remedies for Defective Computer Software, V 28:273, Journal of Urban and Contemporary Law, 273, 1985, 67

[32] IBM Tanzania Limited v Sunheralex Consulting Co.Ltd Civil Apeal No.23 of 2020, High Court (Commercial Division) at Dar es Salaam

[33] K.Cronin, Consumer Remedies for Defective Computer Software, V 28:273, Journal of Urban and Contemporary Law, 273, 1985 , 64

[34] Ibid

[35] Ibid

[36] Chatlos Systems, Inc. v National Cah Register Corp 479 F Supp. 738 (D.N.J 1979)

[37] K.Cronin, Consumer Remedies for Defective Computer Software, V 28:273, Journal of Urban and Contemporary Law, 273, 1985, 76

[38] Ibid

[39] Ibid

[40] Ibid

[41] S.Blythe, Contractual Liability of Suppliers of Defective Software: A Comparison of the Law of the United Kingdom and United States, V.26, Northwestern Journal of International La &Business, Issue 1 , 2005

[42] Mackenzie Pattern & Co v British Oliventi Ltd (Q.B 11 Jan 1984) Unreported

[43] Ibid

[44] https://corporatefinanceinstitute.com/resources/knowledge/deals/express-warranty/ (accassed 22nd March 2022)

[45] S .Blythe, Contractual Liability of Suppliers of Defective Software: A Comparison of the Law of the United Kingdom and United States, V.26, Northwestern Journal of International La &Business, Issue 1 , 2005

[46] Ibid

[47] Ibid

[48]https://www.dundaslawyers.com.au/are-software-developers-liable-for-defects-in-their-software/ (accessed 22nd March 2022)

[49] Ibid

[50] https://www.xenonstack.com/insights/what-is-software-quality (accessed 22 March 2022)

[51] Ibid