Software Licences in M&A: Due Diligence on Software Assets Before Buying, Selling or Merging a Business (2026)

Quick answer

In a merger or acquisition (M&A), the software licence estate does NOT automatically "follow" the deal — but unresolved copyright violations DO. Deal structure decides everything: in a share deal the legal entity stays the same, so licences held in the entity's name usually remain valid; in an asset deal licences do not transfer by themselves; and in a merger under Điều 201, Luật Doanh nghiệp 2020 the surviving company receives ALL assets, rights AND obligations — including the merged company's unresolved copyright violations.

The legal basis in Vietnam: a computer program is protected as a literary work under Điều 22, Luật Sở hữu trí tuệ 50/2005/QH11. Transferring software rights must follow the statutory mechanisms of assignment of copyright (Điều 45) or licensing of use (Điều 47), and an assignment contract must be made in writing (Điều 46). After the deal, using software without permission is still punishable under Nghị định 341/2025/NĐ-CP (effective 15 Feb 2026, with per-violation fines reviewed and raised compared with the previous Nghị định 131/2013) — maximum fines of VND 250 million (individuals) / VND 500 million (organizations).

What to do: make software asset due diligence an official workstream of the transaction — an 8-item checklist (licence inventory & proof, deployment reconciliation, SaaS seats, in-house software, open-source components, industry-specific licences, pending disputes, account handover) — BEFORE signing, not after closing.

*Disclaimer: This article is for information only and is NOT legal advice. Legal document names are kept in Vietnamese (original). Citations were checked against original texts at the time of writing (see sources), but law can change and every transaction has its own facts. Consult your lawyers and advisers before any M&A decision.*

1. Why software licences are a blind spot in M&A deals

In a typical Vietnamese M&A transaction, the parties scrutinise finance, tax, land and labour — but the software estate is usually counted as mere "IT cost", not examined as a block of assets and legal obligations. Yet software sits on every desk: operating systems, office suites, accounting software, design tools, ERP, and dozens of SaaS subscriptions.

This blind spot creates two opposite risks. For the buyer: paying for an "asset" that turns out to be non-transferable (licences in the seller's name, anti-assignment clauses), or worse — inheriting legal exposure from unlicensed software the seller has been running. For the seller: a messy licence estate with missing paperwork gets deducted straight from the price, or becomes a last-minute renegotiation lever.

From 15 Feb 2026, administrative sanctions for copyright violations follow Nghị định 341/2025/NĐ-CP — maximum fines of VND 250 million (individuals) / VND 500 million (organizations), with per-violation fines reviewed and raised compared with the previous Nghị định 131/2013 — meaning "buying into" a business running unlicensed software is no longer a paperwork risk but a real-money risk, plus operational disruption when infringing software must be removed.

2. Deal structure decides the fate of licences: a comparison table

The first question of software due diligence is not "how many licences does the company have?" but "how is this deal structured?" — because the same software estate has a completely different legal fate in a share purchase, an asset purchase, or a merger.

Table 1 maps four common deal structures against the fate of licences and what the buyer must check. General caveat: many licence agreements/EULAs contain their own change-of-control or anti-assignment clauses — read each contract; never assume.

3. The Vietnamese legal framework: transferring licences lawfully

Software in M&A is governed by two branches of law at once: Luật Sở hữu trí tuệ (software is a copyright work — transfers must follow this law's mechanisms) and Luật Doanh nghiệp (deal structure decides what transfers automatically and what does not). Table 2 summarises the core provisions — all checked against original texts.

A commonly missed point: Điều 46 Luật SHTT requires a copyright assignment contract to be made in writing with mandatory content (full names and addresses of assignor and assignee, basis of assignment, price, payment method…). A handshake or a line in meeting minutes is not enough for software copyright to change hands.

4. The software asset due diligence checklist: 8 items

Table 3 is an 8-item checklist to add to the transaction's due diligence list. How to read it: each item has a question that must be answered with documents — verbal answers do not count; and a red flag — a signal to pause, renegotiate price, or require the seller to remediate before closing.

5. Sellers: clean up the licence estate before the data room opens

Due diligence runs both ways. A seller who prepares the software estate well avoids price erosion and shortens the deal. Five things to do before opening data to the buyer:

• Step 1 — Build the licence inventory (SAM inventory). Every commercial title and SaaS in use, licences/seats purchased, and matching paperwork line by line. This is the first document the buyer will request.
• Step 2 — Reconcile and fix gaps. Over-deployed? Buy more or uninstall. Excess seats? Cut them. Fix it BEFORE the buyer finds it — self-remediation is always cheaper than a price deduction.
• Step 3 — Gather chain-of-title documents for in-house code. Do employment/service contracts include copyright assignment clauses? If missing, sign written assignments under Điều 46 Luật SHTT with whoever wrote the code.
• Step 4 — Map change-of-control clauses. Flag which licence/SaaS contracts require notice or consent on an ownership change — prepare the vendor conversations in advance.
• Step 5 — Close pending disputes. Unanswered audit letters and open copyright complaints: resolve them or disclose them transparently with provisions — do not let the buyer discover them first.

6. After closing: 4 immediate tasks for the software estate

Signing is not the finish line. Four tasks to complete during post-closing integration:

• Update the licence holder. For licences/SaaS tied to a legal entity, complete name changes or re-sign contracts under the new entity — especially after an asset deal or merger.
• Consolidate the two licence estates. Post-merger, the two companies usually overlap (two M365 agreements, two accounting packages…) — reconcile to cut duplicates and renegotiate seats for the combined headcount.
• Restart the compliance cycle. Re-run the installs-versus-licences reconciliation across both sides' machines within the first 90 days — system integration is when rogue installs appear most easily.
• File the deal documents into the compliance records. Written assignment contracts (Điều 46), vendor consents, account handover minutes — this is the evidence that legitimises the new software estate if inspected under Nghị định 341/2025.

Frequently asked questions

1. If I buy a company, do its software licences automatically come with it? It depends on the structure. Share deal: the legal entity is unchanged, so licences in the entity's name usually continue — but check change-of-control clauses in each contract. Asset deal: licences do NOT transfer by themselves — they need a written assignment/licence under Điều 45–47 Luật SHTT, vendor consent, or new purchases.

2. Does the surviving company in a merger inherit the merged company's unlicensed-software risk? Under Điều 201, Luật Doanh nghiệp 2020, the surviving company receives all assets, rights, obligations and lawful interests of the merged company. Outstanding legal obligations — including exposure from unlicensed software — follow into the new entity; continued use can be sanctioned under Nghị định 341/2025/NĐ-CP (cap VND 500 million for organizations).

3. Must a software copyright assignment contract be in writing? Yes. Điều 46 Luật SHTT requires assignment contracts to be made in writing with mandatory content: both parties' full names and addresses, the basis of assignment, price and payment method… A verbal agreement or scattered emails is not legally safe.

4. What should be checked for in-house software in M&A? Two things: (1) chain of title — was the code written by employees within their duties, or by third parties? If outsourced, is there a written assignment?; (2) open-source components inside — which licence types and what obligations attach. Missing either one, the deal's "technology asset" value must be reassessed.

5. How long before a deal should a seller prepare the software estate? There is no universal number — it depends on the size and messiness of the estate. The safe principle: start as soon as a sale is contemplated, because tasks like signing supplementary assignment documents with code authors or fixing licence gaps require time with third parties.

6. Who should perform software due diligence? Combine three roles: lawyers (licence terms, transfer structure), internal IT or a SAM provider (reconciling actual deployment versus licences), and finance (pricing legalisation costs into the deal). Any single role alone misses things: lawyers cannot scan machines, IT cannot parse assignment clauses.

*This article is for reference and does not replace legal advice. Please check original texts (cov.gov.vn, vanban.chinhphu.vn) or consult a lawyer before making decisions.*

Conclusion

In M&A, software is the easiest asset class to miscount: it sits on every computer but not in the fixed-asset register; it carries huge operational value while the right to use it hangs on individual contract clauses. A disciplined software due diligence pass — 8 items, documents reconciled, transfer clauses read — costs far less than a last-minute price cut, post-closing licence repurchases, or inherited fines under Nghị định 341/2025.

Start with a simple question: if someone offered to buy your company tomorrow, could you produce the licence list with matching paperwork in one afternoon? If not, your software estate is already discounting your business value — even with no deal on the table.