Software License Agreements. A. Shrink/Click-wrap License Agreement Regardless of any other provision or other license terms which may be issued by Vendor after the effective date of this Contract, and irrespective of whether any such provisions have been proposed prior to or after the issuance of a Purchase Order for products licensed under this Contract, or the fact that such other agreement may be affixed to or accompany software upon delivery (shrink-wrap), the terms and conditions set forth in this Contract shall supersede and govern the license terms between Customers and Vendor. It is the Customer’s responsibility to read the Shrink/Click-wrap License Agreement and determine if the Customer accepts the license terms as amended by this Contract. If the Customer does not agree with the license terms, Customer shall be responsible for negotiating with the reseller to obtain additional changes in the Shrink/Click-wrap License Agreement language from the software publisher.
Software License Agreements. 2.1.2. Structured Training Course Service Level Agreement (SLA) and Supplementary Terms & Conditions
Software License Agreements. 1:6.5 A common vendor complaint is that some customers expect unreasonably long or even perpetual warranties regarding software performance. As noted above, this is not the industry standard. In addition, many vendor business models include the provision of software maintenance for a fee. The best practice is therefore to have the end of a warranty period be coincident with the commencement of any maintenance period. The customer should pay particular attention to the specifics of the software performance warranties, as they will be the primary focus if the software does not perform as expected and customer desires to terminate the agreement, get a refund, or the like.
Software License Agreements. 1:2.2 A vendor-oriented form of a Software License Agreement follows this chapter as Appendix 1A, and a form of a Product Evaluation Agreement follows as Appendix 1B.
Software License Agreements. 1:9.2 damages for breach of contract are not available unless the aggrieved party shows the damages were actually caused by the failure to perform in accordance with the contract23 and were foreseeable,24 and that the aggrieved party attempted appropriate mitigation.25 In addition, no contract damages are recoverable beyond the amounts that are proven with reasonable certainty.26
Software License Agreements. 1:11 § 1:11 Licensee Transferability Rights 3rd Proofs 02/01/18 Most contract rights are transferable, absent an express anti- transfer prohibition in the agreement (or if the transfer would materi- ally burden the other party or if public policy dictates otherwise).39 Additionally, in a statutory merger, the contract rights of the parties generally are deemed automatically vested in the surviving entity without the need for an assignment. Inbound IP license rights, however, are sometimes treated differently under the applicable federal (U.S.) common law.39.1 The first difference is that the federal courts have consistently held that the licensee position in a nonexclusive patent or copyright license is by default (that is, when silent as to transferability) not transfer- able by the licensee.39.2 This would, of course, also be the result if the agreement contained an anti-transfer or anti-assignment provision.40 The second difference, and probably the more significant for practitioners, is that an inbound nonexclusive license agreement (unlike most other contracts) might be deemed transferred pursuant to a merger in a manner that would trigger applicable anti-transfer restrictions (either explicit restrictions in the agreement or the default prohibition when the agreement is silent). The licensee, therefore, would need permission from its licensor prior to the consummation of a merger to avoid an impermissible transfer of the license. A recent Sixth Circuit case provides a good illustration. In Cincom Systems, Inc. v. Novelis Corp.,41 the technology vendor, Cincom Systems, licensed its software to Alcan Rolled Products Division (“Alcan Ohio”) in 1989. In 2003, Alcan Ohio was merged into an affiliate, and after further internal corporate restructuring, the surviv- ing entity became known as Novelis. Throughout these transactions, the software remained on the same computers in the same physical location. Once Cincom Systems learned of these corporate changes, it sued for breach and copyright infringement. Novelis responded, in part, by asserting there was no transfer of the license because the applicable merger statute provided that “the surviving or new entity 39. See generally RESTATEMENT (SECOND) OF CONTRACTS §§ 316–43 (1981); U.C.C. § 2-210.
Software License Agreements. 1:5 and the prudent vendor will therefore want to prohibit them by contract.5 Notwithstanding a contract prohibition to the contrary, in certain jurisdictions decompiling the software will be permitted so that a party may obtain information necessary to render the software interoperable with other software.6 § 1:4 Taxes The tax treatment of software and related services will vary by state and local jurisdictions (this topic is discussed in detail in chapter 17). Absent the rare agreement to the contrary, the license agreement should include a provision stating that the software pricing does not include local, state, or federal sales, use, value-added, or other taxes based on the licenses or services provided under the agreement or the customer ’s use. The vendor will also want the tax provision to include an affirmative statement that the customer will pay all taxes that may be imposed upon the vendor or the customer, except for income or similar taxes imposed on the vendor. This provision should further state that the customer will be invoiced for, and the customer will pay, any such taxes if the vendor is required to pay them on the customer ’s behalf.
Software License Agreements. All software purchased or licensed by YSU must be ADA Compliant.
Software License Agreements. GEMS acknowledges and agrees that, in cases where the Software is distributed as a stand-alone item and not integrated into a GEMS Product, it will use all commercially reasonable efforts to obtain agreement from its R2 Product customers to a commercially reasonable software license agreement (each a "Software License Agreement"), such as the form provided in Exhibit C (with such changes as the customer may reasonably request and R2 approves). GEMS shall distribute Software in such cases only to end user customers who have entered into a Software License Agreement in respect of such Software, unless R2 otherwise agrees.
Software License Agreements. 1:12.1 § 1:12 Bankruptcy-Related Issues The bankruptcy of a party to a license agreement can have a profound impact on the parties to that agreement. Counsel need to have a basic understanding of how license agreements are treated in bankruptcy and to draft accordingly. The discussion that follows is only a summary of selected bankruptcy-related issues, and one should always consult bankruptcy practitioners whenever appropriate. It is safe to say, however, that in general vendors will tend to want to prohibit the customer’s assignment in a bankruptcy and should therefore draft to emphasize the personal nature of the license agreement and (if possible) the unique aspects of the licensee. Customers will generally want the right to assign (or at least assume) in a bankruptcy and should therefore try to include explicit permissions in the agreement.
