Software and Database License Review

These guidelines are designed to help you review and revise software and database license agreements by raising certain legal issues and recommending measures to address them. The issues are raised through your interaction with our Checklist; additional explanations and background materials are available through hyperlinks. Once you are here, the only other things you will need are your contract and a careful reading of its terms. A sample contract is provided if you would like to practice.

Note, however, that you must also confirm with your institutional purchasing agent that all applicable procurement laws and regulations have been followed.

Step One

Review the Checklist. It will familiarize you with the legal issues you should focus on in the contract.

Issues include:

• Protecting expected uses

• Modes of access to the vendor's product

• Archiving (databases)

• Undesirable responsibility for or effects on third parties

• Indemnification

  • Vendor's indemnification
  • Customer's indemnification
    
    

• Caps on damages

• Miscellaneous

  • Statutes of limitation
  • Governing law
  • Termination
  • Automatic renewal
    
    

• Extenuating circumstances

Step Two

Look over your contract noting the sections most likely to focus on the issues identified in the Checklist.

• Protecting expected uses: Look in Copyright, Customer Obligations or Responsibilities and Rights

• Mode of access: Look in the Grant of License or an Attachment or both

• Archive rights: Probably will not be there; if you want this right, you will probably have to request it

• Undesirable responsibility for or effects on third parties: Look in Grant of License, Confidentiality or Customer Obligations, Responsibilities or Rights

• Indemnification: Look for sections headed Limited Warranty, Liabilities, Limitations on Liability or the like

  • Vendor's indemnification: Often missing
  • Customer's indemnification: If it is appropriate for us to indemnify the Vendor, our indemnification must be limited to the scope permitted by State law
    
    

• Caps on damages: Look for Limitations of Liability, Remedies

• Miscellaneous

  • Statutes of limitation: Miscellaneous or General
  • Governing law: Miscellaneous or General
  • Termination: Term and Termination
  • Automatic renewal: Term and Termination
    
    

• Extenuating circumstances: Most have to do with the price of the software, which is often in an attachment, or the source of data, which may be noted anywhere in the contract

Step Three

Read the contract, keeping these potential issues in mind.

Step Four

Identify sections for later editing that either contain troublesome langauge or that address an important issue but do not contain necessary provisions. When editing, it is best to put related items together, but sometimes you will have to create a new section to address an issue that doesn't seem to fit anywhere.

Step Five

Answer the questions in the Checklist in accordance with your reading of the contract. Submit the checklist form for analysis.

Step Six

Edit the contract provisions identified as problems in accordance with the Checklist recommendations.

Step Seven

Negotiate the recommended changes with your Vendor contact. In most instances, the recommendations are reasonable and should be acceptable to the Vendor. If, however, there are extenuating circumstances that might justify some deviation from normal expectations, it may be appropriate to accept a contract that would ordinarily be unacceptable. As a rule, always try to obtain the Vendor's agreement to terms that are recommended through use of the Checklist. If the Vendor refuses, then it is appropriate to consider extenuating circumstances.

Top | Search
It's All in the Fine Print | Copyright in the Library: Acquisition Under Contract
Crash Course in Copyright | Intellectual Property Section | Office of General Counsel

Comments to Intellectual Property
intellectualproperty@utsystem.edu
Last updated: October 1, 2001