Brief description: Checklist is for a Software License Agreement where the Licensee wishes to use the Licensor’s software products in its business.
Software License Agreement.
Source: Georg F. Schröder „Softwareverträge. Lizenzierung, Erstellung und Kauf“, Beck Juristischer Verlag
- Identity of the Parties
- Names (Licensee and Licensor).
- Legal form of the entity.
- Registration number.
- Recitals (“Whereas” clauses)
- Short information about the Licensee and Licensor.
- Purpose for entering into the software license agreement.
- Definitions
- Licensed software program (software);
- Key functions of software – the functions of the licensed software as described in Annex
- Software code;
- Documentation – the complete factual and technical description of the licensed software in electronic and printed form.
- Updates – License should also include the right to use software updates;
- External and internal users of the software;
- Territory;
- Confidential information;
- Subsidiaries.
- License type
- Is the license assignable or not? Does the Licensor have the right at any time to assign all the rights and obligations under this agreement to third parties?
- Is the license transferable or not?
- Is the license exclusive or non-exclusive?
- Number of databases the software can be used on? On how many computers or by how many users the software may be used?
- In what territory does the Licensee have the right to use the software?
- Are the subsidiaries permitted to use the software?
- Performance of the Licensor
- Variation 1 Granting of non-exclusive and non-assignable right of use, or
- Variation 2 Exclusive, non-assignable right of use, or
- Variation 3 Exclusive, assignable right of use, or
- Variation 4 Unlimited right of use and operation/purchase of software, or
- Variation 5 Unlimited right of use and operation/new forms of use.
- Installation site. Any installation of the licensed software may only be made on the data processing systems existing at the Licensee’s installation site specified in the Annex.
- Depositing of the source code. The parties should agree upon depositing the source code of the licensed software with any appropriate entity.
- Delivery/Installation.
- Variation 1 The Licensee shall receive a delivery copy of the licensed software on storage media, as well as the documentation in duplicate. The installation of the licensed software shall be conducted by the Licensee.
- Variation 2: The Licensor shall carry out the installation.
- Maintenance/Service. Servicing the licensed software on the Licensee’s request even upon the expiration of the warranty period, especially by providing updates of the licensed software to the Licensee. Further service performance and terms may be fixed in Annex to this license agreement.
- Training/Advising. The contents and scope of the training and advising should be agreed between the parties in the Annex. Any travel times, transport & travel costs, and expenses should be also agreed in the Annex.
- Performance of the Licensee
- Remuneration for performance.
- Variation 1 On the acceptance of the licensed software, the Licensee shall pay a basic license fee in the amount of ___ to the Licensor, as well as a monthly license fee in the amount of ___.
- Variation 2 On the acceptance of the licensed software, the Licensee shall pay a non-recurrent license fee in the amount of ____ to the Licensor.
- Variation 3 The license fee to be paid by the Licensee shall be subject to the extent of use of the licensed software. The exact settlement modalities are set forth in Annex to this agreement. The license fees shall be due monthly upon the receipt of the Licensor’s invoice.
- Other payments.
- Terms of payment/Default.
- Rights in the Licensed Product
- The Licensor shall remain the owner of all the rights in the licensed software, even though the Licensee may modify the licensed software or combine it with own or third parties’ programs. The Documentation submitted to the Licensee remains the ownership of the Licensor.
- Third party property rights
- Infringement of third party rights. The Licensor is liable for the License software be free of any third parties’ rights that would restrict or exclude the use in accordance with the contracted scope.
- Warranty
- Scope of warranty.
- Variation 1 The Licensor guarantees that the licensed software will meet the specific requirements of the Licensee, comply with the indicated or agreed technical or other specifications, and be suitable for the intended use in accordance with the agreed output requirements.
- Variation 2 The Licensor warrants that the licensed software will substantially provide the key functions and meet the acknowledged state of the art, and that it will be free of defects deteriorating or decreasing the value or the fitness for the customary or the contractually agreed use. The warranty does not include such damages and/or disturbances that are caused by the Licensee’s negligent breach of any provisions of this agreement. On the Licensor’s request, the Licensee shall make every effort to support the Licensor in determining and removing the respective defect.
- Variation 3 The Licensor warrants that the licensed software will substantially provide the key functions and meet the acknowledged state of the art, and that it will be free of defects deteriorating or decreasing the value or the fitness for the customary or the contractually agreed use. In connection with the access to the licensed software located on the Licensor’s server, the Licensor guarantees an average availability rate of a minimum 95%. In the event of any disturbances or interruptions, the Licensor shall immediately take all the measures to restore availability within the shortest possible period of time.
- Duration of the warranty commitment. The warranty period of the Licensor [seller] is ___ months. It begins upon the delivery of the software to the Licensee.
- Liability
- Variation 1 Exclusion of the liability as far as it is lawful.
- Variation 2 Limitation of liability.
- Confidentiality
- Acceptance
- Any and all acceptance of any service must be made in due written form and signed by both parties.
- Termination with immediate effect
- if the other party is in severe breach of the contractual provisions, and
- if the consequences of such breach, especially financial consequences, have not been remedied immediately and without any explicit request to do so, or
- if the consequences of the breach of contract cannot be remedied due to their nature, and
- if the notice of termination with immediate effect was given no later than within ___ months upon the moment when the prejudiced party got reliable notice about the breach of the license agreement
- Final Provisions
- Applicable law (freedom of the parties to choose applicable law).
- Interpretation of the agreement.
- Dispute settlement (litigation, arbitration, mediation). Arbitration is recommended.
- Force majeure.
- Stipulation that annexes are an integral part of the agreement
- Severability of invalid or unenforceable provisions from the valid agreement
- Signatories and their signatures, date and place.
- Initials of the signatories and numbers of the pages on every page of the agreement.
- Annexes
- List of software modules.
- Key functions.
- Specification of the installation site.
- Conditions for maintenance services.
- User training conditions.
- Modalities of payments.
- Acceptance deed.