Category Archives: Software
May 4, 2015
Courts treat the two differently because of the difference in the manner in which the user accepts the terms. Clickwrap agreements are generally enforceable because the user’s click is an affirmative act indicating acceptance. The enforceability of browsewrap agreements depends on the prominence of the browsewrap terms. The more prominently the terms are displayed, the more likely a court will rule that users are bound because they must have seen the terms (or deliberately ignored them) and therefore a user’s continued use of the site demonstrates consent to the terms.
August 16, 2012
Here is a general checklist of things to consider when licensing IP, in no particular order. If you spot any significant omissions, please comment.
1) What precisely is being licensed?
2) What will be the term of the license?
a) any automatic renewal?
c) fee changes in subsequent license periods?
d) termination rights?
3) What will be the fee?
a) how calculated? flat fee? percentage of sales? gross or net?
b) how often paid?
c) what currency?
4) What territory?
5) Exclusive or non-exclusive?
6) Licensee’s Rights and Duties
f) Quality control
g) Right to modify materials?
h) Who owns licensee modifications?
i) Any right to sublicense?
j) Any right to assign license?
k) Any sell off of any materials at the end of the term?
l) Any minimum sales quota or other duty to exploit the IP?
m) How will complaints be handled?
7) Licensor’s Rights and Duties
a) Warranties or Indemnities (duty to defend licensee?)
d) Provision of materials
e) Trouble shooting?
f) Right to inspect/monitor/approve product and/or marketing materials
8) Choice of law, choice of forum, mediation or arbitration?
9) IP registrations, how will they be handled? Licensee acknowledges licensor’s IP?
10) Who sues infringers? If license is exclusive, will licensee have any right?