When our clients are purchasing software licenses, maintenance, or support they turn to Scott & Scott’s trusted professionals to assist them with negotiating favorable licensing terms.  Scott & Scott’s lawyers have significant experience interpreting software licenses, and therefore provide valuable insight when representing our clients in licensing transactions.  Our attorneys evaluate the product, the proposed licensing models, and make recommendations regarding revisions to the agreements that reflect the parties’ objectives.  We also have extensive experience evaluating and revising click-wrap or shrink-wrap agreements.

Enterprise Agreements

For large corporations, the most cost-effective way to purchase software may be an enterprise agreement or a site license.  However, in many instances companies lose the anticipated cost savings because they must expend large amounts of time and money to examine the environment and ensure compliance with the contractual obligations.

It is important to consider the value of an enterprise agreement or site license at all three stages of the agreement cycle – execution, true-up, and renewal.  At the onset of the agreement, Scott & Scott can help a company determine whether the agreement contains onerous provisions and can help negotiate definitions that are favorable.  Many disputes in the early years of the agreement arise because the parties disagree on the critical definitions in the agreement – for example, who is a user?

Companies also encounter difficulties because they have agreed to conduct periodic true-ups during the term of the agreement.  When it is time to report the results of the true up, the companies determine that they do not have the tools, personnel, or knowledge base to prepare the report.  They do not submit the materials in time and find themselves in breach of their obligations.  Our attorneys can assist with preparing and reviewing true-up reports or negotiating extensions of time to submit the reports.

When it is time to renew an enterprise agreement one of the primary questions is whether to execute an addendum or an entirely new agreement.  Scott & Scott can help identify the benefits and detriments to each approach and formulate a renewal strategy that makes sense.  If there have been compliance issues during the term of the previous agreement, companies may want to address those issues and get a release from the publisher as part of the renewal process.

Software Maintenance & Support

For companies evaluating software maintenance and support agreements, Scott & Scott’s attorneys can assist you with negotiating provisions that are less one-sided, ensure that your interests are protected in the event that the publisher stops providing maintenance and support, and evaluate the benefits and pitfalls in the agreements.  In some instances, it may be necessary to request an escrow agreement to protect the end-user in the event that the publisher breaches its obligations under a maintenance or support agreement.

If a publisher fails to provide the agreed-upon support and maintenance, companies need to take action.  We can contact the publisher, help draft demand letters, outline the publisher’s breach of its maintenance and support obligations, and if necessary, file a lawsuit to protect our clients’ interests.