Most licensors will want compensation and additional measures to serve as the licensee`s exclusive remedy for intellectual property infringement and claims. Some licensees do not accept exclusive remedies with respect to infringement matters and expect their full range of remedies under the Software License Agreement. Some things to consider when evaluating these terms: This issue updates the procedures and responsibilities for reviewing and approving license agreements for the use of proprietary commercial products and/or services obtained by the NIH as part of an acquisition, including certain licensing agreements where an acquisition is not expected (for example. B only agreements to test a licensed product. and/or a licensed service prior to purchase). For example, this issuance does NOT apply to licensing agreements related to inter-agency agreements, grants or technology transfer agreements. A simple contract does not need to include a section dedicated to definitions, as definitions can be presented when special terms first appear. A complex document should contain all the definitions in a single section in order to facilitate the drafting and subsequent interpretation of the contract. The general conditions used throughout the contract should be placed in this section, as well as the frequently used technical terms. An alphabetical or hierarchical order is recommended, the latter being used when a number of terms are closely related and close to each other, which would make it easier for the reader to navigate the agreement. A customer who does not perform a self-assessment runs the risk of having to pay a lump sum that he has not budgeted if the supplier discovers overuse. You may also have to pay interest on this amount or damages for violations, and/or risk litigation over the termination of the license if trust has collapsed to such an extent that the provider suspects that the customer has paid little attention to the terms of the SLA. While there may be an incentive for short-term customers to hide overuse from the provider and thus defer payment of fees for additional use, it is important to remember that this is likely to be a violation of the SLA and usually negatively affects the vendor-customer relationship.
If possible, the customer`s legal counsel should work with the relevant IT team to verify SLA compliance. Review of acquisition documents by the Office of the Advocate General (OGC) – Departmental policy requires conscientious objectors to use their judgment to determine “where new, unique or complex requirements in the proposed grant or contract raise potential legal issues” that should be considered by the OGC. Responsibility for approving a written license agreement rests with the CO. Responsibility for certifying to the OC that program employees (1) review and agree to all technical terms of the license agreement and (2) ensure compliance with the technical provisions of the license agreement rests with the DBA or another designated program official (preferably the end user). Review and approval responsibilities also apply to licensed proprietary products/services that include: However, for certain transactions, acceptance testing may be appropriate. B for example if significant customizations are made (see below) so that the Licensee can use the Software or integrate it into its entire IT environment. When acceptance testing is used, performance and compliance guarantees, as well as support and maintenance fees, come into effect upon acceptance rather than performance of the software license agreement. In the case of a subsidiary license, the licensee could be allowed to authorize another entity to use the licensed work. For example, if you are a movie producer and you license a song, you may still need to get permission to allow another entity to use the section of your movie where the song is played. In order to avoid conflicts and breaches of contract, a license agreement must be written very clearly and specify the intentions of each party.
This publication sets out the CoR and CO`s review obligations when approving commercial licensing agreements. All electronic messages are considered government property and must be provided to the requester when requested for legitimate government purposes. Employee supervisors, NIH employees conducting formal reviews or investigations, and the Office of the Inspector General may request access to or copies of e-mail messages. Email messages must also be delivered to congressional oversight committees upon request and are subject to Freedom of Information Act requests. Backup files are subject to the same requirements as the original messages. Intellectual property (IP) and how it is paid must be defined in the agreement, whether it is simply a patent or it contains various reports and material documents. This part of the checklist may be more relevant for for-profit licensors, but nonprofit licensors may also include more than one patent (and its family) in the definition of intellectual property. Be responsible for strict compliance with all license agreements between manufacturers and NIHs, including all relevant copyrights in the software, for the products/services they use. Allow the Licensor to terminate the Contract immediately if the Government does not pay the royalties or other amounts at maturity.
The bottom line with SAP v Diageo is that customers and vendors should regularly review their SLAs to ensure that the pricing mechanism remains fit for purpose. It is also important to include in the SLA terms how the parties track the activity that generates fees. B e.g. “Use”, “Access”, “Distribution”. This is covered in the next section. In some cases, one or all parties do not want their name to be used in connection with licensed products that are advertised or sold, as this may indicate that the licensing institution is recommending those products. If this is the case, this should be stated in the agreement. SaaS solution providers are even less likely to provide source code than on-premises licensors. For mission-critical SaaS applications, consider a backup resource such as Iron Mountain`s SaaSProtect or, as mentioned above, a source code escrow agreement. The agreement must be clear about what Licensor will provide (for example, in the case of on-site licenses, Licensor may be required to provide computer media containing the Program in executable form or, more likely today, a password-protected website for downloads, as well as user documentation of sufficient quality and completeness to enable a competent user to run the Program). It should also be clear when these are to be delivered or made available.
NRC RESPONSIBILITIES – Review permitted and prohibited uses of the product or service through the License Agreement with respect to scientific/technical terms and conditions, data rights, computer software royalties and problems, copyright issues, delivery requirements, and other matters that may affect the government`s use of the licensed product/service. If the CoR is not the end user, it may seek expert advice from the end-user(s). The ADR or other designated program officer (usually the end user) certifies to the Company that program staff (1) have reviewed the technical terms of the license agreement and have determined that it meets the programmatic needs and intended use of the product/service by the government, and (2) will ensure compliance with the technical terms of the license agreement….