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The use of shrink wrap end user licenses in mass-marketed software packages have become standard practice. The following sample shrink wrap license agreement outlines the terms of the software purchaser’s non-exclusive license. *** SAMPLE AGREEMENT *** READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE OPENING THIS PACKAGE. OPENING THIS PACKAGE INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, PROMPTLY RETURN THIS PACKAGE UNOPENED TO YOUR SUPPLIER AND YOUR MONEY WILL BE REFUNDED. 1. License In this license agreement (“License Agreement”), you, the purchaser of the license rights granted by this Agreement, are referred to as “Licensee” or “You.” In accordance with the terms and conditions of this License Agreement, Licensor Corporation (“Licensor”) grants Licensee the non-exclusive license to use the accompanying software (“Software”) and documentation (“Documentation”) only in the country where acquired from your supplier (“Supplier”). In this license Agreement, the Software and Documentation and any copies or modifications are referred to as the “Licensed Product.” All rights to and in the Licensed Product, including, but not limited to, copyrights and trade secret rights, belong to Licensor and Licensor holds title to each copy of the Software. The Software shall only be used on a single computer at one time. Licensee shall not transfer or distribute the Licensed Product to others, and this Agreement shall automatically terminate in the event of such a transfer or distribution. Licensee shall not copy or modify the Licensed Product, except that Licensee may copy the Software for the sole purpose of backup as long as all copyright and other notices are reproduced and included on the backup copy. 2. Term This License Agreement is effective until terminated. Licensee may terminate this License Agreement by returning the Licensed Product to Licensor. Licensor may terminate this License Agreement if Licensee breaches any of the terms and conditions. Upon termination of this License Agreement for any reason, Licensee shall return the Licensed Product to Licensor. All provisions of this Agreement relating to disclaimers of warranties, limitation of liability, remedies,or damages, and Licensor’s proprietary rights shall survive termination. 3. Object Code The Software is delivered in object code only. Licensee shall not reverse compile or otherwise reverse engineer the Software. 4. Limited Warranty Licensor does not warrant that the functions contained in the Licensed Product will meet Licensee’s requirements or that the operation of the Software will be uninterrupted or error-free. Licensor does warrant that the media on which the Software is furnished will be free from defects in materials and workmanship under normal use for a period of thirty (30) days from the date of delivery (“Warranty Period”). Any other software and any hardware furnished with or accompanying the Software is not warranted by Licensor. Licensee’s exclusive remedy under this limited warranty is the replacement of any defective physical media on which the Software is furnished, as provided below. To receive a replacement for defective media under this limited warranty, return the defective media to Supplier during the Warranty Period, with proof of payment. EXCEPT AS PROVIDED ABOVE, THE LICENSED PRODUCT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED PRODUCT IS WITH LICENSEE. 5. Limitation Of Liability LICENSOR’S SOLE OBLIGATION OR LIABILITY UNDER THIS AGREEMENT IS THE REPLACEMENT OF DEFECTIVE MEDIA ACCORDING TO THE LIMITED WARRANTY ABOVE. IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OR LOSS OF PROFITS OR LOST SAVINGS, ARISING OUT OF USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION (OR ANY HARDWARE FURNISHED WITH THE SOFTWARE), EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY DAMAGES. 6. General Any hardware provided to Licensee by Licensor shall not be exported or re-exported in violation of any export provisions of the United States or any other applicable jurisdiction. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations hereunder is void. This Agreement shall be governed by and interpreted under the laws of the State of New York, United States of America, without regard to conflicts of provisions. In the case of the United States Government or an agency thereof as Licensee, the following additional terms apply: Restricted Computer Software, as defined in the Rights in Data-General clause at Federal Acquisition Regulations 52.227-14; and as applicable, RESTRICTED RIGHTS LEGEND Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013. Licensor Corporation, New York, New York LICENSEE ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS. LICENSEE FURTHER AGREES THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN LICENSEE AND LICENSOR, AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. Richard Raysman and Peter Brown are partners with the law firm of Brown Raysman Millstein Felder & Steiner (www.brownraysman.com)in New York. The authors are also computer law columnists for theNew York Law Journal , an affiliate of law.com. For information on purchasing the book, “Computer Law: Drafting and Negotiating Forms and Agreements,” please click here.

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