3. Limitation of Actions
Limitation of Actions
The limitation of actions or "
of limitations" provision imposes a
limitation on the period of time within which a party may bring a lawsuit against the other party. These provisions are used to circumvent the normal period of time under
law that a party would have to file a suit. For example, in many jurisdictions, the period within which a party must bring an action for breach of contract is four
from the date of the breach. Section 11.3 of the vendor form agreement would change that period to one year. Also note that Section 11.3 applies only to claims by the customer. While the licensee may feel comfortable
some limit on the length of time within which a lawsuit must be brought, that limit should
not be less than two or three years. In addition, the licensee should insist that any limitation of actions provision apply equally to both parties.
Most vendor drafted agreements include what is known as a "force majeure" clause. This clause was originally designed to
parties of their
obligations in the event of certain acts of god such as fire, earthquake, or civil disturbance. Over the
have expanded the meaning of "force majeure" well beyond its intended purpose to include such events as interruption of communication service, employee relation difficulties, and any act "beyond the Licensor's control." This is not an acceptable allocation of risk,
when the software and services being provided by the vendor are critical to the licensee's business operations. If the vendor demands some type of protection, the force majeure provision should be limited to true acts of God and an extended delay should trigger a termination right for the licensee. In addition, if the licensee has any obligations with regard to implementation of the software, the provision should be made
to both parties.
. Vendor shall not be responsible for failures of its obligations under this Agreement to the extent that such failure is due to causes beyond Vendor's control including, but not limited to, acts of God, war, acts of any government or agency thereof, fire, explosions, epidemics,
strikes, delivery services, telecommunication providers, strikes, labor difficulties, lockouts, embargoes, severe weather conditions, delay in transportation, or delay of suppliers or
If the suspension of Vendor's performance continues for more than fourteen (14) days, Customer may terminate this Agreement effective immediately
Integration provisions such as the one in Section 17 of the vendor form agreement are standard in contracts, and
serve to protect both parties. The concept is "If it isn't in this Agreement, it doesn't exist." Thus,
party can assert that it said something to the contrary, was told something different, was
something not in the agreement, etc. It is imperative for licensee to understand, however, that if a representation was made to the licensee regarding software performance or functionality, and that representation is not included in the Agreement, it is as if that representation had never been made. Consequently, all documents containing licensor representations or other things upon which the licensee is relying must be incorporated into or attached to the Agreement. To the extent the licensor has made oral representations regarding important software performance capabilities or functions, those statements should be reduced to writing and, after the
has had an opportunity to review the representations, they should be incorporated into, or attached as, an exhibit.
In addition to ensuring that all information and documentation on which the licensee is relying on in entering into the transaction are incorporated into the license agreement, language should be added to the license agreement to prevent it from being overridden by, for example,
license agreements provided with the delivery disks.
. This Agreement
the entire agreement between the parties with respect to the subject matter hereof, and supersedes all other prior and contemporary agreements, understandings, and commitments between the parties regarding the subject matter of this Agreement. This Agreement may not be modified or amended except by a written instrument executed by the parties. In particular, any provisions, terms, or conditions contained in Customer's Purchase Orders or other similar forms that are in any way inconsistent with or in addition to the terms and conditions of this Agreement shall not be binding upon Vendor.
No shrink-wrap, click-wrap, or other terms and conditions or agreements ("Additional Terms") provided with any products or software hereunder shall be binding on Customer, even if use of such products and software requires an
"acceptance" of those Additional Terms before access is permitted. All such Additional Terms shall be of no force or effect and shall be deemed rejected by Customer in their entirety.