5. Integration Clause

Integration provisions such as the one in Section 17 of the vendor form agreement are standard in contracts, and generally serve to protect both parties. The concept is "If it isn't in this Agreement, it doesn't exist." Thus, neither party can assert that it said something to the contrary, was told something different, was promised 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 licensor 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, shrink-wrap license agreements provided with the delivery disks.

Example Revision:

Entire Agreement. This Agreement constitutes 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 affirmative "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.