Article · Intellectual Property and Technology
Software License Agreements: Key Terms and How to Negotiate Them
- Type
- Article
- Jurisdiction
- National
- Date
- 2025-11-18
- Topic
- Intellectual Property and Technology
A software license agreement decides who bears each of the risks that surface when business-critical software goes down, gets breached, infringes someone's patent, or outlives its vendor—yet most negotiations spend their energy on price and almost none on the terms that actually allocate those risks. This UpLaw research article works through the anatomy of SaaS, on-premise, and hybrid licenses from the copyright substrate up: contract formation and clickwrap enforceability, whether UCC Article 2 even governs, the license grant and its five dials of scope, the pivotal covenant-versus-condition line from MDY v. Blizzard, service levels, data rights and privacy, open source, warranties under UCC 2-316, IP-infringement indemnity, limitation of liability under UCC 2-719, audit rights, and the escrow and Section 365(n) protections that keep a customer running if the vendor fails. Throughout, it follows a fictional vendor and enterprise customer through one negotiation and asks the same question at every clause: is this risk sitting with the party best able to carry it? The throughline is that a great software agreement is an exercise in deliberate risk allocation, not a contest one side wins.
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