Info on precedence in Software License Agreements

Hi all,

I’m reviewing software documentation and am hung up on a clause in the license agreement that’s embedded in the software. The vendor website has been completely absent in any other documentation, however we downloaded a copy to a test platform to see if there was documentation in the program and found this:

“This Agreement, including the applicable Sales Agreement or Contract referencing this Agreement is the complete Agreement regarding the use of this Software, and supercedes and replaces any prior oral or written communications between you and _______.”

Given this documentation requires actual use of the product, is this some kind of legal “gotcha” that is unavoidable? Is it typical of a negotiated enterprise agreement to be able to prevent this language? The problem is it’s controller software for a hardware product we purchased and, in unpacking the contract documentation, there isn’t much there to protect our interests. Wondering if any of you have encountered this at the code level and if there’s any way around it.

Thanks!
Ruxton

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The main reason publishers use template statements like this is to establish that contract as the governing one. That way if there are conflicting clauses with older contracts, it will be clear for the parties to know which contract is king and therefore which clause applies. Usually an enterprise-type agreement will supersede any embedded click-through agreements within the product.

Secondly, unfortunately, I’ve heard stories from publishers over the years who have sales teams that may promise certain things in email that can’t be done, SLAs that can’t be met, etc. The statement quoted above is also meant to establish the contract as the thing that defines the use rights and other clauses, not side emails, handshakes or oral agreements from what a partner or someone at the publisher may have promised outside the contract. Hope that helps!

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