I am uncomfortable with some terms of the license

I am uncomfortable with some terms of the license

Postby mmesser » Wed Mar 02, 2011 7:10 pm

You make a fine product, and certainly have a right to charge for it. The price doesn't sound unreasonable. But a number of things about the license agreement bother me.

I am being paranoid about some of these points. They could be construed in ways you may not intend. If we are all reasonable, most of these issues would not come up. But lawyers are not known for being reasonable.

While I have criticisms of your license, please understand that many license agreements bother me. I have seen far worse.

Multiple versions of the license
When I started to install Reflector 7 beta 5, a dialog asks me to agree to the license agreement. I clicked on the link, which takes me to
This says

The software is subject to Red Gate Software‟s full License agreement. The full License agreement is either:
(i) set out below and included in the software; or
(ii) set out in http://www.red-gate.com/purchase/license.pdf; or
(iii) available in the doc directory under the installation root directory.

The folder where I downloaded the files contains three different license agreement files, none of which match the dialog version.

Which am I agreeing to?

The points below come from the version in the dialog.

Downloading files = installation
The first two parts are from section 1

“Install”, \"install\", \"installing\", \"installation\" or \"installed\" in connection with the Licensed Software includes the downloading of the Licensed Software from our or any third party's remote server;

“Licensed Software” means such of the Software, as is selected by you and as licensed to you under the License, including any related manuals, help files or other documentation and packaging. Such Licensed Software is selected by the downloading, installation or use of such Software or the clicking of the “I accept” button;

10.1 The License shall commence upon your acceptance of its terms by the downloading, installation or use of the Licensed Software or the clicking of the \"I Accept\" button, and shall continue until terminated in accordance with clauses 10.2 or 10.3, or otherwise in accordance with the License.

Surely you do not intend that downloading = installing = agreeing to the license. I would like to read the license between downloading and agreeing.

The definitions refer to schedules 1 - 5 that identify various components of the software. Where are the schedules?

Non-transferable license
This is in Section 5.1 A paid license ought to be transferable.

Use for a competitive product
5.5 You shall not use the Licensed Software to manufacture or distribute a product that is substantially similar to or competitive with our Software.

Do you intend for this to include developing such a product? Would I need to remove it as a plug in from Visual Studio if I use Visual Studio to develop such a product?

Terminating the license
10.6 On termination of the License, and except as under clause 10.5 above, the provisions of clause 1 (Definitions), 2 (Interpretation), 4 (Ownership of Intellectual Property Rights), clause 6.4, clause 7 (Confidentiality), clause 8 (Warranty), clause 9 (Limitation and Exclusion of Liability), clause 10 (Term and Termination), clause 11 (Audit), clause 12 (Third Party Claims) and clauses 13 to 20 will remain in effect.

All that terminates are clauses 3 (Evaluation License), 5 (License), and parts of 6 (SQL Comparison SDK and SQL Command Line SDK).

So more or less all of my rights terminate, and all of my obligations survive. My obligations include such things as a requirement to keep full and accurate records of distribution, and to submit to and possibly pay for audits. On the other hand, you disclaim all obligations and liabilities in section 10.5.

Again, terminating the license
The license can terminate automatically and/or without notice in various ways.

10.2 The License will terminate automatically if you uninstall the Licensed Software, fail to comply with any provision of the License, or uninstall and destroy or voluntarily return the Licensed Software to us.

Are you sure that this expresses your intent? The license terminates if I uninstall it from one machine and reinstall it on another?

Failure to comply with any provision of the license sounds reasonable, but some of the provisions worry me. For example,

4.2 You hereby agree to refrain from any action which would diminish our Intellectual Property Rights in or relating to the Licensed Software or which would call them into question.

Call them into question? Truly?

10.3 We may terminate the License immediately and without notice if we reasonably suspect that you are using the Licensed Software for any purpose which contravenes the laws of England.

Following laws is good, but I am an American.

11.1 You agree that we shall have the right (where we reasonably suspect that the terms of clauses 5 and 6 have not been complied with) upon reasonable notice to have an independent third party auditor enter your premises to audit any OSE system or electronic media ...

We will pay the costs of any such examination or audit unless such audit shows that additional fees are payable by you or that you are otherwise in breach of this agreement, in which case you shall pay the costs of the examination or audit.

While I recongnize your need to a reasonably enforcable agreement, I am uncomfortable with the open ended expense. Would the costs of the audit include a hotel and per diem for the auditor? A plane ticket from England?

Section 9.3 says your liability
... shall be limited in all cases to the price paid for the Licensed Software.

There is no limit to mine.

Also, I am not comfortable with open ended permission to audit me.

Liability for infringement
From the tone of section 12.2, it sounds like you are trying to be reasonable.

The two of us shall consult together on an appropriate course of action and shall seek to minimise the effect of any claim on the respective businesses.

But it does a better job of protecting you than me.

We shall have the right, but not the obligation, to take control of all negotiations and litigation arising out of the claim. We will pay any damages and costs awarded against you in connection with any claim subject to a maximum of the aggregate sum of licence fees paid to us by you under this License
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Postby HJermy » Fri Mar 04, 2011 11:08 am

Hi mmesser,

Thanks for your post. I'm glad you like Reflector.

This is the standard Red Gate software product license, in use for a wide range of products and accepted by our customers worldwide.

We do update our licensing agreement fairly regularly and I will make sure your comments are put forward the next time this is done.

If you have any further feedback or questions I'd be happy to hear them.

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Joined: Mon Jan 17, 2011 4:43 pm

Postby mmesser » Fri Mar 04, 2011 2:28 pm

Yes, many customers do agree to such licenses.

I wonder how many would if they read it and beleived it would be enforced.

No doubt some do because they need the software, and don't feel they have a choice.

I am glad you will at least review it.
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Joined: Wed Mar 02, 2011 4:04 pm

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