Acquiring 'Off the Shelf' Software

Your routine business software requirements can generally be met by 'off the shelf' packages covering such areas as word processing, databases and spread sheets.

Presentation of the Software and the Nature of the Acquisition

Whilst you acquire the software program, it is legally supplied to you under a copyright licence containing terms which restrict what you can do with it. The licence technically ends if you break these terms. Such restrictions may include restraints on copying the program or supplying it to others or modifying it.

The program will often be supplied on physical media, e.g. a disk. Alternatively, it may be supplied by means of a download from a website.

When a program is supplied on a disk, a copy of the licence agreement will commonly be shrink-wrapped together with the disk and manuals. There will be a note on the outside of the package with a statement to the effect that opening it indicates that you agree to its terms. In practice, however, if you open the package and find the terms of the licence unacceptable, you may generally return it without opening the disk envelope and you will still obtain a full refund. This should, however, be confirmed.

Where the program is available from a website and acquired by downloading it to your computer, the terms of the licence for use of the software will be presented to you on the website before download. This type of software is often called “web-wrap” or “click-wrap” software.

The licence cannot by law remove your right to make a back-up copy if it is necessary for effective use of the software. However, if you require multiple working copies, a multiple-user licence rather than a single-user licence should be obtained.

Licensors have in recent years often been willing to use powers under their licence to audit an end user to check whether the number of copies held by that end user exceed those licensed to it, and to take legal action if they consider it justified.

Key Contractual Issues

In reviewing the terms of the licence, key considerations may include the following:

• integrating the software with other systems;
• transfer of data to and from the software;
• running the software on your equipment;
• usability of the software on upgraded equipment;
• trade-in value of the software if a later version is introduced;
• training;
• hot-line/emergency call-out services and charges asked for such services.

Warranties by the licensor which you might expect in a software licence could well include those relating to the effectiveness of the software and the licensor's rights to grant the licence. Statutory implied terms protecting purchasers of goods may apply where you are a business (not consumer) customer but it may not be clear whether they do apply in any particular case. Therefore, if as a business customer you wish to rely on any warranties, they should be expressly set out in the licence agreement.

The licence may well exclude liability for claims by the dealer; whether or not this is enforceable is a debatable point but care should be taken generally about relying on the dealer's representation.