Pay Attention to Who is the Licensor in a License Provision
Key Considerations for Identifying the Licensor
Who is granting the license seems straightforward.
It can be, but sometimes it gets more complicated. Here are some examples of this clause: “Seller grants...,” “Seller and its Affiliates grant...,” or “Seller, on behalf of itself and its Affiliates, grants...”
Check for these four things about the licensors in your contract.
- Are there representations and warranties about the licensors’ authority to grant the license? Make sure the rep and warranty specifically cover all the licensors.
- Are all the licensors signing the agreement? If not, is there a rep and warranty from the signing party that it has the right to make this grant?
- Do the warranty and non-infringement provisions include the licenses granted by all the licensors or just by the signing party?
- Is the other licensor doing a direct grant to the licensee in this contract? Sometimes drafters confuse sublicenses. If someone has the right to grant sublicenses, it grants those directly, not on behalf of the original licensor.
Always check the rest of the contract terms to make sure they match who is granting the license.
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