Feedback

Table of Contents:

• License to Use Feedback

• Reservation of Rights

Feedback

Feedback clauses must be reviewed carefully to avoid any (i) burdensome obligations on a party regarding use of feedback, (ii) warranty liability on the feedback provider, and (iii) waiver of valuable intellectual property rights by the feedback provider (see related discussion in the context of NDAs in the section entitled “Feedback”).

The following exemplar includes a suitable definition of feedback, the requirement that anything proposed to be treated as feedback be in writing and identified as feedback, consent from the feedback provider to the receiver (usually in the form of a license grant) to use the feedback, a disclaimer of warranties, and a reservation of IP rights (all of these points and others are addressed more specifically in other exemplars found in this section):

Exemplar C33-1

Customer may provide Contractor with suggestions, comments, or other feedback regarding Customer’s evaluation or use of the Solution, including but not limited to suggested performance improvements to the Solution (“Feedback”). Feedback which is provided by Customer to Contractor in connection with the Solution or this Agreement shall only be in writing, clearly marked as feedback and duly signed by the Vice President or Head of Research and Development of the Customer. Feedback may be used by Contractor to improve or enhance its Solution subject to the following restrictions, namely Feedback will be provided: i) on a non-exclusive basis; and ii) “as is” without warranty of any kind, whether express, implied, statutory or otherwise (including but not limited to, any warranty about the ability of Contractor to use the Feedback or whether the Feedback is subject to third party licenses (including any open sources)) and may contain errors or omissions; and iii) without a transfer of title of the Customer’s intellectual property rights; and iv) without a license to use the Customer’s patents or patentable inventions; and Contractor shall not be entitled to assert any patent rights over any Feedback. For the avoidance of doubt, the granting of any license relating to any of Customer’s patents or patentable inventions included or embodied in the Feedback shall be subject to good faith negotiations between the parties.

License to Use Feedback

The essence of any feedback clause is that once such feedback is provided, the party providing such feedback consents to its use by the other party:

Exemplar C33-2

Contractor and its Affiliates shall have the right to use any feedback provided by Licensee to Contractor relating to the Licensed Software and its related Documentation.

Exemplar C33-3

We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.

Exemplar C33-4

In its sole discretion, Licensee may advise Supplier of suggestions, comments or other feedback (“Feedback”) relating to the Licensed Software. Supplier may use and include any Feedback that Licensee voluntarily provides to improve the Licensed Software or other related Supplier technologies. Accordingly, if Licensee provides Feedback, Licensee agrees Supplier and its licensees may freely use, reproduce, license, distribute, modify, and otherwise commercialize the Feedback in the Licensed Software or other related technologies.

Exemplar C33-5

Client may provide suggestions, comments or other feedback (collectively, “Feedback”) to Contractor with respect to its products and services, including the Services. Feedback is voluntary. Contractor may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Client’s intellectual property rights to make use of the Feedback, Client grants Contractor an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with Contractor’s business, including the enhancement of the Services.

Exemplar C33-6

Licensee and the Subsidiary are not obligated to provide Contractor with comments or suggestions regarding Licensee’s Derivative Source Programs or the Source Code received under this Agreement. However, should Licensee or the Subsidiary provide Contractor with designs, comments or suggestions for the modification, correction, improvement or enhancement of the Source Code or Contractor products which may embody the Source Code (collectively, “Feedback”), then Licensee and Subsidiary grant to Contractor a non-exclusive, irrevocable, worldwide, royalty-free license, including the right to sublicense Contractor licensees and customers, under Licensee’s intellectual property rights in the Feedback, and the rights to use and disclose such Feedback in any manner Contractor chooses and to display, perform, copy, have copied, make, have made, use, sell, offer to sell, and otherwise dispose of Contractor’s and its sublicensees’ products embodying such Feedback in any manner and via any media Contractor chooses, but without reference to the source of such Feedback.

Exemplar C33-6

Licensee has no obligation to give Supplier any suggestions, comments or other feedback regarding the Software (collectively, Feedback"). However, any Feedback that Licensee voluntarily provides may be used in Supplier products and related specifications or other documentation. Accordingly, if Licensee does give Supplier Feedback on any version of the Software, Licensee agrees that Supplier may freely use, disclose, reproduce, license, distribute and otherwise commercialize the Feedback in any Supplier product, technology, service, specification or other documentation.

Reservation of Rights

To protect against waiver of intellectual property rights, a license granted to use feedback can be constrained by excluding the right to use intellectual property rights of the party providing the feedback:

Exemplar C33-8

Customer may provide Contractor with suggestions, comments, or other feedback regarding Customer’s evaluation or use of the Solution, including but not limited to suggested performance improvements to the Solution (“Feedback”). Customer agrees that any Feedback shall be voluntarily and Customer hereby grants Contractor the right to use such Feedback to improve the Solution, however, Customer is not granting Customer any rights or licenses under Customer’s patents or patent applications. Except as expressly set out herein, no intellectual property right of either party is transferred or licensed under this Agreement.

Exemplar C33-9

Either party may identify problems or suggest improvements or other changes to the other party's technology, products, or services ("Feedback") in the performance of this Agreement. All Feedback provided by one party to the other hereunder shall be provided "as is" without any warranties of any kind, whether express or implied. Except for any Feedback where the party providing Feedback ("Feedback Provider") indicates that another intellectual property license from the Feedback Provider is required to use the Feedback, either at the time of providing Feedback or within such period thereafter that the party receiving the Feedback ("Feedback Recipient") is not materially prejudiced by the failure to make earlier disclosure, the Feedback Provider hereby grants to the Feedback Recipient the right to use the Feedback on a worldwide, royalty-free, sub-licensable, non-revocable and non-exclusive basis to develop, manufacture, make, have made, reproduce, have reproduced, modify, use, export/import, offer to sell and sell as part of the Feedback Recipient's technology, products or services and to grant others the right to do so. The use of the Feedback will not impose any confidentiality or other obligations on the Feedback Recipient relating to the Feedback. However, the Feedback Recipient agrees not to disclose the source of such Feedback to third parties without the consent of the Feedback Provider.

Exemplar C33-10

Notwithstanding the foregoing, any suggestions, comments, ideas, improvements, or other feedback or materials that each Party (as the “Providing Party”) provides or makes available (or has provided or made available) to the other Party (“as the “Receiving Party”) in connection with this Agreement ("Feedback") is not considered confidential by the Receiving Party, and the Receiving Party has no obligation to keep Feedback confidential or to return or destroy any Feedback. All Feedback provided by one Party to the other hereunder shall be provided "as is" without any warranties or conditions of any kind, whether express or implied. Feedback is (or was) submitted voluntarily and without restriction, and the Receiving Party is granted a non-exclusive and royalty-free license to use, reproduce, modify, distribute, display, perform, broadcast, exploit, sublicense and disclose any Feedback in any manner, in any form or medium, whether now known or hereafter developed, without any obligation, express or implied, to Providing Party, without any notification, payment or attribution to the Providing Party. Notwithstanding the above, a Feedback Recipient’s license rights granted above shall not include license rights under any of the Feedback Provider’s patents or copyrights if the Feedback Provider indicates that a license is required to exercise such license rights, either at the time of providing the Feedback or within such period thereafter that the Feedback Recipient is not materially prejudiced by the failure to make earlier disclosure.

Exemplar C33-11

If You choose to give Us any ideas, suggestions, enhancement requests, recommendations or any other materials in connection with this Agreement or Our Products (collectively, “Feedback”), You grant Us a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, and/or incorporate the Feedback into Our Products or otherwise commercially exploit it, provided however, that such Feedback rights shall not include rights under any of Your patents or copyrights if You indicate that a license is required to exercise such license rights, either at the time of providing the Feedback or within such period thereafter that We are not materially prejudiced by the failure to make earlier disclosure.

If the use of feedback requires an additional license under the IP rights of the feedback provider, the terms of such IP license can be addressed separately between the parties:

Exemplar C33-12

Customer agrees that any and all suggestions for the Services and other feedback, information and reports that Customer provides to Contractor (“Feedback”), are and will remain the property of Contractor. Contractor may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to Customer and without retention by Customer of any proprietary or other right or claim. Customer hereby assigns to Contractor all right, title and interest (including without limitation all intellectual property rights) that Customer may have in and to all Feedback. At Contractor’s request, Customer will execute any document, registration or filing required to give effect to the foregoing assignment. Notwithstanding the foregoing, and for avoidance of doubt, this Section does not grant any rights under any of Customer’s intellectual property rights if Customer indicates that a separate license is required to exercise such rights, either at the time of providing the Feedback or within such period thereafter that Contractor is not materially prejudiced by the failure to make earlier disclosure.