21 Availability
Erik Limpitlaw
Desired result
The purpose of this clause is not only to specify the date on which the vendor is obligated to provide access to the licensed content but also to represent the licensor’s promise to make the resources available. This date, commonly known as the ‘Effective Date’ of the Agreement, is referenced in an earlier section of the Agreement where it is clearly identified.
What it means
The fundamentals of contract law necessitate the fulfillment of promises by both parties involved. In the context of a license agreement, the commitment to provide content on the Effective Date of access delineates the licensor’s obligation. It is crucial to articulate in unambiguous terms what is to be provided and establish a clear benchmark or timeline for the expected delivery. This not only reinforces the expectation that the licensor will deliver access but also defines a performance obligation that can be used to measure compliance.
Desired language
Example clause:
“Availability of Licensed Materials. Upon the Effective Date of this Agreement, Licensor shall make the Licensed Materials available to Licensee and Authorized Users.” [Stock Vendor Agreement]
Tricks & Traps
In general, this should be a straightforward clause.
The trick and trap in preparing the license agreement is to ensure the accepted dates on an Offer or Order Form match the assigned Effective Date in the license agreement.
It is also important not to confuse the date of signature by either party in the Signature Block with the Effective Date, unless explicitly designated as such. The signature date is often mistakenly used to define the initial start of access, which can lead to misunderstandings and complications when distinguishing between the two and ensuring accurate identification of the commencement of access.
Finally, it’s advisable to negotiate a specific or firm date when addressing this clause. While the effective date of the agreement and the start date for performance might justifiably differ—for instance, one might wish to bind the agreement earlier than the point at which the materials go online—it is critical that these dates are clearly defined to avoid confusion. Many model licenses still outline a window of time, which tends to favor the licensor. The below examples demonstrate how vague language can undermine accountability and make it difficult to enforce the licensor’s obligations or determine damages.
“Availability of Licensed Materials. Within two (2) weeks of the Effective Date of this Agreement, Licensor shall make the Licensed Materials available to Licensee and Authorized Users.” (NERL Model License 2016)
“Availability of Licensed Materials. The Licensor will make the Licensed Materials available to the Licensee and Authorized Users within [enter time period] of the Effective Date.” (CRL Model License 2014)
Importance & Risk
Addressing the delivery or service of a good in a license agreement will provide a framework for resolving disputes. It also establishes a benchmark for assigning risk and/or damages should the need arise.
