This contract tip is about using multiple definitions for similar terms.
I've seen this approach used by some vendors to avoid responsibility for third-party elements incorporated into their own products.
Most commercial contracts make the vendor liable for any infringement or misappropriation involving third-party IP incorporated into the vendor's product.
But some vendors use a subtle drafting technique to avoid that responsibility.
These vendors create a separate definition of their product that excludes any third-party IP.
Let's take the example of a vendor licensing a software program that incorporates open-source software
The vendor might create one definition of the software program that includes both its own code and the open-source software. This defined term might be something like "Product." The vendor would then use another definition that includes only its own proprietary code, labeling it as "Software."
Then the vendor would use the term "Software" (the term that includes only its own code) when identifying what software is covered by the IP indemnification and other provisions.
Whenever you see two definitions covering similar concepts, make sure to take note of the differences and watch for how they are used.
Have you seen this in the contracts you receive?
