The following is not meant to be legal advice.
Is the risk with respect to software patent infringement low when a technology portion of a product is composed of off the shelf products with a company’s code? What if the code is written in a way that is not cutting edge? When someone does not know much about technology, he/she may take this answer and agree to an indemnity provision, but after deciphering the response, there is wonder as to what is meant by cutting edge.
The customer usually believes the manufacturer of a product is in a better position to controls risks relating to intellectual property. This is the risk allocation argument. The company may not cap liability to a customer in a pilot program in order to give the customer a risk free trial.
What if the customer engages in infringement of the software company’s product? The customer may ask for its consequential damages to be excluded, even if it engages in piracy. A company may agree to exclude the consequential damages for the customer if it thinks the piracy are direct damages versus indirect.
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