A recital section in a Software License is the part that’s supposed to explain the basic deal. They often don’t. They should.
Legally, the recital part of a contract has limited effect. The facts stated in the recitals are presumed true. California Evidence Code §622. But this rule excludes terms of consideration. The recitals are often referred to as the “whereas” section because they have a bunch of sentences that start with “Whereas.” This archaic ritual has been passed down from medieval times. Using whereas clauses is a standard practice so it is not wrong. You are free to start your license agreement:
Whereas, Licensor has developed a software application it desires to license to Licensee; Whereas, Licensee wishes to license Licensor’s software from Licensor under the terms and conditions of this Agreement
Then like a bass drum, NOW Therefore, the parties agree ….. .
That is style hard to read and a bit confusing. Try these example recitals anyone can quickly understand and perhaps would like to see some day:
Google licenses Oracle’s Java APIs to end their lawsuit.
Microsoft allows Apple to resell its complete Word application for royalties.
Look at what the deal boils down to and just state it. Do not load it with definitions-those come soon enough. And limit all the noise and limitations and restrictions. Avoid this:
Microsoft, and affiliates, allow by limited revocable and terminable license, Apple to resell or sublicense, directly or through distribution, Microsoft’ Word application, in binary code only for the minimum guaranteed royalties in the territory stated in the attached exhibit or as defined below in section 1……
Just stop putting all the noise in and explain the deal simply. By stating less, people can sort out the type of agreement quickly and look at all the details when they want.