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A software licence agreement (in US spelling: software license agreement) is the contract in which the owner of a computer program lets your business use it, usually for a fee, while keeping the copyright. Licensing software to or from a Dutch company? Have a Dutch lawyer review the licence before you sign, so that use rights, termination and governing law are settled.
For licences of trademarks, patents and other rights, see our general page on the licence contract under Dutch law.
What is a software licence agreement under Dutch law?
Under Dutch law, a software licence agreement is a contract permitting use of a copyright-protected program. Dutch copyright law protects computer programs and preparatory material (Article 10(1)(12°) Copyright Act), and the owner may license all or part of it (Article 2(2)).
The contract is formed by offer and acceptance (Article 6:217(1) Dutch Civil Code). Under Dutch law, an exclusive licence and any transfer of the copyright must be agreed in writing (Article 2(3) Copyright Act). Articles 45h to 45n of the Copyright Act contain the rules for computer programs.
For a contract assigning exclusive rights of use, the EU Court of Justice has held, in an infringement action against a third party, that formal validity is a contractual question under the Rome I Regulation, even where the form rule sits in a copyright act (EU Court of Justice 24 September 2026, Case C-176/25, IU v BT, ECLI:EU:C:2026:785). The same reasoning is likely to apply to an exclusive licence, but the Court did not rule on licences. The contract is valid in form if it meets the rules of the governing law or, for example, of the country where either party was at conclusion (Article 11 Rome I).
What is proprietary software licensing?
Proprietary software licensing means the owner keeps the copyright and source code and grants users a limited right of use. Users need that right: loading, running or storing a program is reproduction where it requires copying (Article 45i Copyright Act).
Open-source licences work the other way round: the code is available, subject to conditions for copying and sharing. In a proprietary licence, the commercial deal sits in the limits: who may use the software, for how many users or devices, for what purpose, where and for how long.
Which rights does a software user keep, whatever the licence says?
Under Dutch law, some user rights survive any contract. The lawful acquirer of a copy may load, display and correct errors in it, and a licence cannot prohibit that (Article 45j Copyright Act). Other use needed for the intended purpose is allowed unless agreed otherwise.
| User right | Dutch provision | Can the licence exclude it? |
|---|---|---|
| Loading, displaying and error correction by the lawful acquirer of a copy | Article 45j Copyright Act | No |
| Other copying needed for the intended use | Article 45j Copyright Act | Yes, the contract can limit this |
| A back-up copy, where needed for the use | Article 45k Copyright Act | No (Article 8 Directive 2009/24/EC) |
| Observing, studying and testing how the program works | Article 45l Copyright Act | No (Article 8 Directive 2009/24/EC) |
| Decompiling for interoperability, under strict conditions | Article 45m Copyright Act | No (Article 8 Directive 2009/24/EC) |
These rules implement Directive 2009/24/EC (Articles 5 and 6), so other EU countries have comparable rules. Article 8 of the Directive requires every Member State to treat contract terms contrary to the back-up, observation and decompilation rules as null and void, so a term in a foreign-law licence is tested against that rule as well. Decompiling is allowed only for interoperability information that is not readily available, which may not be used to build a substantially similar program (Article 45m(1) and (2)).
Licensing software to or from a Dutch company? Our contract lawyers in the Netherlands review the licence grant, the user rights and the exit clauses before you sign.
Which clauses should a software licence agreement contain?
A good licence defines what may be used, by whom, how use is measured and what happens at the end. If Dutch law governs, a term does not apply where that would be unacceptable under reasonableness and fairness (Article 6:248(2) Dutch Civil Code).
- Licence grant: exclusive or not, users or devices, territory, purpose and sublicensing. Under Dutch law, an exclusive licence must be in writing (Article 2(3) Copyright Act).
- Licence metric and audit: how use is counted, when the licensor may audit and what extra use costs.
- Support and updates, often in a separate service level agreement.
- Source code escrow, if the supplier stops supporting the software; see protecting software under Dutch law.
- Customisations: who owns code written for the customer.
- Liability caps and exclusions, including data loss and downtime.
- Term, termination and exit: notice, deletion of copies and access to the customer’s data.
- Governing law and the competent court or arbitral tribunal.
For implementation, hosting and development projects, see our page on the IT contract under Dutch law.
Who owns software that was developed for you?
Paying for software does not make you the copyright owner. Under Dutch law, the employer counts as author of a program employees write in their job, unless agreed otherwise (Article 7 Copyright Act). An outside developer keeps the copyright unless it is transferred.
Under Dutch law, a transfer requires a written agreement and a deed of transfer (Article 2(3) Copyright Act). Without a transfer, the customer has at most a licence. Agree this before development starts, covering the source code and preparatory material.
Do Dutch rules on standard terms apply to an EULA?
Often not, in an international deal. The Dutch rules on general terms and conditions (Articles 6:231 to 6:247 Dutch Civil Code) do not apply between businesses that are not both established in the Netherlands, whatever law governs the contract (Article 6:247(2)).
Between two Dutch businesses they always apply (Article 6:247(1)). A foreign company counts as established in the Netherlands if a Dutch branch is to perform the contract (Article 6:247(3)). So a Dutch business customer of a foreign software company cannot rely on the Dutch annulment grounds for standard terms against an end-user licence agreement (EULA). If Dutch law governs, Article 6:248(2) still applies. Consumers living in the Netherlands are protected regardless (Article 6:247(4)). See also our page on general terms and conditions in the Netherlands.
Which law governs a software licence with a Dutch party?
The law the parties choose governs the licence (Article 3(1) of the Rome I Regulation). Without a choice, Rome I has fixed rules for contracts such as sale and services, but a licence is not on that list (Article 4(1)).
The law of the habitual residence of the party that effects the characteristic performance then applies (Article 4(2)), unless the contract is manifestly more closely connected with another country (Article 4(3)). In a licence, that party is not always obvious, so choose the law and the court or arbitral tribunal expressly. A clause choosing the courts of an EU Member State, such as the Netherlands, gives them jurisdiction wherever the parties are domiciled; as a rule, it must be in writing or evidenced in writing (Article 25(1) of the Brussels I bis Regulation).
A copyright claim is different. Whether use in the Netherlands infringes the licensor’s copyright is judged under Dutch copyright law, and the parties cannot choose another law for that question (Article 8(1) and (3) of the Rome II Regulation). Whether the use stays within the licence is still a contract question for the law that governs the licence.
Can you resell a used software licence?
Sometimes. Once the owner has authorised the download of a copy and granted, for a fee reflecting its economic value, a right to use it for an unlimited period, it can no longer control resale (Case C-128/11, UsedSoft v Oracle, 3 July 2012).
This applies to copies first sold in the EU, and to resale within the EU (Article 4(2) Directive 2009/24/EC). The buyer is then a lawful acquirer. The seller must make its own copy unusable and may not split a multi-user licence (paragraphs 70 and 86). A subscription for a limited term does not meet the unlimited-period condition.
How can a software licence agreement be terminated?
Under Dutch law, a fixed-term licence ends when the term expires. An indefinite licence without termination rules is in principle terminable, but reasonableness and fairness may require a serious ground, a notice period or compensation (Supreme Court 28 October 2011, ECLI:NL:HR:2011:BQ9854, para. 3.5.1).
Under Dutch law, a termination clause is the starting point. Reasonableness and fairness can add requirements where law and contract leave room, and relying on the clause is barred if that would be unacceptable; an indefinite contract can also be non-terminable if the parties so intended (Supreme Court 2 February 2018, ECLI:NL:HR:2018:141, paras. 3.6.3 to 3.6.5, a patent licence case). In case of breach, a party may terminate (ontbinden) in whole or in part, as a rule only once the other party is in default, and not for a breach that, given its nature or minor significance, does not justify it (Article 6:265 Dutch Civil Code), and claim damages for an attributable failure (Article 6:74).
What do you do when a licensor says you exceeded your licence?
Take an audit or overuse claim seriously, but admit and pay nothing before the facts are clear. Use beyond the licence can be a breach of contract and, because running a program involves reproduction (Article 45i Copyright Act), also a copyright issue.
- Read the licence metric and the audit clause: what counts as a user or a device, and which audit procedure was agreed.
- Collect your own data on actual use, and check whether the licensor’s figures use the same metric.
- Check which law and which forum apply, and whether the contract sets a notice or escalation procedure.
- Weigh a commercial solution, such as buying extra licences on agreed terms, against the cost and time of a dispute.
If the dispute escalates, see our page on IT conflicts under Dutch law.
Example: a per-user licence and a Dutch customer
A hypothetical example. A software company in Germany licenses its planning software to a Dutch wholesaler for a fixed number of named users; the licence chooses Dutch law. The wholesaler grows and lets colleagues share log-ins. After an audit, the licensor claims fees for the extra users and threatens to terminate.
The outcome depends first on the contract: how “user” is defined, what the audit clause says about pricing extra use, and whether the licensor may terminate before the wholesaler is in default (Article 6:265(2) Dutch Civil Code). Because the parties are not both established in the Netherlands, the wholesaler cannot invoke the Dutch rules on standard terms (Article 6:247(2)). A clear metric and an agreed price for extra users could have prevented the dispute.
When should you involve a Dutch lawyer?
Involve a Dutch lawyer before you sign a licence your business depends on, when you license software to Dutch customers on your own terms, and as soon as a licensor raises an audit claim or threatens to terminate.
Also involve one when the copyright in software developed for you is unclear (Article 2(3) Copyright Act), or before you resell or buy used licences.
How does MAAK Advocaten help with software licence agreements?
When I review a software licence agreement, I look at three things first:
- what you may actually do with the software, and how that use is measured;
- what happens when the relationship ends: notice, transition, and access to your data and, where agreed, the source code;
- which law and which court or arbitral tribunal apply.
Then we bring the text in line with your commercial goal. MAAK Advocaten N.V. in Amsterdam drafts and negotiates software licences for licensors and licensees, advises on audit claims and acts in disputes in negotiations, summary proceedings, proceedings on the merits and arbitration, at first instance and on appeal.
Frequently asked questions about software licence agreements
Does a software licence agreement have to be in writing in the Netherlands?
Under Dutch law, generally not: offer and acceptance suffice (Article 6:217 Dutch Civil Code). An exclusive licence and a transfer of the copyright must be in writing (Article 2(3) Copyright Act). In a cross-border licence, another country’s form rules can also suffice (Article 11 Rome I Regulation). A signed licence remains the best evidence.
Can a licensor prohibit making a back-up copy?
No. A lawful user may make a back-up copy where needed for the intended use (Article 45k Copyright Act). Directive 2009/24/EC makes contract terms contrary to that rule null and void (Articles 5(2) and 8).
Is exceeding the number of licensed users a breach of contract?
Yes, if the licence limits the number of users. Under Dutch law, the licensor can claim damages for an attributable failure and terminate once the licensee is in default, unless the breach is too minor to justify termination (Articles 6:74 and 6:265 Dutch Civil Code). Running extra copies can also raise copyright questions (Article 45i Copyright Act).
Can a software licence for an indefinite period be terminated?
Under Dutch law, that depends on what the parties intended. An agreement for an indefinite period is in principle terminable if law and contract are silent, but it can be non-terminable if that was the parties’ intention, and the other party can then invoke reasonableness and fairness (Supreme Court 2 February 2018, ECLI:NL:HR:2018:141, paras. 3.6.2 and 3.6.5).
Do Dutch copyright contract rules protect software developers?
Largely not. The Dutch rules that protect authors in exploitation contracts, such as fair remuneration, do not apply to computer programs (Article 45n Copyright Act). One rule still applies to a self-employed developer who is an individual: a transfer or exclusive licence covers only the powers the contract states or that necessarily follow from it (Article 2(3) and (5) Copyright Act). Developers should therefore spell out what they transfer.
Primary sources
- Copyright Act (Auteurswet): Articles 2, 7, 10, 45i, 45j, 45k, 45l, 45m and 45n
- Dutch Civil Code (Burgerlijk Wetboek), Book 6: Articles 6:74, 6:217, 6:247, 6:248 and 6:265
- Directive 2009/24/EC on the legal protection of computer programs: Articles 4, 5, 6 and 8
- Regulation (EC) No 593/2008 (Rome I): Articles 3, 4 and 11
- Regulation (EC) No 864/2007 (Rome II): Article 8
- Regulation (EU) No 1215/2012 (Brussels I bis): Article 25
- Court of Justice of the EU 3 July 2012, Case C-128/11, UsedSoft v Oracle
- Court of Justice of the EU 24 September 2026, Case C-176/25, IU v BT
- Supreme Court (Hoge Raad) 28 October 2011, ECLI:NL:HR:2011:BQ9854
- Supreme Court 2 February 2018, ECLI:NL:HR:2018:141
Need a Dutch lawyer for a software licence agreement?
Licensing software to Dutch customers, or facing an audit claim from a licensor? Put your licence to me through my page as contract lawyer in the Netherlands. I will tell you what the licence allows, where the risks are and what to change, and act for you if a dispute arises. — Remko Roosjen
