A St. George Attorney Explains: What is an End-User License Agreement?
Everyone has probably at least seen an end-user license agreement (EULA), especially if they’ve ever downloaded or installed any type of software from the Internet. An EULA is a little window that pops up right before completion of a software installation, asking that the end user agree to certain conditions before installation is completed.
While these are often ignored by end users, a good St. George attorney familiar with EULA’s could tell you that there are some important terms and conditions included in these agreements which warrant close scrutiny, or at least a closer reading than most people give them. They are intended to protect the developer or software company from situations which can arise through usage or sharing of the software.
The intent of an EULA is to serve as a contract between yourself and end users wishing to make use of your application, and you are allowing them the right to use, but not purchase, your software – provided they adhere to the conditions outlined in the EULA. While there are many terms which are more or less standardized in an EULA, it is very important that you also personalize the agreement to address specific aspects of the software you have developed. This is precisely the area where a knowledgeable St. George attorney could provide invaluable assistance, through prior experience with EULA-related laws and regulations.
What terms are covered in an EULA?
Here are some of the terms commonly included in an EULA, which can serve as the basis for your own agreement, before personalization.
This product must not be publicly criticized – this term is often included in database programs and other utilities which forbid the user from comparing the product with any other, or criticizing it publicly in any way. The process known as ‘benchmarking’ covers this precise situation, i.e. comparing the performance of some software program to another one, and making the results publicly known. This protects your software from unfavorable comparisons, and loss of market credibility.
Method of updating for revisions and new releases – this specifies the manner in which future revisions to your application are to take place, for instance whether it will be automatic or only through user consent. In the case of software companies, it can also specify that recurring annual charges may be automatically applied, unless the user were to opt out of the subscription license.
This product must not be reverse-engineered – reverse-engineering is a process that takes apart a device, or in this case software, to see what makes it work. This term can prevent end users from creating new products which are built on the technology provided in your own software, so that you are not giving away the intellectual rights you earned with your own development.
This product must not be used in conjunction with any other vendor’s products – the intent of this provision is to prevent users from changing your software in any way, or to alter its performance by combining it with software from a third party. The product you created is licensed to users on its own merits, and should not be used to create a new or hybrid product without your consent.
You are not responsible for damage done to user’s device – this condition of the EULA is intended to provide blanket protection for yourself or your software company, so that you cannot be cited in any litigation stemming from damage done to the end-user’s computer. There are an endless number of computer configurations established on end user machines, and there is literally no way to predict how downloading or installation of your software might affect any other program or application on those machines, so it is necessary to disclaim liability for potentially negative outcomes. This is one of the most important points of any EULA, so getting the language precisely correct might well be worth having it reviewed by your St. George attorney.
Why would I need an EULA?
As you might infer from the typical clauses referenced above, the EULA agreement can be a very powerful shield for a software developer or company, and you might want to take advantage of every possible protection afforded by an end-user license agreement.
In most cases, there is literally nothing else which stands between your software product and countless numbers of end users on the Internet, so you need to make sure you include everything in this agreement which is necessary to protecting yourself and the application you have developed.
Your St. George attorney can help ensure that when your software application is distributed across the entire Internet, you have all appropriate restrictions imposed on the software’s usage, on limitations for any liability, and that you have included clauses for the protection of your intellectual property rights.
The EULA licenses but does not sell an application to the user – this is an important point which allows you to maintain control of your application, and how it can be used. The license granted to someone who installs your application only allows them to use the app if they agree to all terms and conditions detailed in the EULA, and it explicitly states that users are not buying your product, but only making use of it.
Undesirable usage is prevented – you can specify that your application must not be used for illegal activities, or for any type of cyber crime like hacking, screen-scraping, or other specifically detailed actions. In fact, any undesirable activities engaged in by a user of your application could be considered by you to constitute grounds for immediate revocation of the license, if you choose to specify this.
Your liability is limited – this is an important way for you to protect yourself from the possibility of lawsuits, should any damaging results occur via the installation of your software. By including this condition, you essentially place all installation risks upon the end-user, and exclude yourself from liability.
Your EULA can disclaim warranties – with this condition, you can disclaim all performance expectations, for instance zero downtime, and stipulate that the software is licensed as is, with no guarantees. Again, this places all risk or expectation of performance on the user. Since you cannot predict how your software will operate on any given user machine, you must protect yourself against possible poor performance on user-configured machines.
You retain the right to terminate a license – although the normal point of any EULA is to grant a license to the user, this term allows you the freedom to also terminate that license. It can be as broad as you want it to be, even stipulating that you retain the right to terminate the license at any time and for any reason, essentially retaining full control over distribution and usage of your software. Your St. George attorney can provide expert advice on how to state this clearly and to greatest effect.
If you need advice, a review or even creation of an end-user license agreement, James Elegante can provide the expertise you need. A seasoned professional with global experience, he is now working with clients in southern Utah and southern Nevada. Call today for a consultation. 801-599-7999