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EULA for my product

Let me put it in a colorful way. I'm about to release my software product, as 30-day trialware. I've done the installer and there is a very nice empty screen coming from the default installer which expects me to put a EULA there for the user to agree. It even prevents the user from installing it if he/she doesn't agree to the text.

I'm undecided about what to do. Take an EULA from another similar product with all the legal mumbo-jumbo. Or buy an EULA template from www.nolopress.com (if they indeed have one). Or contact a lawyer (but that seems overkill).

I'm tempted to just state:

"This software is trialware. You can use it for free from the day you first install it, until 30 natural days afterwards. If you want to use it past that date, you have to register in order to get a license. If you have already registered, then the license you got with your registration applies instead of this."

And then, give out something a tad more formal when the user registers.

I'm also thinking about copy-protection, trialware-enforcement, etc. I'm thinking about going with esellerate who provide customers with an SDK that does this, even if they are a bit more expensive.

I'm alternatively considering simply not enforcing any of that. People who want to, will crack it or get cracked copies. People who want to buy it, will buy it. And it's so much nicer to actual customers.

Any comments are welcome.

In case anyone's interested, the product is ViEmu - more details in my blog.
J Send private email
Saturday, July 16, 2005
 
 
As a follow-up, I just found this thread:

http://discuss.joelonsoftware.com/default.asp?biz.5.104475

and this nice EULA model:

http://www.gripe2ed.com/scoop/story/2005/3/25/02054/3216

I still would like to hear JoSer's thoughts.
J Send private email
Saturday, July 16, 2005
 
 
We are currently using a license agreemeent from the NOLO book "Web & Software Development: A Legal Guide".  You can probably find it used on Amazon or Half.com, just make sure it includes the CD or disk.  The book has many useful forms including license agreements, NDA's, non-compete, consulting, and other contracts. 

A nice thing about the book is that it actually explains each section of the EULA in a way that does not require a law degree.  Since each software company is different (some sell on physical media, others dont... some offer money back guarantees and others dont... some have trial versions and others dont...), it helps you customize the agreement.

I would caution you against just searching online and copying one from another software product as that company may have different policies than yours.  We did that in our first version of our software years ago.  After actually reading through it, we found a vague sentence towards the end that mentioned a money back guarantee, which our company did not offer due to the distribution methods we used.  Fortunately, no one called us on it since most people don't read EULA's anyways.

Good luck and hope this helps

Terrell
Terrell Send private email
Saturday, July 16, 2005
 
 
Before you put a lot of effort into it, you should realize that unless your users agree to the EULA at the time they _purchase_ the product (and not just at the time they install it), the EULA isn't likely to be legally enforceable.
Kyralessa Send private email
Saturday, July 16, 2005
 
 
"Yadda yadda yadda and the EULA isn't likely to be legally enforceable."

Perhaps not, but he still needs one.
Eric Sink Send private email
Saturday, July 16, 2005
 
 
Terrell, thanks for sharing :)

And Kyralesa: that means, then, that the "trialware install" could go with something as simple as the note I wrote above, with no actual effect?

I'd actually be very glad to *not* present the potential customer with a long, boring, unreadable, yet intimidating, lot of legal mumbo-jumbo.
J Send private email
Saturday, July 16, 2005
 
 
I agree with Eric.

It took me about a half an hour to put our agreement together.  Worst case scenario if something happens and the agreement isn't enforceable then I wasted 30 mins putting together a EULA.  As they say "An ounce of prevention is worth a pound of cure".

Kyralessa, are you saying that the EULA is not enforceable unless agreed to at time of purchase?  Have you seen this in practice?  I have seen EULA's available at computer stores and never been asked to sign or read an EULA before I purchased software.
Terrell Send private email
Saturday, July 16, 2005
 
 
For now I'm using a EULA adapted from Ed Gripe's FEULA .90.1 (linked above). I've compared it to many of the EULA's for the products on my PC and it seems to cover what I need.

I modified the terms of the state law coverage and explicitly stated that it could be installed on "one additional computer" instead of the slightly less specific original wording "another computer".

I may change the EULA in the future, but I'll be in development and beta for the next few months, so I have some time to consider it more fully.

Many on-line software vendors are requiring that you agree to the EULA before the download. I'm sure this is to enforce the legality and enforcibility of the EUKLA.

I see this with many big companies (e.g., the Google API), but smaller ones may be afraid that they'll turn away a certain percentage of their potential buyers if they do this.
Cowboy coder
Saturday, July 16, 2005
 
 
Terrell,

I'm basing that on Cem Kaner's book "Bad Software"; he, in turn, bases it on the Uniform Commercial Code, which says (among other things) that terms have to be disclosed at time of sale.  If your product's box says your word processing software does mail merges, but the EULA the customer sees when he installs, _after_ buying the software, says there's no guarantee the software does anything at all, or even runs, your customer is still entitled to (at a minimum) a refund if the software doesn't do mail merges.

Kaner says if EULAs as commonly used were in fact legally enforceable, it would be akin to selling a house, and then (after closing) moving away with the doors and posting a notice inside saying "This house is sold without doors.  Buyer's act of moving in constitutes acceptance of this agreement.  If buyer disagrees with these terms, he must return the house within X days."  The mystery is why people think such a subterfuge would work with software when it doesn't work anywhere else.


Eric,

Why?
Kyralessa Send private email
Saturday, July 16, 2005
 
 
You should have a EULA, especially for products that may interest corporations. Most people will ignore it, it may not be legally enforceable, but potential buyers expect to see one. If your product has no EULA, or a very unusual EULA, then some potential buyers may question how seriously your business is run.

Some people do read the EULA. For very large orders you may even be asked to use a different EULA (one created by the customer), or to make changes to your EULA that offer the customer additional protection. You don't want to miss out on these big orders, so get a EULA and make it look relatively "standard".
Tones
Sunday, July 17, 2005
 
 
So how many court rulings against EULA's has Cem Kaner been responsible for? Oh, you mean he's not a judge? Or a lawyer? Or even a lawmaker of sorts? Yeah, just another quack with a blog and a book.

"The mystery is why people think such a subterfuge would work with software when it doesn't work anywhere else."

The real mystery is why people believe some quack on the internet with a blog says that EULA's aren't enforceable because they violate the Uniform Commercial Code. The UCC doesn't even cover software (yet). The last time I heard, they are STILL working on laws that are separate from the UCC. But then again, that's been going on for many years with no real end in sight.

Don't listen to people who spread FUD about EULA's. As others have said, get yourself a decent EULA. Most of it will be enforceable as long as you provide a means for the user to return the product for a full refund if they don't agree to the terms. It doesn't matter "when" they agree as long as you can prove that they had to agree in order to use/buy the product. If you are really concerned about it, hire a lawyer.
EULA lover
Sunday, July 17, 2005
 
 
Tones, thank you. I guess that makes it. It would simply be weird not to have a regular EULA. I'll probably adapt the one to which I posted the link above.

Thanks everyone.
J Send private email
Sunday, July 17, 2005
 
 
"The UCC doesn't even cover software (yet)."

What causes you to think this?

"The last time I heard, they are STILL working on laws that are separate from the UCC. But then again, that's been going on for many years with no real end in sight."

What would make you think that the UCC doesn't apply unless and until other laws governing software exist?

"As others have said, get yourself a decent EULA. Most of it will be enforceable as long as you provide a means for the user to return the product for a full refund if they don't agree to the terms. It doesn't matter "when" they agree as long as you can prove that they had to agree in order to use/buy the product."

So I take it you _are_ a lawyer?  If not, what's your reason for believing this?  Again, a EULA imposes terms _after_ time of sale.  In what other area of business would that be enforceable?
Kyralessa Send private email
Sunday, July 17, 2005
 
 
You are the one making claims about EULA's being covered under the UCC (see the UCITA for more info). So what makes YOU think this? It's up to each individual state anyway so I don't see how you can make a blanket statement about this kind of coverage. Let's see some facts instead of just the usually FUD.

If you have some information that PROVES that it is COMPLETELY worthless to have a EULA then post it. Yes, some parts of EULA's can be found to be invalid, but that doesn't negate the benefit of having one.

The day Microsoft gives up on the EULA is the day that I will too. Until then, I'm going to take discussions like this one with a grain of salt.
EULA lover
Sunday, July 17, 2005
 
 
I gave you my source already.  You could call him a "quack" if you like, but I could just as easily call you one; neither of us will have proved anything.
Kyralessa Send private email
Sunday, July 17, 2005
 
 
I am an admitted quack.

And the only thing that can be proven is that neither of us could possibly prove that EULA's are completely valid or completely void. Our courts can't make up their minds on this issue. And even if they did, simple changes to wording, packaging, or selling practices can easily send the whole mess back into a tailspin. EULA's in some form or another are here to stay.
EULA lover
Sunday, July 17, 2005
 
 
how many people here would actually take any action if their EULA isn't met?

we already have copyright protection which allows for the licensing mechanism, what further rights does the EULA grant us?  what further rights do we actually need?  what further rights do we expect?
Jesus H Christ
Sunday, July 17, 2005
 
 
Well, the answer to that greatly depends on how much you are selling your software for. I work for a company that sells customized software to businesses for $100K+. Our "EULA" is really a contract so much of this discussion doesn't apply to us. The "end user" basically has to sign off on the contract/EULA before we would give them the software anyway.

With all of that said, yes, we would persue it if someone did not abide by our EULA. That would basically mean that they broke the contract. However, if we sold shrink wrapped software to the masses we probably couldn't pursue common violations. It would just be too costly. Microsoft is constantly turning the other cheek for this same reason.

That's what makes all of this anti-EULA stuff such nonsense. No one really reads EULA's and any consumer who returns software because they didn't agree with the EULA is just trying to make a name for themselves by testing the system. Show me someone who returned Microsoft Windows because they didn't agree with the EULA and I'll show you someone who has lost touch with reality. We all know that there isn't too much Microsoft could do to fight minor infringements. We also all know that software is a buyer beware scenario for consumers. It is slightly different for business but that is another issue.

I don't know why people pretend or believe that Microsoft or any other big name software vendor is somehow going to be made to give away their rights or be forced to stand behind their software. If it ever does come to that, the small ISV is pretty much dead. A sure fire way to kill off real competition is to invalidate EULA's. The smaller guys simply can't afford to produce software if they have to be liable for damages.
EULA lover
Sunday, July 17, 2005
 
 
"The smaller guys simply can't afford to produce software if they have to be liable for damages."

Thats an interesting point, Im not sure that the EULA is what protects us from damages though?

I think that there is every chance that the EULA is not binding, simply because its provided after the purchase..by case law thats simply not possible.

So...what *is* the case law for liability for damages on softwarE?  does anyone know of any relevant cases/interesting outcomes in the US?
Jesus H Christ
Sunday, July 17, 2005
 
 
"Eric,  Why?"

Software is copyrighted material.  The owner retains the copyright (the ownership of the material), and transfers certain rights to the user.  There should be something which describes what rights are being transferred and the terms of said transfer.
Eric Sink Send private email
Sunday, July 17, 2005
 
 
Oh yeah, and one more thing:  I'm not a lawyer.  I'm just a very opinionated non-lawyer.
Eric Sink Send private email
Sunday, July 17, 2005
 
 
There are two purposes to a EULA:

1.  How much of my rights (as an author) I'm giving to the customer.

2. How much I'm trying to limit my liability to the user.

Eric's point addresses #1. CEM Kaner's point, is I think, addressing #2.

Oh, and Cem Kaner isn't some quack. He's pretty well known lawyer and policy advisor in the software field:
http://www.kaner.com/resume.html
Mr. Analogy {uISV} Send private email
Sunday, July 17, 2005
 
 
Add #3: how many rights is the EULA trying take away from the customer.

Many EULAs try to take away rights that the customer already  has under copyright law.
NoName
Monday, July 18, 2005
 
 

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