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Doug Nebeker ("Doug")
I'm guessing what the answer will be on this one - but its the first time I have received such a request.
"I would like to purchase a copy of your software for ... work with a state government in the U.S. However, I am currently not allowed to purchase the software due to a clause in the EULA, as our state is not allowed to agree to be pulled into court in another state or country. Is there any way that we can negotiate a modification in this clause?"
I am based in the UK, and the following clause exists in my EULA - I guess this is the one they want changed:
"This EULA will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this EULA."
I believe it to be quite a standard clause.
My software retails for $150 and needless to say a EULA change would cost me somewhat more than that if I went ahead (my EULA is bespoke from a UK lawyer), and would potentially open me up to being sued in the US (?)
Just wondering if anyone else gets these sorts of requests and how they deal with them. The potential customer is based in SC, US.
My response would be no thanks.
I would reconsider if I was a shoe in for a $10 million purchase contract.
But no, I'm not consulting with my qualified international law IP attorney who charges $1200/hr and having him rewrite the EULA for a $150 sale.
In the specific case of US government sales, you want to say no ALWAYS since they have lots and lots of federal regulations you will suddenly be responsible for complying with at tremendous cost if you sell anything at all to them. It is worthwhile considering adding a "No sales to USA federal agencies" clause to your site.
I'd probably do it. But only if they pay immediately. No terms. No "government discounts." Full price only.
I get asked by government agencies to do this several times a year. In 10 years, never a problem with it.
The whole idea in building software is to sell it to people for money. Don't do all the work on the software only to let a piece of paper stand in your way. It's a very common request by US government agencies.
Wednesday, March 11, 2015
@Scott - I figured you'd say that, and I agree completely. Add to the legal costs of updating the EULA the fact that I would have to speak to my insurers, who would be very interested in a change to that clause, plus would also have to supply a custom installer, as the EULA is embedded there.
@Darren - I don't like turning down sales but at the end of the day the ultimate goal is to make money. This would be a money losing transaction, because there is no way that I would provide a modified EULA without having my lawyer write it. If I thought this could lead to some significant sales, then maybe - but it wouldn't.
I also agree with Scott. Out of curiosity I googled for "us govt agencies eula requirements" and it quickly became apparent that software companies that do a lot of govt. business have had to spend a bunch of resources on their EULA, and some have govt. riders to their EULA.
But I would reply explaining it is not worth it for one sale, then see how they respond. I have made several one license sales to some huge us govt. agencies and not one ever contacted me prior to sale -they just paid with mastercard like everyone else. this leads me to think they can all do this if they choose. Same experience with Canadian govt.
Best choice would be to tell them the EULA changes cost too much for a single copy (insurance, lawyer, etc.) AND offer to give them a FREE copy "because you understand they need your software but you can't provide custom terms for just one copy."
Since you would never be able to sell to them a single copy, you are effectively not losing anything, but by giving them a free copy, you earn some goodwill, save yourself potentially a lot of back and forth, and perhaps someday it will pay off.
Thursday, March 12, 2015
I don't know about your EULA, but mine has terms relating to rights to copy and distribute the application, reverse engineering, liability, etc.
If the OP's licence is anything like mine, I don't see how giving a free copy will help the situation. I'm sure he wants to be protected if some random crash results in someone losing a million dollars worth of data that hasn't been backed up.
Whenevr I have had requests to change the EULA, I have refused. Its just not worth it. Quite often they still buy.
Thursday, March 12, 2015
It doesn't change anything about the license situation, but it does make you look good and demonstrates your willingness to help.
- "Thanks but we really can't touch it unless your EULA change." (same situation, but with more goodwill)
- Government staffer takes it as a private copy and does his job with it - takes all the risk, which might be completely insignificant depending on what the software does. (Solves his problem, tons of goodwill)
- "Thanks, it's great." - the EULA wasn't really that big a deal. (Goodwill and they can't really bug you for support because they are a charity case)
- "We really need it. How much would it cost to change that clause?"
($$$ - the legal hassle of consulting a good lawyer isn't worth it for $150 but there is a price point at which it is)
All in all, there is no negative outcome and you come out looking good, so why not?
Friday, March 13, 2015
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