Need some information
Trupti
(Querist) 16 November 2009
This query is : Resolved
Respected Experts
Can someone help me with the draft of the "Licence User Agreement"?
Thanking you for your quick response and with kind regards
Mrs. Trupti Patiil
A V Vishal
(Expert) 16 November 2009
All the contracts, in India are governed by the provisions of the Indian Contract Act 1872.We will not be discussing the provisions of the Contract Act here but will discuss Software License agreement by which the Software Developer e.g. developer of a software product (like Microsoft) will give license to the user of such software.
The most commonly used EULAs are of the "shrink-wrap" or "break the seal" variety types.
EULAs in this form are printed:
On product packaging,
A diskette or CD-ROM container (such as an envelope or a plastic case),
A card inside the package,
A page of the user manual.
The user is asked to "accept" the terms of the agreement by performing a certain action designated on the package or in the EULA, such as:
Tearing open the plastic wrapper covering the box,
Breaking the seal on the diskette container
Installing or using the software.
The user can refuse to accept and enter into the agreement by returning the software product for a complete refund.
CLICKWRAP EULA
Software programmers also have EULA via media other than paper. One popular method displays the EULA on the computer screen the first time a user operates the software. The user can then accept the EULA's terms by pressing a certain key, clicking on a "yes" button icon or by clicking I Accept icon or taking some other specified action. This form of contract is popularly known as Clickwrap agreement
Presenting EULAs via the computer screen is especially important now that more software is being distributed electronically through Internet and other media. For this form of distribution, the EULA often appears on the user's screen before the software is downloaded to the user. If the user assents to the on-screen EULA (usually by typing "yes" or "I accept," clicking on an icon with similar words, or simply pressing the "Enter" key), the user may install the software.
Some features of EULA explained.
I. It grants normally a nonexclusive, nontransferable personal license to the user by the software owner to use the software subject to the agreement.
II. It is not a sale of Software. The licensee does not get rights as that of the purchaser of goods.
III. It prohibits user to do certain things for example Reverse engineering, Decompiling, making additional copies, renting, leasing etc.
IV. The software owner disclaims certain warranties.
V. If the terms of the EULA are not acceptable to the consumer then the software product can be returned to the vendor and license fees will be refunded to the buyer in case of off the self-product.
VI. In case of online media the license terms should be disclosed in advance of a buyer's purchase of the product or service. In such case of online EULA, the consumer if not accepting the terms will not be required to make any payment.
A principal concern for computer software producers is providing adequate protection for their programs. Generally, software is written by a programmer in source-code form, which is in a language understandable by humans. Once the source code is completed, it is processed through a compiler that produces the object code. The object code is comprehensible to the computer on which it runs but not to humans. Because of this unique way computer programs are created, the programs are susceptible to "reverse engineering" or "decompiling." The user of a program may take the object-code version of the program and process it through a decompiler, which produces a higher-level source-code version of the program. Humans can with some effort, understand this source-code version. Thus, the secrets of the software producer can be discovered by anybody who is willing, or who has a financial incentive, to go through the process of reverse engineering. As a result, software producers include an express provision prohibiting disassembly or reverse engineering in their EULA.
Warranty Disclaimers
Vendors, through the use of shrinkwrap licenses, seek to disclaim both implied and express warranties by including a provision claiming that the program is provided "as is" without any type of warranty. Other licensing agreements limit the warranty for a specified amount of time, usually for ninety days, one year, or both. These provisions will be subject to the laws of land.
Shrinkwrap License may broadly cover following provisions.
Product name (the "Software")
Limited Nonexclusive, personal License
Restrictions on copying
No Reverse engineering, Decompiling, making additional copies, renting, leasing etc allowed.
Limited Warranty
Limited Remedy
No Incidental or Consequential Damages
Termination
Entire Agreement, etc.
General clauses
Jurisdiction
The courts in USA have in some landmark decisions have covered the EULA mainly the Shrinkwrap type. Indian courts have so far not considered this unique type of Contracts in any landmark case. We are here discussing the way the industry is doing business by using EULA.
Following points may be kept in mind.
The Indian Laws must be considered before drafting EULA. Blindly copying draft of American EULA may not be a good idea in India.
Must take enough care that the user had the chance of reading the terms and then accepting the EULA in the way suggested.
While packaging care must be taken to draw attention of the user to the EULA.
However, you query is restricted to only License User agreement, in absence of further details it is not possible to furnish the draft.
Raj Kumar Makkad
(Expert) 16 November 2009
it shall be better if you furnish specific terms of license user agreement so that suitable draft may be supplied.
G V S Jagannadha Rao
(Expert) 16 November 2009
What is it you are licencing? A software like computer programme or a TV serial. A leave and licence can also be granted in respect of a residential premises. If you are not clear in asking the question, the relies you get would only confuse you.
Brother Vishal had already exerted himself enough on this. I appreciate his concern.
