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BizIPEsq., Attorney
Category: Intellectual Property Law
Satisfied Customers: 996
Experience:  I am a tech attorney and I represent clients with technology, internet and intellectual property matters
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I live in Massachusetts and wrote a Mac application that I

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I live in Massachusetts and wrote a Mac application that I will sell via a website and wonder about creating an end user license agreement (clickwrap). I've read a Nolo book that suggests that the license should be agreed to before the software is downloaded. My conundrum is that I have an online vendor that will function as a reseller to deal with all the tax issues but they don't seem to have a feature to display a license before download. My software has a 14 day trial and I could display the license upon initial install and force the user to agree or decline. For comparison, I’ve researched a number of other small software vendors in the Mac market, some even use this reseller, and none of them display a license upon installation. I don’t want to be the only developer to throw up a license agreement for the user to read before they use the software. Only one of these small software vendors even has a license agreement in the installed software menus and none has a license on their website.

So do I even need a EULA as I’m protected by copyright? I’m concerned about liability and bugs and the like. My software will be sold for $20 and provides a full screen interface for another vendor’s software for watching and recording TV. My software is improving upon the full screen experience.

BizIPEsq. : Hello, I will be assisting you
BizIPEsq. : copyright law is only a small part of the general provisions of a EULA.
Customer: Hi, I'm here
BizIPEsq. : The fact that other vendors don't have a EULA is not a wise legal decision on their end and not something you should emulate
BizIPEsq. : so you may be the only one with a EULA but you will the one protected.
BizIPEsq. : Consider a EULA as your insurance policy. 99% of the time you don;t need it but when you do then you will be happy you had one in place
BizIPEsq. : In addition, you are in a high risk area of content recording and operating without a EULA where the user can do any illegal with your software would expose you directly to the risk
BizIPEsq. : Therefore, you should strive to display the EULA and have the user agree to it at some point during the installation process
Customer: The user downloads the application from my website. During installation I could display the license with "accept" or "decline", of course only "accept" completes the install while "decline" quits. Before the 14 day trial expires the user competes the purchase from the reseller and downloads a license key file. How does that scenario sound?
BizIPEsq. : that's excellent. This will satisfy the click-wrap condition of having the user actively acknowledge their acquiescence to the EULA.
BizIPEsq. : to the extent possible, display a link to the license again at the time of purchase and put a disclaimer that says something to the effect that by purchasing this you acknowledge your agreement to the terms and conditions which can be found here...
Customer: I guess I could have a button on my website that says "buy now" and then display a screen with what you said and a button to go to the resellers site. Sound reasonable?
BizIPEsq. : that's a good idea. You can lock the trial after 14 days and have the button visible.
Customer: If this user can purchase via the application in trial mode or locked mode (trial over) and via the website, I guess I should do the same thing -- display this license acknowledgment verbiage you suggested?
BizIPEsq. : correct
Customer: OK, I've almost finished cobbling together a license agreement from a few sources and I'll have my lawyer review it. Should save me money by providing a document as a starting point?
Customer: Anything else I should be aware of?
BizIPEsq. : It's a good idea to review other EULAs for similar sites and give your attorney a starting point. It will definitively save you money
BizIPEsq. : Thank you for allowing me to assist you
BizIPEsq. : please rate my answer
BizIPEsq. : without your rating I do not get compensated for my work
Customer: Thanks
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