[Novalug] OT: EULA restrictions

[Ross Patterson]

At 16:04 6/14/2007, Bonnie Dalzell wrote:
>Anyone here have knowledge of how legal strange EULA restrictions can be?

Various non-lawyers have their own opinions about whether EULAs are 
enforceable at all or not.  Assuming they are, so are these.

>8. You may not use the SOFTWARE to produce printed pedigrees for third
>parties under any circumstances except as provided in clause 7.
>
>[Clause 7 says you have to pay them a lot more money if the identicle
>program is being used for commercial purposes].

Yeah, that's we used to know as the "service bureau clause".  It's 
been enforced lots of times in contract law by lots of commercial 
software vendors.  The intent is usually to prevent you from offering 
a service that eats into the company's sales revenue.  Whether the 
value of the program comes from its processing or your data isn't 
relevant in their eyes.

>Is this sort of  restriction pretty much the same as saying "the user
>of this word processing program cannot type out a letter for a
>third party?

Yup.

>NOTICE: The demo version, or any version of XXXXXX (or its product
>variants), may not be downloaded by, or provided to, any competitor or
>third party associated with a competitor, nor any party planning to become
>a competitor. Competitors may not use, review or analyse XXXXXXX (or its
>product variants) either in whole or in part.  By clicking on the
>"Download Now!" button on this page you agree to the afore mentioned
>terms.

I've seen that one enforced on a number of occasions, starting 35 
years ago when my employer cut a deal with SPSS to benchmark against 
SAS on our systems.  We actually *were* a service bureau, and paid 
the higher prices for SAS, but they nearly cancelled the contract for 
breach when they found out.  Our customers would have been highly 
ticked off if that had happened.

If a EULA has any standing under law, you can pretty much sign away 
any right you're not forbidden from waiving (e.g., certain consumer 
protections) and you're considered to have done so 
voluntarily.  Unless, of course, someone had Luca Brazzi hold a 
pistol to your head while you signed the check.

Ross