It is an End User License Agreement (EULA), which is provided to authorize the use of a commercial or off-the-shelf (without modification or customization) software. A clickwrap or clickthrough agreement presents the terms to a user on a computer screen and requires the user to indicate acceptance by taking a specified on-screen action, typically either:
• Clicking on "I accept" button.
• Checking "I accept" box before submitting a form.
When the user tries to use or install the software, the license terms usually will be displayed and the user will be required to accept it before being able to proceed with installation. If the user does not indicate acceptance, the user will be denied access to the software. These agreements are usually drafted from the perspective of the licensor and are not intended to be negotiated by the parties or modified for different users.
To ensure the user is legally bound by the EULA, it must be implemented in such way that puts the user on notice about its existence and requires the user to affirmatively or impliedly assent to its terms. The courts have held that obtaining user’s assent to the terms through a clickthrough agreement, which requires the user to take a specific action to explicitly agree to the license, creates an enforceable contract.
Licensees are usually not allowed to make any modifications or changes to the software. Neither may they distribute the software beyond their immediate use. Licensors often provide basic maintenance and support services for the off-the-shelf software to add value to their clients and maintain control over the product.
The EULA agreements must be modified for different industries or types of the software. Some products are subject to specific legislation or regulatory control. An experienced business attorney should always be consulted and assist with drafting this legally binding agreement.
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