As a SAAS lawyer, I sometimes run into the issue of "Do I need a Subscription Services Agreement (SAAS Agreement) or a Software Agreement (EULA, etc.)?" It is pretty easy, as it all depends on the primary item provided. Let me explain.
If a company is trying to define their model in their end user agreement and are unsure of the form agreement to start with, they should figure out if there is any software downloaded by the users, or if they are only providing software-as-a-service through a browser. While many companies have hybrids (some services and some downloaded software) I think it should be viewed as what is the company primarily providing to their customers.
If they are primarily providing software through a browser, but there is some software downloaded (think Go-to-Meeting or Webex), then they would need a Subscription Services Agreement, as they really are in the SAAS business and not purely licensing their software.
However, if they are primarily providing software which will be downloaded, but there are some services provided (maybe support/maintenance/training/some services through the web), then they would need an a software agreement (EULA, etc.), as they are licensing their a software and it is less likely to be seen as a service.
Every software based company should figure out which form of end user agreement they need, as their customers will be asked about it, and they need to have it right! A few thoughts, from a SAAS attorney on SAAS agreements and end user software agreements.
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