SAAS Agreement vs. Software EULA. Which One Do I need?

As a SAAS lawyer, I sometimes run into the issue of "Do I need a Software as a Service Subscription Services Agreement (SAAS Agreement) or Software EULA?"  In other words, what should I start with (EULA sample or template, or SAAS agreement sample or template). 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.

• 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.
• 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 EULA, as they are licensing their software.
• Also, some models may be more of a true hybrid, with a SAAS agreement for their online subscription service, and then a EULA for the software that will be downloaded and used with the subscription 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 Software EULAs.

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