Navigating end-user license agreements

Navigating end-user license agreements

Chapter 11 Bankruptcy truck fleet

Data usage and ownership is not regulated. You may have heard the old industry adage that “fleets own the data,” but adages don’t hold up in court. All that matters is what’s in the end-user license agreement (EULA) that you and your service providers agreed upon.

“I can’t emphasize this enough: Have a lawyer to look at those documents even if it’s a ‘click to accept’ agreement. It’s imperative,” said Marcus Harris, partner at Taft Stettinius and Hollister LLP, a law firm based in Chicago. “EULAs are typically very complicated and drafted in a one-sided and onerous way that doesn’t give the customer a lot of control. I would absolutely urge people to have them reviewed by a lawyer because you have to have the right contractual provisions in the agreement to cover data and to make sure that you have relief in the event that it’s improperly disclosed.”

Obligatory disclaimer! This article does not constitute, or substitute for, legal advice. Even though Harris shared his thoughts, it is not legal advice specific to your situation. Every agreement is going to be different. With that in mind, here are a few tips for navigating end-user license agreements.

Do your due diligence on the front end

If you agree to an EULA without understanding its terms, and down the line you discover that your data is being used in a way that could cause business damages, that’s not a fight you want to have in court.

“You end up arguing that the contract is unconscionable; that is not enforceable,” Harris said. “That’s an uphill battle because courts are going to say: ‘You made your bed, and now you have to lie in it. You had the opportunity to negotiate, review, revise the contract and you didn’t. So I’m not going to help you now.’ That’s a pretty hard line, but that’s what judges do.”

Even if it’s a ‘click to accept’ agreement, like in an app?

“Even if it’s click to accept. Absolutely,” Harris said. “That’s as valid as any other contract.”

Make sure ‘confidentiality’ is clearly defined

Every fleet will have a different data policy and guidelines for how data is used, just as every software and solutions provider has its own EULA. You’ll want to make sure that there is confidentiality language within the agreement before you accept it.

“You have to have a definition of ‘Confidentiality’ that leans on the type of information that is important to you; one permits it from being disclosed generally so it’s treated as confidential,” Harris said. “You may even want to treat it as Trade Secret information, if it’s that important, and have different provisions dealing with Trade Secret information.”

That means defining specific data sets and their level of confidentiality. If you have a data set that you need more stringent control over, that needs to be clearly defined.

“If it’s just a general confidentiality agreement, then the other side’s going to argue that they didn’t know and that the agreement didn’t include that type of data in its definition,” Harris said.

Rights in court

Harris also said that fleets should consider their rights in court if there is a data breach of some kind.

“You’re going to want to make sure that there’s some acknowledgement that the customer can go in the court and get an injunction to protect their information,” he said. “Money damages may not be enough, and what you want is the company to stop disclosing the data, have affirmative obligation to go get the data back or prevent the other third party from disclosing it. If your contract doesn’t have that obligation, then you’re out of luck. You’re just out of luck.”

Limitation of liability

Ensuring that any obligation in regard to proprietary, protected data and confidential information is defined within the Limitation of Liability is key to recovering the full monetary damages associated with the breach of contract.

“In these types of contracts, it’s typically the amount of money that you pay for the software in the six months prior to the liability issue. That may sound okay, but let’s say you spent money on software on January 1, but you haven’t actually spent any money for six months and you only paid ‘support fees,’” Harris said. “You may not have any monetary recourse, and these are set up that way on purpose.”

Marcus Harris is a partner at Taft Stettinius and Hollister LLP and an expert on copyright and data issues. He can be reached at [email protected].

Fleet Equipment is here to help. Our December issue is packed with data-related stories, including:

First things first: Do you really own your trucks’ data?

Geotab shares its vision of a data-driven future here.

Data integration: Who has access to your data?

Lastly, we crown data as our ‘Equipment Trend of the Year’ here.

You May Also Like

Trimble to acquire Transporeon

The acquisition aims to strengthen and accelerate its connect and scale strategy.

business-handshake-generic

Trimble announced that it has agreed to acquire Transporeon, a cloud-based transportation management software platform, in an all-cash transaction valued at €1.88 billion. Transporeon's software platform provides modular applications that power a global network for 145,000 carriers and 1,400 shippers and load recipients with an integrated suite of best-in-class sourcing, planning, execution, monitoring and settlement tools. Trimble will acquire Transporeon from Hg, a software and services investor and current majority shareholder in the business.

An overview of the TPMS and ATIS offerings

There is a wide variety of tire inflation technology available, both in TPMS and ATIS form. Let’s take a quick look at some of the offerings.

New ways to help your trucks maintain the proper tire pressure

Let’s take a look at some of the new products that are helping trucking companies get the most ROI out of their tires.

Tire-Care-Generic-800x400
Using the proper coolant is essential to protect engines

The solution is training. Anyone who may add coolant to a radiator needs to understand the type of coolant required by the vehicle and the danger of topping off with the wrong coolant.

coolant-colors-800x400
Manufacturers continue to roll out electric medium-duty trucks

Peterbilt, Kenworth, Navistar, Daimler, Freightliner and Cummins are a few of the companies making recent leaps in electric medium-duty truck development.

Peterbilt-EV-220-800x400

Other Posts

Peterbilt showcases advanced truck technology at CES

Peterbilt’s most advanced trucks were a CES showstopper.

Daimler Truck expands carbon-neutral energy supply at production sites

By 2039, the company aims to achieve CO₂-neutral production in all plants and business units worldwide.

Samsara shares 2023 trucking industry predictions

From the crystal ball: Successful fleet electrification will rely on driver buy-in and preparedness. 

2023-predictions-1400