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MPLABX EULA

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tony4l
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2012/02/01 14:22:45 (permalink)
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MPLABX EULA


Section 1c) of the MPLAB X EULA:

Microchip's authorized representatives will have the right to reasonably inspect, announced or unannounced and in its sole and absolute discretion, Licensee's premises and to audit Licensee's records and inventory of Licensee's use of the Software, whether located on Licensee's premises or elsewhere, at any time, in order to ensure Licensee's adherence to the terms of this Agreement.


I read this as: By installing MPLAB X you agree that, at any time, Microchip can send an "authorized representative" and you have to let him into your offices and grant him access to your computers. 

I find this to be over the top. What do you guys think about this? Is this something you're ok with?



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#1

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    McPgD
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    Re:MPLABX EULA 2012/02/01 22:48:57 (permalink)
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    It simply stinks, but that's something we have to live with. Here in Europe we wouldn't accept such language dealing with an European company, but I guess American companies can't live without it.
    #2
    DarioG
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    Re:MPLABX EULA 2012/02/02 02:33:41 (permalink)
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    Hey, that's great Smile
    Wonder how they would be "welcomed" into any italian company... ahem grin

    GENOVA :D :D ! GODO
    #3
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    Re:MPLABX EULA 2012/02/02 05:29:51 (permalink)
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    Microchip at it best...
    #4
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    Re:MPLABX EULA 2012/02/02 07:33:45 (permalink)
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    erm, does that mean I can't use microchip stuff for anything under an NDA?
    #5
    Lurch
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    Re:MPLABX EULA 2012/02/02 08:34:23 (permalink)
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    I think you'll find this sort of statement in EULAs from all companies that have gone public, since they are obligated to their shareholders to prevent piracy and IP theft. It could even be a part of the Basel II compliance regulations, in which case they must put something like that in their EULAs. The penalties for not excercising "due diligence" have risen, and companies have to avoid being charged for that. Probably nothing to get too excited about unless you are doing something "shady". Ask your MCHP representative for clarification.
    #6
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    Re:MPLABX EULA 2012/02/02 12:38:11 (permalink)
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    The idea that anything can be 'clarified' there is bollocks. The EULA is extremely clear and precise. 

    What strikes me is that MPLAB X is FREE. And, for the most part, not even the work of Microchip. So the comparison to other (paid) software products doesn't hold. 



    I agree with McPgD. Coming from Europe, this is something that would not be accepted. I'll have to check with the legal department of my customer since this might have far-reaching consequences when enacted. 

    *sigh*

    I can see another decade of MPLAB8 coming up. 



    #7
    ToddR
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    Re:MPLABX EULA 2012/02/03 10:27:20 (permalink)
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    How do they know you installed it and used it?
    #8
    frankcf1
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    Re:MPLABX EULA 2012/02/03 10:32:46 (permalink)
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    If that's true I won't be using it.
    #9
    chimera1978
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    Re:MPLABX EULA 2012/02/03 14:32:35 (permalink)
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    Here is information I received from my FAE when I questioned him on it:

    MPLAB is software that is free of charge and part of the agreement is that a user will not use it to develop a competitor’s product.
    This makes sense to me since it really isn’t fair if used in that way, right?
    <> It is very similar to our Application Libraries that we give away free as well.
    A lot of time, resources and money go into this stuff and this good-will really shouldn’t be abused. 
     
    So, the audit clause you reference is simply a way for Microchip to insure that a cease-and-desist letter is carried out “if” necessary.
    I am sure you guys have your fair share of legal considerations; it’s just part of the business world.
     
    Now, that all said, if you have any rebuttals or suggestions, please let me know and I’ll make sure our legal dept. gets your feedback.
    It really is important to know where customers aren’t happy and the reasons why…

    #10
    frankcf1
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    Re:MPLABX EULA 2012/02/03 16:15:25 (permalink)
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    I do all of my work under NDAs. Even the FDA has limits on what they can look at. Why would I give Microchip unlimited access.
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    Re:MPLABX EULA 2012/02/03 18:12:58 (permalink)
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    How can Microchip think that it can go and look at my projects/data/code/... ? Come on, it must be a joke! So Microchip go and get the Netbeans code, rename it to MPLABX, and than put there a EULA that says to me that I will give Microchip the total power to go and play with my toys, my data, my work! At least in some European Countries even with this EULA Microchip can't do it, if they want to do it, they will have to go to authorities first.
    #12
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    Re:MPLABX EULA 2012/02/03 19:35:58 (permalink)
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    Can anyone cite a reference (or from personal experience) in which a EULA was actually enforced by the company who drafted the EULA? Remember it costs money for a company to pursue a suspected infraction and it will only be done if it makes business sense ($). What is the actual concern here -- that one cannot abide by the terms of the agreement? Is this a mere philosophical debate or are people really concerned about the terms in the real world?
    #13
    paulhutch
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    Re:MPLABX EULA 2012/02/05 11:45:23 (permalink)
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    In response to Lurch @ #5:

    I have not found any other vendor's EULA with this extreme of an audit clause in an internet search. I did find that Microchip's dsPIC dev kit and Maestro Software licenses have this clause. There is even a post on this forum from June 2009 with no replies pointing it out in the dsPIC dev kit license. 
    http://www.microchip.com/forums/m428684.aspx 

    I suspect that since the response from users was essentially non-existent in over two years since first being noticed, Microchip have become convinced that this clause does not bother the vast majority of their customers. With that belief they would feel it is an easy decision to add this clause to MPLAB and get their enhanced legal rights. I certainly can't fault them on this, if I was in the same position I'd be tempted to consider adding it. 

    The EULAs I've found on the net that have audit clauses are Autodesk and VMware however those have important differences. Autodesk does not include the "unannounced" provision, they give 15 days notice. 
    Autodesk or its authorized representative will have the right, on fifteen (15) days’ prior notice to Licensee, to inspect Licensee’s records, systems and facilities, including machine IDs, serial numbers and related information.
     
    This at least prevents the potential PR disaster that could happen if Microchip shows up unannounced and you are meeting with important customers or vendors. Unfortunately too many people follow the common wisdom that there's no smoke without fire and would automatically assume your company has done something illegal since you're being searched. 

    VMware's audit clause also does not have an "unannounced" provision and restricts their own rights to auditing. 

    Searching my entire hard disk full of applications yielded 200 license agreements from a wide range of commercial paid, commercial free and open source software. Of those only three had an audit clause, two from Intel and one from HP, and both companies audit clauses are much more customer friendly than the Microchip clause. 
    Intel shall have the right to inspect or have an independent auditor inspect Your relevant records to verify Your compliance with the terms and conditions of this Agreement.
     
    HP, or its designee(s), shall, during regular business hours at Customer’s offices and in such a manner that does not interfere with Customer’s normal business activities, have the right to inspect and audit, or have an inspection and audit, of the number of copies of Software Used by Customer, the computers on which the Software, if any, is installed and the number of users Using any such Software.
     

    If there are any examples out there of EULA audit clauses as extreme as this clause from Microchip I would appreciate hearing about them.   


    FYI - The forum was refusing to allow me to edit the post using Firefox, it would crash and dump me out to the Microchip homepage. So I switched over to IE8 and it let me get this post somewhat edited but twice it caused IE8 to completely take down my TCP/IP connection and I had to reboot WinXP SP3. Finally I've fired up Google Chrome and now it seems to be working OK.
    post edited by paulhutch - 2012/02/05 13:14:38
    #14
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    Re:MPLABX EULA 2012/02/05 13:15:45 (permalink)
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    What are the exact terms in the EULA that one is concerned that they cannot abide by?
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    Re:MPLABX EULA 2012/02/05 13:19:39 (permalink)
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    What are the exact terms in the EULA that one is concerned that they cannot abide by -- in terms of violating the EULA and causing an infraction? I'm not talking about not agreeing with Microchip's response on a suspected infraction, but rather, what are people actually concerned about in terms of thinking they will violate the EULA?
    #16
    Lurch
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    Re:MPLABX EULA 2012/02/05 17:33:37 (permalink)
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    @"cite a reference": personal experience at a company in Germany ca. 8 years ago. Microsoft offered group licensing (OPEN something) for desktops. They sent KPMG - an auditing company - to count licenses to prove that we were not exceeding the declared number. There was a similar clause in their EULA that, of course, nobody ever read. Several other companies were also audited. KPMG called ahead to set up an appointment, though. Not really any rough stuff.
    #17
    tony4l
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    Re:MPLABX EULA 2012/02/06 02:16:47 (permalink)
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    @chimera: thanks! 

    i think it's important to compare the intention and the means that MCHP uses to enforce it. 

    The intention is fine with me. 

    The means, however, are way over the top. 
    Even if the licensor (MCHP) was paying me or my company, I would under no circumstances sign such a statement to anyone. A tool manufacturer will not enter my premises and/or search my files or computers. 

    From where I come from, an EULA is valid and can be acted upon with force, so, as a professional, I must take this seriously. I do understand though if some hobbyists don't really care. 

    The example of "counting licenses" @Lurch is something that can be done really easily/superficially esp. in a corporate context. And it's also understandable, given that those licenses cost a couple of hundred if not thousand dollars each. MPLAB X, on the opposite, is free.

    Finding proof of someone trying to develop a competing product goes WAY deeper than counting licenses. It involves analyzing the content of source code, scanning harddisks and inspecting the work, which, in most cases, happens to be under an NDA. I simply cannot agree to that EULA without violating the NDA by granting Microchip the right to inspect my work.

    To make this constructive, I also did some research and confirm that audit clauses are a standard part of Software Licenses. I understand Microchip's intent and I support it. I appreciate the time and effort that has been put into MPLAB X. 

    On the licensing side, something that would sit way better with me would be:
    If you are a business or organization, you agree that upon request from Licensor or Licensor’s authorized representative, you will within thirty (30) days fully document and certify that use of any and all Licensed Software at the time of the request is in conformity with your valid licenses from Licensor.

    I will contact my local Microchip rep and ask him contact their legal dept because the EULA is literally unacceptable. 

    If you agree with that, please do the same!



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    #18
    Lurch
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    Re:MPLABX EULA 2012/02/08 06:47:40 (permalink)
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    Maybe they'll just change the wording, if you ask. As an aside: I just read the EULA for a new version of an anti-virus software produced in Germany: "14. Avira Audit Rights Avira reserves the right, from time to time, to audit you to ensure that you are not in violation of this EULA. Therefore, by entering into this EULA, you agree to the transfer of information related to such audits to Avira’s offices. ". Apparently everyone's getting into the act.
    #19
    tony4l
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    Re:MPLABX EULA 2012/02/08 07:40:35 (permalink)
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    sure, audit statements are all over the place. and they're completely fine. Otherwise, how do you enforce a license if you don't reserve the right to check? 

    And a "transfer of information" sounds appropriate for a free IDE. Other than an "unannounced visit of authorized representatives"! Though I hope that Microchip wouldn't send the kind of authorized reps in black suits and with a russian accent (forgive me mbedder) ;)

    Let's hope that this reaches the person in charge. Maybe the person who builds the text into the installer can pass it on to the responsible department too :)

    Cheers,
    T


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