End User Licence Agreement (EULA) (New Zealand)

An End User Licence Agreement (EULA) in New Zealand grants a licensee permission to use specified software on defined terms, fees, and territory while the owner retains ownership under the Companies Act 1993.

Under the Copyright Act 1994 of New Zealand, a computer program is protected as a literary work from the moment it is created in a fixed form, without the need for registration. The Licensor, as the copyright owner, has the exclusive right to reproduce, communicate, distribute, and licence the software. A EULA is the mechanism through which the Licensor grants End Users permission to use the software without infringing copyright. Without a EULA (or some equivalent licence), End Users have no legal right to install or use the software, and doing so could constitute copyright infringement.

New Zealand’s Consumer Guarantees Act 1993 (CGA) is important to the content of EULAs for consumer software. The CGA implies certain non-excludable guarantees into consumer contracts, including that goods and services will be of acceptable quality, fit for purpose, and match any description given. For software supplied to consumers, the guarantee of acceptable quality means that the software must work as a reasonable consumer would expect, be safe, and be durable. These guarantees apply regardless of any disclaimer in the EULA, and software publishers cannot contractually exclude them for consumer transactions. However, where the End User is acquiring the software for business purposes, the parties may contractually exclude the CGA guarantees.

The Privacy Act 2020 is another critical consideration for New Zealand software publishers. Modern software applications frequently collect data about End Users, including personal information such as names, email addresses, usage patterns, device information, and diagnostic data. The Privacy Act 2020 requires organisations that handle personal information to comply with the 13 Information Privacy Principles (IPPs). The EULA must clearly disclose what personal information is collected, the purpose of collection, and how it will be used and protected. Where the software sends data to overseas servers, IPP 12 imposes restrictions on cross-border disclosure of personal information.

New Zealand’s technology sector is diverse and includes desktop applications, mobile apps for iOS and Android, web-based SaaS platforms, enterprise software, and specialised industry tools. EULAs are used across all of these deployment models, though the specific provisions vary depending on whether the software is delivered by download, physical media, cloud hosting, or mobile app stores. Apple’s App Store and Google Play both require developers to have their own EULAs, in addition to the platform’s standard terms. New Zealand developers distributing through these platforms should confirm their EULA is compatible with the platform’s requirements while also reflecting New Zealand law.

The Harmful Digital Communications Act 2015 (HDCA) is also relevant where software includes communication, social, or content-sharing features. The HDCA prohibits the sending of communications that cause serious emotional distress and gives the District Court power to make orders against perpetrators. A EULA should prohibit End Users from using the software in ways that would constitute a harmful digital communication under the HDCA.

The Fair Trading Act 1986 is important for software publishers making representations about their software’s features and performance. Misleading or deceptive conduct, including exaggerated claims about software capabilities, is prohibited. EULAs should confirm that the description of the software is accurate and consistent with the software’s actual functionality.

A EULA is needed whenever a software publisher makes software available to End Users, regardless of whether the software is free, open source, or commercially licensed. The need for a EULA arises from the Copyright Act 1994: without a licence, End Users have no legal basis to install or use copyright-protected software.

Commercially licensed software sold by New Zealand companies requires a EULA to define the scope of the licence (how many devices, how many users, for what purposes), the payment terms, the update and support policy, and the limitations of the Licensor’s liability. The EULA is often the only written contract between the software publisher and the End User, making it essential that it be thorough and clearly drafted.

Free and freemium software also requires a EULA. While there is no fee for a free software product, the Licensor still needs to control how the software is used, protect its intellectual property, limit its liability for defects, and address privacy obligations. Many free software products generate revenue through advertising, data analytics, or premium feature upsells, and the EULA should address these revenue models transparently.

SaaS (Software as a Service) platforms delivered via web browser or mobile application require a EULA or Terms of Service that address the subscription model, the Licensor’s right to modify or discontinue the service, data handling obligations under the Privacy Act 2020, and service level commitments. For enterprise SaaS agreements, a separate master service agreement may be used alongside the EULA.

Mobile applications distributed through the Apple App Store or Google Play must comply with those platforms’ requirements regarding EULAs. Both Apple and Google require developers to have their own EULA, and both platforms provide standard EULA templates that developers may use or adapt. New Zealand developers distributing through these platforms should customise any standard templates to confirm compliance with New Zealand law, particularly the Consumer Guarantees Act 1993 and the Privacy Act 2020.

Open-source software released by New Zealand organisations also requires a licence, though this may be an open-source licence (such as MIT, Apache 2.0, or GPL) rather than a proprietary EULA. Organisations that release open-source software should carefully select the licence that best suits their objectives regarding attribution, commercial use, modification, and distribution.

Industry-specific software in areas such as healthcare, financial services, legal practice management, and agricultural management may require additional provisions addressing industry-specific regulatory obligations. For example, software processing health information must address the Health Information Privacy Code 2020, while financial services software must address the obligations under the Financial Markets Conduct Act 2013. EULAs for these specialised applications should include provisions reflecting the applicable regulatory environment.

A thorough EULA for use in New Zealand should contain the following key provisions to confirm it is legally enforceable and adequately protects the Licensor’s interests while complying with applicable consumer law.

The licence grant clause is the core of the EULA. It defines the scope of the right granted to the End User: whether the licence is single-user or multi-user, whether it covers desktop, mobile, or cloud deployment, whether it is perpetual or subscription-based, and any geographic or use restrictions. The licence should be expressly described as non-exclusive, non-transferable, and revocable to preserve the Licensor’s control over the software. All intellectual property rights should remain exclusively with the Licensor under the Copyright Act 1994.

The permitted uses clause specifies what the End User may do with the software, including installation on a specified number of devices, making archival backup copies (as permitted by section 80 of the Copyright Act 1994), and transferring the software to authorised personnel within the End User’s organisation.

The prohibited uses clause lists activities that are expressly not permitted, including reverse engineering, decompilation, and disassembly (subject to the section 80A interoperability exception), sublicensing, distribution, sale, or rental of the software, removal or modification of copyright notices, use of the software to develop a competing product, and circumvention of technical protection measures.

The intellectual property clause confirms the Licensor’s exclusive ownership of copyright and all other IP rights in the software under the Copyright Act 1994 and makes clear that no ownership rights are transferred to the End User. It should also address the Licensor’s trade marks and prohibit unauthorised use.

The consumer guarantees clause must distinguish between consumer and business End Users. For consumer End Users, the non-excludable guarantees under the Consumer Guarantees Act 1993 must be preserved. For business End Users, the parties may agree to exclude those guarantees to the extent permitted by law.

The limitation of liability clause caps the Licensor’s total exposure for claims arising under the EULA. The cap should be set at a commercially reasonable level, such as the total licence fees paid in the preceding 12 months. Indirect and consequential losses, including loss of data and loss of profits, should be expressly excluded for business End Users. The disclaimer clause limits the Licensor’s express and implied warranties subject to the consumer guarantees.

The privacy clause discloses what personal information the software collects, the purpose of collection, and how it is handled under the Privacy Act 2020 and the IPPs. It should reference the Licensor’s Privacy Policy and explain any data sharing with third parties or cross-border transfers.

The termination clause specifies when the EULA may be terminated, what obligations survive termination (such as IP ownership and limitation of liability), and what the End User must do upon termination (such as uninstalling the software and destroying all copies). The governing law clause confirms New Zealand law applies and specifies the courts of New Zealand as having jurisdiction. The forms-legal.com End User Licence Agreement (EULA) (New Zealand) provides a ready-to-use template that meets New Zealand legal requirements.