Why is a freeware EULA considered a contract if issuer is not receiving adequate consideration? I understand that a EULA can be a contract if the user agrees to compensate the issuer for using the software, but if the software is freeware, then the issuer gains nothing of value. Without the issuer gaining anything of value, how is there adequate consideration/why is the agreement still considered a contract? Again, I understand that consideration need not be monetary, it can be the other party waiving a right. But that right must exist prior to entering into the agreement. The EULA grants the user the right to use the product so prior to entering into the agreement the user has no right to use it to begin with.
The user gains the use of the software, the EULA issuer gains the limitations on how the user of the freeware will use it, that for example, prevent the freeware user from exploiting the issuer's labor by reusing it for profit. Consideration doesn't have to be monetary. As a practical matter, sometimes the business model is to give the software away as a loss leader and to have the issuer make their money with training and consulting on how to use it. Also, even in the absence of consideration, a promise upon which the person benefiting from the promise reasonably relies is enforceable under the doctrine of promissory estoppel. Further, EULA stands for &quot;end user license agreement&quot; and there are many times that license agreements aren't full fledged contracts. They are merely limited grants of permission to use something, often not even amounting to a full fledged property right or contract right. For example, if I let my neighbor walk into my living room while we talk and have tea, the right of the neighbor to be in my living room is called a license, even though it is not a contract. A license can be embedded in a contract, but it doesn't have to be.
If a contract sometimes uses the wrong name, is it still valid? Yes. It is valid as long as the contract as a whole permits identifying the parties (unequivocally) and ascertaining their role with respect to the contract. Using "Contractor" and "Consultant" interchangeably despite only the former being explicitly defined seems a bit sloppy, but it does not by itself alter or invalidate the meaning of the contract. The excerpt you reproduce is self-explanatory. Its first sentence identifies the parties, and there are only two. Thus, there is no reasonable way to dispute that the second sentence means "Contractor shall indemnify Company", since a clause of the sort "he will indemnify himself" makes no sense. Moreover, the legal definitions of Indemnitor and Indemnitee (Black's Law Dictionary) clearly make reference to "the person" (who protects or is protected, accordingly) and "the other" (that is, not to self).
There is no contract between you (the licensee) and the licensor of the software. The creator of the open source software just says "here's the software, you may use it if you like, as long as you fulfil some conditions. ". No contract, no liability. I think the developer would only be liable if they intentionally created software that causes damage. (Which has happened, some open source browser plugins have recently been modified to run bitcoin mining software, or worse. I suppose the miscreants could follow all the GPL rules or whatever license is used).
A contract that tells one party or another to do an illegal thing is void ab initio: courts will not recognize it or give force to it. A contract which doesnt explicitly tell either party to do something illegal but if during the course of fulfilling either party's end of the bargain they commit an illegal act it is up to the courts discretion what happens, whether to find the contract void or to maintain the contract (its a matter of public policy whether they allow the contract to continue existing, or if the contract was such that illegal acts were expected to be commited then the court will likely remder it void) Either way, you cannot indemnify someone for committing an illegal act.
Data, as it happens in law, can also be owned. That's why we have a discipline called "Intellectual Property". It is a "thing" - like other properties like cars, houses etc., someone owns it. Now, does the transfer of a computer also includes a transfer of data ownership stored inside the computer? Practically speaking, this clause is very unlikely to be included in the agreement when a computer is sold. It didn't explicitly say "yes" (you may use anything you find in the hard drive), but it didn't explicitly say "no" either, hence the question. Looking at data, we can list a few legal concepts related to them: Data collection Data storage Data usage Copyright The exact details vary by jurisdiction, but in general: Data must be collected through legal means Data must be stored in a secure manner to protect the data subjects Data must only be used by purposes agreed during data collection by the data subjects Copyright is not transferrable without signatures "License to use" is not transferrable either Example 1, let's say a software is installed in the computer, with an appropriate license. This license was purchased by the original owner, therefore the software company licensed him to use the software, not you. The agreement does not have your name on it. Example 2, the original owner is a photographer and have some beautiful photos stored on the hard drive. By virtue of Copyright, he is the author and copyright owner of these photos. There has been no signed document describing the transfer of copyright ownership to you, nor license you to use these photos in any way. Example 3, the computer belongs to a company, and client information is stored on the hard drive. By transferring the computer to a third-party without wiping the drive clean, the company fails to use reasonable measures to protect the data of their clients. If somebody uses this data, then he is using data collected through illegal means, and can be prosecuted. A counter example would be someone transferring ownership of the computer for the purpose of transferring the data inside. Note this is different: it is clear to both parties that the purpose of the exchange is to obtain the data stored inside the medium. The ownership of the storage medium and the data inside are separated. Likewise any intellectual property associated to a physical object. When you go to the store and purchase a Bluray of a movie, you buy the physical ownership of the plastic disc + permission (license) to view the contents of the disc in a private setting. You do not buy the copyright of the movie even though it is in your hand. To conclude, the answer is No - transfer of ownership of a storage medium has nothing whatsoever about the transfer of ownership of the data inside.
No contract can limit a court's jurisdiction An NDA is a contract: it cannot prevent the application of the judicial process. Should your dispute reach a courtroom, the NDA and the documents it seeks to protect are all admissible and you should subpoena them from the defendant and submit those copies to the court (that way you are not breaking the terms of the NDA). What is not admissible is bona fide "without prejudice" documents: that is documents that contain admissions and offers made in a genuine attempt to settle a dispute. This privilege is established by the context of the document, not by if it does or does not have the words "without prejudice" on it (except, of course, that their presence/absence is part of the context).
According to Nolo.com five requirements must be met for an agreement to be binding and enforceable by a court. Your scenario meets one requirement at best (see comments). Therefore, there is no legally binding agreement. Contract Requirements To be enforceable by a court, every contract (whether written or oral) must meet several requirements. Let's take a look at each of them. Consideration. As Cole Porter wrote in the song, True Love, &quot;You give to me and I give to you.&quot; That sums up consideration. Each party has to promise or provide something of value to the other. Without this exchange, there is no contract. (Learn more in Nolo's article Consideration: Every Contract Needs It.) Offer and acceptance. There must be a clear or definite offer to contract (&quot;Do you want to buy this?&quot;) and an unqualified acceptance (&quot;Yes!&quot;). Legal purpose. The purpose of the agreement must not violate the law. For example, you won't be able to enforce a loan agreement that charges interest in excess of what is allowed by usury laws or a service agreement to hire someone to rob a bank or kill your mother-in-law. Capable parties. To be &quot;capable&quot; of making a contract, the parties must understand what they're doing. For example, there is a presumption that minors and insane people usually don't know what they're doing and, for that reason, contracts they enter into won't be enforced under certain circumstances. (Learn more in Nolo's article Who Lacks the Capacity to Contract?) Mutual assent. This is also sometimes referred to as a &quot;meeting of the minds.&quot; The contracting parties must intend to be bound by their agreement and must agree on the essential terms. If this isn't enough, there is another common law defense available to such a defendant called estoppel. Courts look to the behavior of the parties to determine if there was an actual contract or not. If the behavior does not fit the alleged agreement, then the plaintiff is estopped from enforcing the words on paper.
To answer the question in your title: Yes, software licenses are copyrighted. They are written works that involve (significant, expert) creative effort to create. The best solution would be for Grammarly to hire a lawyer and say "we want a new EULA. We think this one covers a number of points our current one doesn't". Most legal documents will be copyright for the same reason (there may be a few that are so stereotypical that there is essentially no creative effort in putting them together).