It depends on what you sold the customer. If it received a copy of the program with a licence for an unlimited period for a one-off price, the author's right to control further sale of that copy has been exhausted within the EU, and a prohibition in the licence terms will not prevent it. The customer must, however, make its own copy unusable and may not divide a multi-user licence. With a subscription, a licence limited in time or SaaS, no sale of a copy takes place and assignment of the licence is subject to the contract and to the author's consent.
A company bought ten perpetual licences to your program years ago, made part of its team redundant and is offering the licences it no longer needs to another company. Your EULA says the licence is non-transferable. The answer does not turn on how the prohibition is worded, but on whether you sold the customer the software in the legal sense or merely provided it with use limited in time.
Sale of a copy exhausts the author’s right
For computer programs, copyright law (Act No. 185/2015 Coll.) adopts the European rule on exhaustion of rights:
The author’s right to authorise the public distribution of the original of a computer program or of a copy of a computer program by transfer of the right of use shall lapse, for the territory of a Member State or of a Contracting State, upon the first lawful transfer for consideration of the original of the computer program or of a copy of the computer program in the territory of a Member State or of a Contracting State, in respect of the original of the computer program or the copy of the computer program which was the subject of that transfer.
— Section 88 of Act No. 185/2015 Coll. (unofficial English translation)
In its judgment in C-128/11 UsedSoft of 3 July 2012, the Court of Justice of the EU interpreted the corresponding Article 4(2) of Directive 2009/24/EC as meaning that exhaustion also occurs with a program downloaded from the internet where the rightholder, for a price corresponding to the economic value of the copy, conferred a right to use it for an unlimited period. The subsequent acquirer is then a lawful acquirer of the program and may install it. From the perspective of EU law this is a sale, regardless of the fact that the document is called a licence agreement.
Conditions the selling customer must satisfy
Exhaustion concerns the particular copy, not unlimited copying. The Court therefore stressed that the first acquirer must make its own copy unusable at the time of resale, failing which it would interfere with the reproduction right (paragraphs 70 and 78 of the judgment). If it bought a licence for a larger number of users than it needs, it cannot, by invoking exhaustion, divide the licence and sell the rights for only some of the users (paragraphs 69 and 86). According to the Court, the rightholder may ensure that the seller’s copy is made unusable by any available technical means, for instance product keys (paragraphs 79 and 87).
When exhaustion does not occur
If the customer pays a subscription, the licence is limited in time, or the software runs as a service in your infrastructure, no transfer of a copy for consideration takes place and the rule on exhaustion does not apply. The general regime of the licence agreement then governs:
The licensee may assign the licence by contract only with the prior consent of the author. The licensee is obliged to inform the author of the assignment of the licence and of the identity of the assignee without undue delay. Unless otherwise agreed, the author’s consent is not required on the sale of a business or part of a business of which the licence forms part.
— Section 72(2) of Act No. 185/2015 Coll. (unofficial English translation)
Likewise, a licensee may grant a sub-licence only with your prior consent (Section 72(1)). On the sale of a business or part of a business of which the licence forms part, your consent is not required unless you agreed otherwise in the contract; if this matters to you, it must be addressed expressly in the terms.
What this means for your terms
With perpetual licences to downloaded software, a prohibition on resale in the EULA will not prevail over the rule on exhaustion. Instead, the terms should contain a duty to notify the transfer, to uninstall and make the licensee’s own copy unusable, a prohibition on dividing the licence, and a rule that support and updates are a separate service with their own terms. If you wish to control resale in practice, consider a subscription business model; a change of model, however, has consequences for consumers too and must be thought through as a whole.
We prepare licence terms matching your sales model under licence terms (EULA), and framework licences for corporate customers under the software and licence agreement. What licence terms cannot prohibit even for installed software is explained in the question on banning back-up copies and decompilation in a EULA.
This answer provides general information on the law as at 12 September 2026. It does not constitute legal services or replace an assessment of an individual case. The details of your situation may differ. Book a consultation to discuss them.
