End User License Gems

satosphere writes "TG Daily has an article on EULA Gems, priceless statements that companies want you to agree to in their End User License Agreement." From the article: "You agree, if purchasing by credit card or charge card, that you permanently and irrevocably waive any and all right to cause a 'chargeback' ... You agree that, if you institute such a "chargeback", it constitutes a material violation of this license, and damages Company in ways impossible to calculate, and with long-term adverse effects to the Company."

Comments

BEFORE YOU POST

[Anonymous Coward]

Make sure you read this before posting.

Something Awful

[Anonymous Coward]

Reminds me of Something Awful's recent lampoon of the same subject. Nobody reads these things because they're all in legalese. No wonder companies think they can slide in anything. And what are the users going to do, not accept the terms?

Re:Something Awful

[badasscat]

And what are the users going to do, not accept the terms?

Well, in the case of the chargeback example, they can accept the terms knowing what they've agreed to is completely unenforceable.

Say you agree to that in a EULA, then the software won't install and you ask for a refund, which the company will not provide. You call the credit card company and say "they sold me a defective product and won't give me my money back" and the card company calls the software maker to see what's up. The software maker says "but the customer agreed not to do a chargeback!" You know what the CC company's gonna do?

They're gonna laugh in the software company's face. Then they're gonna do a chargeback.

Your relationship is with the CC company. You can't un-agree with a third party to something you've already agreed to with your CC company. Because the CC company is under no obligation whatsoever to abide by that; they haven't agreed to alter their policies to fit this EULA. Their only obligation is to their customers with which they have prior agreements.

Now, IANAL, but I've got plenty of experience dealing with CC companies (including handling chargebacks) through previous jobs I've had, and this is pretty basic contract law anyway. Contracts are between two parties; if you've got a contract that you're trying to apply to a third party but that they haven't signed, it's meaningless. I can't write up a contract that says "you agree that your sister will never ask me to borrow money" and expect that that actually obligates your sister not to do anything, even if you do sign it.

It's just worth pointing out that some people subscribe to this fallacy that anything you put in a contract is binding as long as it's signed. That's just not the case. You can't agree to something that's illegal, you can't sign away most rights given to you under the law, and you can't agree to something on behalf of a third party (unless that third party also signs, as in a guarantor type situation). The purpose of a contract is to get two people to agree in writing to something under the law. A lot of these companies are apparently using EULA's these days to get people to agree to things that are outside the law, but those EULA's just cannot be enforced.

(This is not to say no EULA can be enforced; obviously, we've seen that they can be. But a EULA has to be written properly just like any other contract; you can't just stick random stuff in there.)

Breach Of Contract Is Not A Crime

[John Hasler]

Where do these doofuses get the notion that you can go to jail for failing to comply with the terms of a contract?

Great damage to the company

[jrockway]

My cell phone contract contained similar language. It stated that cancelling the contract before the term was up would could "cause damage to the Company that is difficult to determine, but is approximately $150". I was ready to pay this (because US Cellular is the absolute worst phone company EVER... I live in Chicago and didn't even get good reception at US Cellular field!), until I read the whole contract and realized that my cell phone company screwed up -- they said my term was "0 months" (not 2 years like I thought). Needless to say, I called them and pointed this out. They said they'd call back, but I haven't heard from them in months. I haven't gotten a bill either, so I guess they just silently admitted defeat.

Funny how the contract can actually screw the company over sometimes :)

Java

[mcgroarty]

If memory serves, the Java user agreement requires you to acknowledge that any deaths resulting from Java use are on your own hands. The wording is less direct, working through the logic that Java isn't to be used where somebody's life is on the line, but it still makes me nervous. :)

Sony

[Space cowboy]

There was a clause in an NDA I signed with Sony that said something along the lines of "In the event of You disclosing material which is considered proprietary under this agreement, the Company will seek maximum damages, and financial reparation may not be sufficient".

That scared me slightly... I still signed though. And I made sure not to have any first-born (hah! As if I had the chance back then :-)

Simon

no habla ingles

[davidwr]

Scenario #1:
I asked my non-English-speaking friend to buy me a new computer and install OpenOffice.

Of course he got the English-language MS-Windows and of course he had to walk through all the EULA and activation stuff. He'd watched someone else do it before so he knew what buttons to press but didn't understand a word of what was on the screen.

He didn't know enough to tell me he'd just signed away a bunch of rights on my behalf.

Who if anyone is liable if I violate the EULA - the very EULA that neither me nor my friend is aware of.

Scenario #2, except instead of me asking him, he did it on his own and gave me the PC w/ OO installed for Christmas.

email EUL's

[timmarhy]

one thing that has always amused me is company's polices of putting notices at the bottom of emails stating things like "you may not disclose the contents of this email to 3rd parties" etc etc.

firstly, i do not agree to any of these terms prior to recieving said email, so they aren't binding in anyway. it's like trusting a contract in my face and claiming now that i have seen it, i most obey it.

if someone sends me something, that email is my property, i'll do what i bloody like with it.

EUL inside

[timmarhy]

i remmeber once i got this piece of software with a notice "by opening this packaging you agree to the EUL contained inside"

just ponder that shit for a moment. the contract is inside, they aren't letting you view it before claiming you agree to it. i'd be willing to bet if you voilated some part of it and they took you to court they would quickly find ALL their EUL stipulations would be thrown out for basic breaches of contract law.

Per machine vs per user licensing

[WIAKywbfatw]

The reason for this is because Microsoft licenses for Windows XP (and all of its operating systems) are per machine (or per processor), whereas its licenses for Office and other applications are per user.

Hence, it's permissable for an individual to install a single copy of Office on both their desktop and laptop without requiring more than one license, as long as both aren't used simultaneously. However, installing Windows XP on both those machines would always require two licenses, regardless of how the machines are used.

One side effect of this is that people who use Office at work can normally buy a copy of Office to use at home for a nominal fee. For example, under the terms of Microsoft's licensing as it applies to her mid-sized employer, my girlfriend is entitled to purchase a copy of Office for around £10, which covers the cost of media, postage and packaging and processing her request.

Re:Depends on who initiated the chargeback

[dgatwood]

In this case, it's more like "you agree to not ask your sister to borrow money from me, even though I am under a binding contract with your sister not to ask you not to ask her."

In other words, report these clowns to Visa and they're likely to get their merchant account revoked. I strongly suspect that attempting to circumvent the terms of your merchant account agreement would constitute a violation of the terms of said agreement....

MS Front Page License?

[commodoresloat]

Didn't MS have a license with Front Page for a while that said that it violated the license to use the product to create web pages critical of MS? As I recall they took the clause out after people complained about it, but the fact that they even had the audacity to consider it is troubling.

Re:MBFS has an EULA for their website too

[Bwooce]

Their EULA has actually toned down since 1998...

In some of them it says:

"You agree that, even after the ten-year non-compete period listed above, that
any product you may create will not in any way resemble or act like the Software,
will not be able to read or convert the databases created or used by the
Software, will not use any of the same methodologies employed in the creation
and operation of the software, and will not use any trademark, logo or name
used in the Software."

So if you thought the DMCA was bad...try this guy. I'm afraid this all helps to form my opinion that John Tamburo is a dickwad. Apparently a serial bankrupt dickwad.

http://66.160.129.140/scoop/story/2004/5/13/0529/9 7735 is interesting too.

But you KNOW what to do!

[ajs318]

If you don't like the licence, don't use the software -- and tell the vendors what you think about it. Bitch about the terms by all means, but at least make sure someone is listening who can do something about them.

I made the decision awhile ago to use only software that guarantees me my Four Freedoms. The chances are that such software will come under either the GPL or a BSD-like licence. Both these licences are easy to understand and do not seek to abridge your statutory rights.

The only way EULA madness will be brought to an end, is when people stop accepting it. Otherwise it's going to come to something like this:

1. You do not own the SOFTWARE. You have purchased a temporary, limited licence to use the SOFTWARE contingent upon your meeting certain conditions set by the LICENSOR. The LICENSOR may revoke this licence at any time.
2. You may install the SOFTWARE on one (1) computer, which shall become the property of the LICENSOR. You may not make or attempt to make any backup or archival copies. You may use the software only for the purposes approved by the LICENSOR and described in the accompanying documentation.
3. The SOFTWARE contains the proprietary secrets of the LICENSOR. You may not reverse-engineer, disassemble, decompile, de-obfuscate or otherwise attempt to understand the SOFTWARE, nor by any means attempt to make the SOFTWARE comprehensible to a human being or any other living organism.
4. You are not permitted to develop software which competes directly or indirectly with the SOFTWARE nor any other product supplied by the LICENSOR. Direct competition includes without limitation any software which attempts to perform one or more functions which could be performed using the SOFTWARE or any other product supplied by the LICENSOR. Indirect competition includes without limitation any software which attempts to use any key combination, mouse movement or other technique identical or similar to a technique found within the SOFTWARE or any other product supplied by the LICENSOR to perform a similar or different function.
5. The instructions and techniques for using the SOFTWARE are the proprietary secrets of the LICENSOR. You are privy to such knowledge only as long as you remain bound by this licence agreement and only to the extent that you may use the SOFTWARE in a manner approved by the LICENSOR. You may not communicate to any third party any details concerning the operation or use of SOFTWARE irrespective of whether or not such party may be independently licenced to use the SOFTWARE.
6. The operational details of the SOFTWARE are the proprietary secrets of the LICENSOR. You are not permitted to use any technique to attempt to discover any fact connected with the operation of the SOFTWARE. Examples of prohibited acts include:
   1. Reading the directory listing from the media upon which the SOFTWARE is delivered.
   2. Quantitatively or qualitatively examining data travelling into or out of the computer upon which the SOFTWARE is running.
   3. Attempting to measure the speed of the computer upon which the SOFTWARE is running.
   4. Measuring the temperature of any electronic component in the computer while the SOFTWARE is running.
7. Everything you create with the aid of the SOFTWARE shall be the property of the LICENSOR. All Intellectual Property rights embodied in anything you create with the aid SOFTWARE shall be deemed to belong to the LICENSOR but may at the LICENSOR's sole discretion be licenced back to you so long as your licence to use the SOFTWARE remains in force.
8. This licence may be terminated at any time by the LICENSOR, for any reason and without prior notice. Upon termination of the licence, you must immediately:
   1. Cease using the SOFTWARE and destroy all copies, including the documentation, together with the computer upon which the SOFTWARE has been installed, to the satisfaction of the LICENSOR.
   2. Forget everything you know about the SOFTWARE.
   3. Attempt