Given that nobody reads these things anyway, how enforceable are they? People just click 'Accept' and continue doing whatever they want.
According to the American Bar Association's wording on "Best Practices for Ensuring Enforceability" [0]
> There is a check-box that users must click adjacent to an affirmation similar to, “By clicking on the box, you are indicating that you have read and agree to the Terms of Use”;
> The webpage is designed so that if the user does not check the box manifesting assent to the terms, the user cannot proceed in the transaction;
> In addition to a check-box that users must click, the terms of use are available either in a nearby scrolling text box or a nearby hyperlink;
> Any hyperlink of the terms is obvious, e.g., “Terms of Use” is underlined and has decent size lettering and visible coloring (not small lettering and not obfuscatory coloring);
> Any hyperlink of the terms has a central or obvious location on the webpage, e.g., the hyperlink is directly below the “I Agree” button (not relegated to the bottom of the webpage, which would require the user to scroll down to a submerged portion of the webpage);
> Any hyperlink of the terms immediately displays the terms (instead of requiring the user to click on a series of hyperlinks to view the terms);
> The terms of use are evident in every webpage on the website (rather than visible on only one webpage), in addition to requiring users to attest that they have read the terms of use;
> The terms are in readable font (at least 12 point); and
> The agreement contains all requisite elements of an enforceable contract (e.g., consideration, sufficiently definite material terms, etc.).58
[0] https://www.americanbar.org/publications/communications_lawy...
It is important to capture terms when you sign up for things commercially and fight/negotiate terms that allow changes without notification.
I’ve definately run into situations where vendors decide to change the rules after the fact, even with things like shrinkwrap desktop software.
If you cannot negotiate with the counter party or it’s a goliath like Microsoft/Google/etc who wont negotiate with you, make a practice of downloading terms every quarter as they change.
Here is a funny example:
https://www.geek.com/games/gamestation-eula-collects-7500-so...
i'm really interested; what do you think the alternative is?
would you be happier if you had to mail in a signed copy of the contract?
If mandatory arbitration is allowed, the right to sue does not exist. You cannot have one but not the other.
you have no ability to negotiate because they have something you want, and you're unwilling to give them anything they might want. would a meaningful fraction of the population pay even $1/mo to receive better contractual terms on their dropbox account?
without looking at it, i expect that the terms for S3 look quite a bit better.
> You should not have to read the EULAs, because companies should not be allowed to require that you waive your fundamental rights like this as a precondition of using their service
whoa there. there's allll sorts of stuff that can go into a contract besides waivers of "fundamental rights", that you'd really not want to agree to willy nilly.
Yes, you've accurately described the power relationship in the contract "negotiation" and how it allows exploitation and abuse.
>whoa there. there's allll sorts of stuff that can go into a contract besides waivers of "fundamental rights", that you'd really not want to agree to willy nilly.
Agreed, I was being hyperbolic. You should of course read EULAs (though there's an argument to be made that they should be required to be streamlined, or expressed in plain-language and short)
But you don't have to check the EULA for a "slavery clause" that promises you and your children in eternal servitude to the company, similarly you shouldn't have to check to see if you are giving up other fundamental rights.
Whenever a contract party uses preformulated clauses (i.e. not negotiated for that specific contract) such as TOS, they are limited in what they are allowed to put in there and any unclear clause is interpreted to their disadvantage. It cannot be unreasonably detrimental or surprising to the other party. For contracts with consumers there is a list of what is definitely considered detrimental. It includes binding arbitration.
Yes, this limits the freedom to conclude contracts. The justification used is that usually the party using preformulated clauses has much larger negotiating power and such a relationship is usually not made of equals.
(Effectively the law, but as written for Simple English Wikipedia; and much more limited in length.)
As has been said, reading every legal document in the footer of every site/product is just not practical. The vast, vast majority of consumers are absolutely at the mercy of every company they deal with.
> this style instead
(surround the text with asterixes for italics)
> There is a check-box that users must click adjacent to an affirmation similar to, “By clicking on the box, you are indicating that you have read and agree to the Terms of Use”;
> The webpage is designed so that if the user does not check the box manifesting assent to the terms, the user cannot proceed in the transaction;
> In addition to a check-box that users must click, the terms of use are available either in a nearby scrolling text box or a nearby hyperlink;
> Any hyperlink of the terms is obvious, e.g., “Terms of Use” is underlined and has decent size lettering and visible coloring (not small lettering and not obfuscatory coloring);
> Any hyperlink of the terms has a central or obvious location on the webpage, e.g., the hyperlink is directly below the “I Agree” button (not relegated to the bottom of the webpage, which would require the user to scroll down to a submerged portion of the webpage);
> Any hyperlink of the terms immediately displays the terms (instead of requiring the user to click on a series of hyperlinks to view the terms);
> The terms of use are evident in every webpage on the website (rather than visible on only one webpage), in addition to requiring users to attest that they have read the terms of use;
> The terms are in readable font (at least 12 point); and
> The agreement contains all requisite elements of an enforceable contract (e.g., consideration, sufficiently definite material terms, etc.).58
EULA / TOS click wrap and shrink wrap licenses make a mockery of contract law out of convenience, transferring effectively what was supposed to be a reasonable agreement between two identified and informed parties and making it a completely one sided agreement dictated to one party, which nobody has actually identified until a claim arises.
The alternative is to not have license agreements. License agreements just end up including terms that companies wish they could change about the law but can’t. So instead of having to get politicians to ban reverse engineering, they just include it in their license. Instead of having to get policiticans to ban or limit class action lawsuits, they just force you out of the courts.