For sure. There’s plenty of unenforceable stuff in EULAs. For one thing a bunch of these are trying to apply globally across places with way different laws managing customer protections.
But if you don’t mind that logic getting turned both ways, just because a EULA clause isn’t enforceable doesn’t mean you shouldn’t add it.
If the idea is your lawyers think there’s a risk of people buying a copy, refunding it and keeping it and you want to make sure that doesn’t happen it makes some sense to add the clause. If a judge ever says that clause doesn’t apply to a given situation you still mitigated the risk from the intended applicable situation.
That’s why these license deals also tend to have boilerplate about how a clause being unenforceable or made illegal should not impact the rest of the clauses. It’s a maximalist text, by design. It mostly exists like a big wet umbrella to keep companies out of the splash zone. Whatever ends up being used in practice is anybody’s guess. The world of civil law and private deals is way less of a black and white exact science than most people getting their legal intuition from crime dramas tend to think.
In the case they should have made it clearer in the terms, there are many companies that try to enforce them even if they seem unenforceable like Disney in the death case.
There is not excuse to put for terms like this, Disney proved that even if they look unenforceable they might try to enforce them.
For sure. There’s plenty of unenforceable stuff in EULAs. For one thing a bunch of these are trying to apply globally across places with way different laws managing customer protections.
But if you don’t mind that logic getting turned both ways, just because a EULA clause isn’t enforceable doesn’t mean you shouldn’t add it.
If the idea is your lawyers think there’s a risk of people buying a copy, refunding it and keeping it and you want to make sure that doesn’t happen it makes some sense to add the clause. If a judge ever says that clause doesn’t apply to a given situation you still mitigated the risk from the intended applicable situation.
That’s why these license deals also tend to have boilerplate about how a clause being unenforceable or made illegal should not impact the rest of the clauses. It’s a maximalist text, by design. It mostly exists like a big wet umbrella to keep companies out of the splash zone. Whatever ends up being used in practice is anybody’s guess. The world of civil law and private deals is way less of a black and white exact science than most people getting their legal intuition from crime dramas tend to think.
In the case they should have made it clearer in the terms, there are many companies that try to enforce them even if they seem unenforceable like Disney in the death case.
There is not excuse to put for terms like this, Disney proved that even if they look unenforceable they might try to enforce them.