4 ms·

No, click through EULAs are not always enforceable. But generally, EULAs are certainly a valid and enforceable form of contract throughout Europe - how else wou

by grkvlt 9y ago

No, click through EULAs are not always enforceable. But generally, EULAs are certainly a valid and enforceable form of contract throughout Europe - how else would things work, if not through a contract describing an agreement with the end user to license the software, i.e. an EULA?

madez 9y ago
An individually negotiated agreement that fulfills all the legal requirements of a contract is a valid way to ensure enforceability. But just repeating a part in many contracts is enough to make a court say that it is not individually negotiated and is therefore treated differently (AGB in German). A seemingly endless text wall with non-negotiabile terms that is considered agreed to by a click on "I have read this and agree to it" might only be binding to very limited extent, if at all. In my contract I mentioned a part was considered invalid because it was an issue that cannot be agreed to in an AGB, and the part was considered to be sufficiently AGB-like. To give another scenario, someone offers me a proprietary software. I don't know the terms and condition but I know that I need to pay for it. I then pay and receive the software. Upon starting it, it presents me with terms and conditions I need to agree to. In this scenario, the terms and conditions in the software are entirely void because the contract was established when the software was exchanged for money and the terms were not agreed to at that point. Only what is agreed to when the contract was established counts. If the software doesn't work for the intended purpose, I am free to modify it such that it does.
- grkvlt 9y ago
  Sure, that's right, and my point was pretty much the same; any EULA that the end user is forced to or has to accept automatically is invalid, such as click-though or shrink-wrap licensing. It's really just the terminology, since EULA has a much wider meaning here, I think.

by grkvlt 9y ago

madez 9y ago

An individually negotiated agreement that fulfills all the legal requirements of a contract is a valid way to ensure enforceability. But just repeating a part in many contracts is enough to make a court say that it is not individually negotiated and is therefore treated differently (AGB in German). A seemingly endless text wall with non-negotiabile terms that is considered agreed to by a click on "I have read this and agree to it" might only be binding to very limited extent, if at all. In my contract I mentioned a part was considered invalid because it was an issue that cannot be agreed to in an AGB, and the part was considered to be sufficiently AGB-like. To give another scenario, someone offers me a proprietary software. I don't know the terms and condition but I know that I need to pay for it. I then pay and receive the software. Upon starting it, it presents me with terms and conditions I need to agree to. In this scenario, the terms and conditions in the software are entirely void because the contract was established when the software was exchanged for money and the terms were not agreed to at that point. Only what is agreed to when the contract was established counts. If the software doesn't work for the intended purpose, I am free to modify it such that it does.

grkvlt 9y ago
Sure, that's right, and my point was pretty much the same; any EULA that the end user is forced to or has to accept automatically is invalid, such as click-though or shrink-wrap licensing. It's really just the terminology, since EULA has a much wider meaning here, I think.