liability terms-of-service eula
Is the Benchmarking clause in VMware&#39;s EULA actually valid?
<p>The <a href="https://www.vmware.com/download/eula/universal_eula.html" rel="nofollow">VMware End User License Agreement</a> reads as follows: </p>

<blockquote>
  <p><strong>2.4 Benchmarking.</strong> You may use the Software to conduct internal performance testing and benchmarking studies. You may only publish or otherwise distribute the results of such studies to third parties as follows: (a) if with respect to VMware’s Workstation or Fusion products, only if You provide a copy of Your study to benchmark@vmware.com prior to distribution; (b) if with respect to any other Software, only if VMware has reviewed and approved of the methodology, assumptions and other parameters of the study (please contact VMware at benchmark@vmware.com to request such review and approval) prior to such publication and distribution.</p>
</blockquote>

<p>My questions are:</p>

<ul>
<li>What happens, if you refuse to take your unapproved benchmark down? Can they sue you?</li>
<li>How much leg does a clause like this stand on the courts? In the United States? In the rest of the world?</li>
</ul>

<p>IANAL, but a EULA is a Contract of Adhesion <a href="https://www.law.cornell.edu/wex/adhesion_contract_contract_of_adhesion" rel="nofollow">https://www.law.cornell.edu/wex/adhesion_contract_contract_of_adhesion</a> and restrictions against publishing benchmarking data about products is fairly common <a href="https://www.eff.org/wp/dangerous-terms-users-guide-eulas" rel="nofollow">https://www.eff.org/wp/dangerous-terms-users-guide-eulas</a></p>

<p>A contract is a contract, even a click-through, and is legally binding; there is plenty supporting case law. You sign when you click: <a href="http://smallbusiness.findlaw.com/business-operations/contracts-and-electronic-signatures.html" rel="nofollow">http://smallbusiness.findlaw.com/business-operations/contracts-and-electronic-signatures.html</a></p>

<p>Basically, VMware has lots more money than you do. If they are annoyed at your posting of benchmarks that don't make their products look as good as they feel they should, they can at very least send a DMCA to the site that posts the benchmarks. Whether that works could depend on where the website is hosted. At most, they could take you to civil court, if you are in their jurisdiction.</p>

<blockquote>
  <p>What happens, if you refuse to take your unapproved benchmark down?
  Can they sue you?</p>
</blockquote>

<p>Yes. (In civil, not criminal court).</p>

<blockquote>
  <p>How much leg does a clause like this stand on the courts? In the
  United States?</p>
</blockquote>

<p>A contract is a contract. And VMware and you (I assume) are in the US, so the contract is enforceable.</p>

<blockquote>
  <p>In the rest of the world?</p>
</blockquote>

<p>Outside of the US, enforceability is variable; that is searchable in law databases for each country and agreements between countries.</p>

<p>Consider your motives for posting benchmarks against VMware's EULA. Do you have good points to make? Or are you simply complaining about the product? Who has more money to spend defending or fighting the EULA? You or them?</p>

<p><em>If you're seriously concerned about this, talk to a lawyer and don't take legal advice from the general public.</em></p>
