eula
Are there limits on terms that can be stipulated in an EULA?
<p>I've seen that EULAs say things like &quot;Don't say anything bad about the EULA or this product.&quot;. What if the termination clause doesn't terminate that part of the EULA? Is the person forever locked out of freedom of speech? Is there a way to go to court or somewhere to completely wipe the EULA from oneself like if it was never agreed to?</p>
<p>P.S. I kinda think that one day this is going to happen:<br></p>
<blockquote>
We came for the kidney.
</blockquote>
<blockquote>
What kidney?
</blockquote>
<blockquote>
The one where you clicked Next, Next, and "I Agree."
</blockquote>

<p>South Park did the EULA gag, and such an agreement would be <a href="https://law.stackexchange.com/questions/9620/would-what-happened-in-south-park-human-centipede-be-legal">unenforceable as unconscionable</a>. NDAs, on the other hand, are conscionable, but a EULA isn't an NDA. There isn't a specific statute that you can point to that either makes such a no-criticism agreement explicitly legal vs. illegal, so the case would have to be based on common law justice-style arguments. <a href="http://www.leagle.com/decision/2003579195Misc2d384_1519.xml/PEOPLE%20v.%20NETWORK%20ASSOC.,%20INC." rel="nofollow noreferrer">People v. Network Associates</a> is a relevant case, where a clause requires permission to publish benchmarks or reviews of the software. The court found against the publisher. However, the restrictive condition was not part of the license agreement, which included a merger clause that declared the license agreement to be the whole agreement. The publisher had some hand-waving about mention of "rules and regulations" which they argued nullified the merger clause, where the court did not accept the argument. So for the moment, you need to decide whether disparaging a product is that important to you; or, become a legal pioneer and win a case in court.</p>

<p>There is a <a href="https://www.congress.gov/bill/114th-congress/senate-bill/2044" rel="nofollow noreferrer">bill, the Consumer Review Freedom Act</a> under consideration (passed the Senate) which might change that, if it becomes a law. It pertains to</p>

<blockquote>
  <p>a written, oral, or pictorial review, performance assessment of, or
  other similar analysis of, including by electronic means, the goods,
  services, or conduct of a person by an individual who is party to a
  form contract with respect to which such person is also a party</p>
</blockquote>

<p>and restricts </p>

<blockquote>
  <p>a contract with standardized terms—</p>
  
  <p>(i) used by a person in the course of selling or leasing the person's
  goods or services; and</p>
  
  <p>(ii) imposed on an individual without a meaningful opportunity for
  such individual to negotiate the standardized terms.</p>
</blockquote>

<p>which says that that kind of contract with that kind of provision is void.</p>

<p>You can always not accept a EULA at all. However, if copyright is involved, then accepting the EULA is often necessary to have a license to use the software. In that situation you will often find a notice that the sale is not final and you can return the software for a refund if you don't want to agree to the EULA. </p>

<p>You <em>can</em> in that situation not accept the EULA, and use the software, which would be copyright infringement. Nobody can prove that you did or didn't accept the EULA. If someone accuses you of copyright infringement, you can say that you accepted the EULA. And if any terms seem to catch you out that are worse than copyright infringement, you can say that you didn't accept the EULA (and may be sued for copyright infringement). </p>

<p>Some terms can be unconscionable which means they don't apply at all, they are legally worthless. In the EU, terms like "You can't say anything negative about the product" have been thrown out. "You can't say anything about the product at all" can be fine, but you cannot be restricted to say only nice things. </p>
