For example, say the next iOS TOS agreement says that any users who accept are subject to have their bank accounts drained and we all go on using our iPhones as usual and they took the money. Would that be legal?
In: Other
It depends on the level of fuckiness, there was once a piece of software that attempted to take legal possession of the user’s immortal soul by way of EULA. That was ruled null and void because of the concept of an unconscionable clause, that is to say something too fucky in the contract for the state to enforce it. Your given example would be ruled unconscionable.
IANAL YMMV
Depends on how fucky and fucky in what way. You cannot use a contract to compel someone to do something illegal or to be a victim of a crime, or do any number of things. Contracts are not Unbreakable Vows from Harry Potter. I don’t think “we can arbitrarily drain your bank account” would work. But something like “if you cancel service before the term is over, we can charge you this irritating amount of money for the pleasure” would probably fly under certain circumstances.
NAL, but every sneaky clause can edge a EULA that much closer to being ruled ‘unconscionable’.
Meaning the courts can decide “fuck this, no reasonable person would agree to that” and throw the whole thing out.
No. The terms and conditions they put should abide by the laws and rights of the consumer. They cannot just write absurd terms.
No, and from what I’ve seen most legal cases revolving around TOS or a EULA tend to be handled from the point of view of what’s “reasonable,” for the average person to assume/understand.
For example, if you’re a game developer planning on selling your game, it might be considered reasonable that you brush up on the part of the EULA of your game engine (Unity, Unreal, Godot, etc.) that deals with selling your game.
It’s also reasonable that the average user can assume things like “If I use my iPhone to commit an act of terrorism, Apple inc. is not legally liable,” or “If I put my iPhone in the toaster, Apple inc. is not at fault for it breaking.” In this case, the TOS or EULA just solidify these common sense things in a way which they can be brought up in court if some idiot does try to blame Apple for these things.
No. Nearly every US state says that those EULA and click-wrap agreements may only contain language that a reasonable person would ordinarily expect to be in such agreements. If there’s language in those contracts that a reasonable person wouldn’t expect to be in them, then that part of the contract is unenforceable.
There is an exception to what people are saying here: BUSINESS SOFTWARE!!!
If you buy or use software to run a business of any size, click-through EULAs are enforceable and software companies can and do enforce the terms of use. Most of them have very well trained, dedicated teams that audit their customers and hunt for non-authorised users to find breaches of the agreement and claim damages or fees for unfair use.
In the business it’s normally known as ‘Software Asset Management’ and it’s a big business for some companies.
The terms can not be unreasonable.
What you and I think is reasonable and what a company thinks is reasonable are obviously different, but what matters is what a judge/the law would think is reasonable.
Funny story about the terms of service, a company put a $1000 prize in the terms of service, but since nobody reads them it went uncollected for a while.
https://www.pcmatic.com/blog/it-pays-to-read-license-agreements-7-years-later/
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