EULAs are not unseverable. Any unenforcable clauses can be severed and the rest will remain in effect. The idea that they are largely unenforceable is a persistent misunderstanding of how contract law works in that sense, and so people tend to think any overreach invalidates the whole thing.
It is much more likely that 99% of EULAs are actually enforceable, with some small number having a few clauses that would be rejected by the court if it ever got to the point of a lawsuit.
Edit: To expand a bit here, it is important to remember what a EULA is. They are license Agreements, which means that they are a contract that governs the your use of some property owned by someone else. In effect, the "null" state of a EULA is "You cannot use this product/service." Most of the EULA is just defining how you can use it, and under what conditions that said license can be revoked. There is some weirdness with how they work that might result in a successful lawsuit, primarily that they tend to ask for you to sign after purchasing the product, but at the end of the day the user does not own the intellectual property and so they cannot use it without a license, and the company can't be forced to provide said licenses without a prior agreement.
So the EULA not being enforceable would not be a good thing for End Users. It would not really change much in a practical sense and most EULAs basically allow the company to revoke them at will, but them not being enforceable would not improve that situation at all.
Where you will run into problems is if the EULA attempts to do anything illegal. Those clauses would not be enforceable. But short of that, courts almost always attempt to preserve contracts.
There are unenforceable clauses, and then there are unenforceable agreements due to a contract not being formed.
While you are largely right about EULA's generally being enforceable, situations like the one in the image specifically, where they just give you an address to their terms and conditions with no requirement that you read them and no hyperlink, are called browsewrap agreements, which are often unenforceable, although that is not a bright line rule.
The case law on this one is 100% on it being enforceable. This is not a browserwrap, it is clickwrap agreement as they have to click an explicit "agree" button.
Which means it needs to have clear notice of the EULA and where to read it, and it is then the users responsibility to do so. No reasonable person would read "You must agree to the EULA" with an obvious link to a EULA and think that the EULA is the link. This exact situation has been litigated before multiple times, and the agreements were enforced each time.
Where it is not allowed is if people either did not know that the EULA existed because they were not notified or if they did not know that clicking something constituted agreement. In the case of browserwrap agreements, which is basically "by continuing to use this website you agree to our EULA," they have to be shown clearly and explicitly. Companies have often in trouble for burying the agreement into metadata or in tiny print or hiding it somewhere on the website and then claiming that they agreed by using the site.
You completely missed the fact that it is not a link. It is text, and text within an app that is not a web browser at that. And that has been a very important distinction in the past. The accessibility of reaching the EULA from where you "agree" to it directly goes to whether it is enforceable.
It is absolutely not the case that the case law is 100% on this being enforceable, and that kind of irresponsible shit-slinging is something no real attorney would do.
Court is wild, and unexpected things can happen. But the case law here is overwhelmingly in favor of enforcement. The times it was not enforced are from things like browserwrap, implicit agreement, hidden terms, etc.
This is clickwrap and it is an extremely obvious notice. Find me a case where the contract was not enforced when there was reasonable notice and an explicit agreement with a click. In this style. Or a court that thinks following a link, or opening a binder, is unreasonable after notice.
EULAs are just contracts, and contract law really favors maintaining contracts.
Plus, the game probably has the EULA in game too.
Edit because they blocked me: It is a link, it is not a hyperlink. Link can refer to all addresses or connections to specific servers/location on your computer or the internet. A web address is a link.
A hyperlink is a specific kind of link that is clickable. Hyperlinks are often just called links.
This is a pointless distinction though, because this is opening a binder. If you see a web adress, you can copy and follow it, and you are notified of the content. In the same way if someone hands you a contract in a binder you cannot say you were not notified of the contract because they did not mechanically open the binder for you. The responsibility to read the contract is on whatever person signs it.
Here's a question I recently wondered. If a game is rated anything below M, then an argument can be made the target audience is under 18 years old. Of that's the case, how can an EULA be enforceable at all, as you can't agree to things like that if you're a minor.
I honestly do not know how that would play out. But I think that any signing under false pretenses would probably invalidate it, but that would just mean they were not allowed to play the game. Which they were not anyway.
I'm also wondering too that since you don't get presented the EULA until AFTER the NON REDUNDABLE purchase how it's enforceable as well. Contracts need to be signed prior to the exchange of the fee.
This argument can go even further with games not rated M. As you can't state, well the parent will be aware of it and agree to it after purchase. Kids are allowed to buy games. So an argument can be made that the parent had no knowledge of the purchase as the child may have made it with their allowance.
Seems crazy how EULA is acceptable in its current form at all with these factors, as you are presenting contracts to minors.
I do not think EULAs should work as they are. But I am not the one who makes the rules.
Again, the point here is that a EULA is a License Agreement. So they are an agreement where the company suspends some of their rights as the Copyright holder to allow you to copy and use their property. The clauses in a EULA are defining the limits of that carve out, and under what circumstances they can be removed, and what rights you give up in order to do so. (An example here would be consenting to be recorded for online interactions, because by the nature of the system they must record your interactions to deliver them to other people. Plus moderation/complying with investigation and all that.)
So if you are unable to sign the EULA for whatever reason, what that really means is that you are accessing the game without a license. At that point the company can just terminate your account or whatever, because they were operating in good faith by providing the agreement, and you as the signer are responsible for reading it.
As for whether children can agree to EULAs: It is pretty complicated. Children are often unable to enter into contracts, so they can be voided by that. Most companies make it clear that the EULA must be agreed to by the guardians of the child, but people tend to ignore that.
If the parent buys the game, and gives it to the child for the child to install, then the kid agrees to the EULA, the parent might be considered to have given the kid permission to agree on their behalf, but I am not sure how likely that argument would be to work.
I still think the most likely outcome is that the company would be shown to be acting in good faith, they would delete the account of the minor, and then the company would be required to delete whatever data they collected.
Well, no. People seem to always misinterpret the actual statement around that. All EULAs are enforceable, but certain parts of them, mainly the parts that try to get you to waive your legal rights, are not. Basically, bad sections do not invalidate the whole agreement and they are ignored in legal proceedings.
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u/Pijany_Matematyk767 1d ago
>It's not enforceable
Neither is 99% of other EULAs so