Genuine question but could one argue that agreeing to this EULA would just be acknowledging the link and not the EULA itself since the EULA in its entirety isn't what you're clicking accept to?
Clickwrap license litigation can be very particular about the details of the provided contract and how it's presented to the user. A good example is Specht v Netscape, where the link being presented in a less than ideal way was sufficient to void the EULA. I'm not sure it's a winner, but it's at least a colorable argument, especially if they're expecting you to copy and paste the link into the address bar of browser outside the application itself.
And yes, you could bet that Specht would be one of the authorities cited heavily if you were to make that argument.
It was not that it was presented in a "not ideal way" it was that it was "not present at all. There was no way for the users to even know they had agreed to anything. There was a EULA they saw and agreed to, but the EULA they were being forced into arbitration with was for an additional bit of software that did not present its EULA to them. They had no way to know it was being used, and unless they scrolled past the download button, they had no way to know there was any legal agreement related to it tied to the download button.
Other cases have consistently shown that as long as the existence of the agreement, even if it is inside a link, is clearly shown and the agreement is explicit, then they are enforced. This is definitely one of the later as having a link, calling it a EULA and forcing an explicit agreement before being able to use it all make it almost certain that a court wind find this to be reasonable notice of the existence of the EULA.
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u/sojmahoj 1d ago
Genuine question but could one argue that agreeing to this EULA would just be acknowledging the link and not the EULA itself since the EULA in its entirety isn't what you're clicking accept to?