Hey, Atlantis Computing. What the heck is this in your EULA?

Re: Pity-

I'd have thought such terms in an EULA were a perfect advertisement - a word, that at one time, meant "warning"...

Re: Isn't that basically already banned ?

Also, wouldn't damages awarded in any legal action depend on the harm that thad been caused to the plaintiff? If a plaintiff can be harmed by the truth being told about them, perhaps the jury would decide that they didn't deserve any 'damages'?

Re: Isn't that basically already banned ?

In the UK it's *NOT* a contractual term if it is something that is disclosed after the contract has been established and is therefore not enforcable.

Rather like shrink-wrap software EULA's which you are asked to agree to after you have parted with your consideration.

Re: Isn't that basically already banned ?

"I thought that abusive contractual clauses were always struck down by a judge."

The trouble is that having something struck down by a judge requires actually taking it to a judge. Not many people, or businesses, want to waste their time and money being sued in order to do so. Given the cost of even such obvious open-and-shut cases, many wouldn't be able to do so even if they wanted to. Companies can get away with abusive EULAs like this because for the vast majority of people it's simply not worth the hassle of fighting.

Of course, that's probably what they're relying on in the first place. Even if they have no intention of ever suing anyone, as long as a few people are discouraged from giving negative reviews it was worth the ink to print it. Occasionally the Streisand effect might kick in and cause more harm overall, but how many potential customers will actually hear of this case, let alone the thousands of others that no doubt exist?

Re: Isn't that basically already banned ?

Yes and in most jurisdictions one such clause means the whole contract is null and void.

@Destroy all monsters... Re: C-level Wet Dreams Of Power (WeDrOPs) often don't match reality

Actually depending how its written and interpreted, it may be enforceable in certain circumstances.

From the article:

"

Get this: "Licensees will not (and will not allow any third party to) ... (iv) publish or disclose to any third party any opinions relating to, or test results, benchmarking or comparative study involving any Product without the prior written consent of Atlantis Computing."

"

Scenario 1:

You are a customer, who's used the product. You run an internal benchmark of their product and compare it to a competitor. You then publish a blog post comparing the two...

You could be sued. It clearly a benchmark and fits the narrow limitation of your speech.

Scenario 2:

You are a customer and in a blog post you complain about the company, the product's support team and the performance.

Depending on what you said, you could be sued, however you're within your First Amendment Rights. Note, IANAL, and you can still be sued, however you would ultimately win, but you will have a 5-10K legal bill.

The truth is that they don't want people doing quasi benchmarks which may be slanted and not use the product as intended.

This goes back to the TPC benchmarks in the 90's ...

Re: Cue Striesand Effect in

well, careful what you wish for. For some it's a Straisend effect, for others - free publicity.

Re: Fighting back

I like that.

"Up to 100% of customers did not say they were satisfied."

If Vendor N doesn't have an EULA that prevents it, then Vendor E can publicly say that Vendor N has terrible performance, 'look.. here are the results'. At least this way, the worse these vendors can do is exactly what I did here, Vendor E, N, H etc and allow the customer to infer what it means.

"If you can't stand the heat, get out of the kitchen"

These things cannot be avoided (unless you are in an environment managed via 5-year plans), after all I could always astroturf by dissing product X pseudonymously on forums (as is done in politics, and, no I am not antisemitic) so the way to go is to go to th trade press and sponsor fair&independent comparisons.

Trying to given customers an EULA ENEMA instead is just plain stupid.

"Those two vendors have a product that performs roughly the same, but vendor E knows how to tune vendor N's product so that it is 50% slower."

Don't public benchmarks serve to stop this sort of knobbling? OK they don't address the real-world if your problem is not similar to the test, but they ate least have an open set of tests that each vendor can submit their own tuning to get the best from it.

Re: Slow news day?

I recently employed an estate agent. Of the two that made the cut, one offered me a contract that was a model of clarity, and the other, pages of legalese that I couldn't even parse. Since I couldn't find any good reason to choose between them, guess who got my signature?

I think I'm unusual. I read the small print before signing, or not.

A song I once heard, and the words stuck in my head:

"As through this world I wander, I've met all kinds of funny men / some rob you with a six-gun, some with a fountain pen / Yet as through this world I wander, as through this world I roam / I've never seen an outlaw drive a family from their home".

Re: Try this on for size

Did this once to piss of a DEC salesweasel at university.

When they did maintenance they always insisted that we opened the CDs so that we were agreeing to the license when they installed it.

So we got a post-doc from a former soviet republic that didn't exist anymore and was now officially stateless - we introduced him to the salesdroid and him open the CDs.

Re: Try this on for size

I've pondered this very thing myself for the last few days when I discovered that my 14yo daughter had upgraded (after getting sick of the nagging) *her* (bought with her own money) Win8.1 laptop to Win10. She accepted all the T&Cs and the EULA and Microsoft know how old she is because I'm the registered adult for her MS account - because we were truthful when we set up her account and said she was only 12 (which she was at the time of original purchase) - so while I get a weekly update of what she's doing on the laptop - Microsoft neglected to tell me that it was 1) Offering a Win10 upgrade 2) that she had accepted it.

I don't see how Microsoft's T&Cs and EULA are legally enforceable against a child, especially when it can be shown that they know how old that child is!

Businesses are not covered by that, because the expectation is any contract you would have validated by a lawyer.

The Unfair Contract Terms Act 1977 applies only to liability arising in the course of a business. It does not therefore provide comprehensive protection against unfair terms.

However, a consumer, you should really quote the:

Unfair Terms in Consumer Contract Regulations 1999, which actually come from an EU directive to extend consumer protection.