EULA Enforceability

A click-wrap agreement, the "I agree" checkbox nobody reads, has been treated by US courts as binding since the 1990s. That fact lets a manufacturer disclaim liability for defects in a document a customer never negotiated and rarely opens.

EU consumer law treats this differently. The Unfair Contract Terms Directive can void one-sided consumer terms, and the revised Product Liability Directive makes liability for death, injury, or property damage non-waivable, regardless of what the EULA says.

The same clause can be enforceable in one market and void in another.

Discussion prompts

• When did your organization's customers last actually read the EULA before agreeing to it?
• If a liability waiver is unenforceable in the EU but enforceable in the US, which version should a manufacturer selling in both markets write to?
• What would your EULA need to say if disclaiming liability for security defects were no longer legally available to you?