Terms of Embarrassment

By Ed Foster, InfoWorld's GripeLine Columnist

(Blogster's note: An EULA is an 'end user license agreement'. Those are those agreements in fine print that you have to agree to to use software programs or partake of certain services (such as renting cars, etc.)

One of the best ways to rid ourselves of bad terms is to hold their purveyors up to a little public embarrassment. So this week we examine another collection of egregious EULA provisions that readers have spotted. Cast your vote for the worst of them all, and let's see how many of them we can make disappear.

You might recall that among the outrageous terms that went away after readers pointed them out was Hilton's "we own all your information" privacy policy. But while Hilton did remove the most offensive privacy terms, some other bizarre legal language remains in its website usage agreement. For example, in its "Release" section, the Hilton website terms describe California's Section 1542 and similar laws that say you don't give up claims you don't yet know about. But Hilton says:

"Nevertheless, it is your intention, through this Agreement, and with the advice of counsel, fully and finally settle and release all such matters, and all claims relative thereto, which do now exist, may exist, or have existed between and among the parties hereto, including the Indemnified Parties. You hereby acknowledge that you have been advised by your legal counsel, understand and acknowledge the significance and consequence of this release and of this specific waiver of Section 1542 and other such laws."

So even the most casual of visitors browsing a Hilton-related website is supposed to have retained counsel in order to give up their legal rights? While Section 1542 releases aren't all that uncommon in EULAs, I haven't seen any others where you agree you've consulted an attorney. Of course, EULA writers like to push the envelope in a number of areas like this. One reader spotted an "equitable relief" section in the EULA for Sierra's Hallmark Card Studio Deluxe 2004:

"You hereby agree that Sierra would be irreparably damaged if the terms of this License Agreement were not specifically enforced, and therefore you agree that Sierra shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this License Agreement, in addition to such other remedies as Sierra may otherwise have available to it under applicable laws."

In other words, said the reader, it would seem that Sierra can do anything it wants to you. Another reader, knowing my fondness for censorship clauses, pointed out one that goes beyond the typical restrictions on publishing benchmarks. The EULA for Micromuse's Netcool product states:

"No benchmark results nor results of any functional testing or evaluation of the Program shall be disclosed to any third party or used for any purpose other than to facilitate Licensee's internal use of the Program."

If you can't disclose your evaluation of the program to any third party, the reader wondered if she was violating the EULA by telling me what she thinks of their censorship clause. What if she wanted to recommend the software to a friend at another company - would that also be prohibited?

Spyware EULAs no doubt deserve their own separate rogues' gallery, but there's one I feel compelled to include because of its resemblance to the EULA-wrapped "FriendGreetings" virus of a few years back. Today's EULA for Avenue Media's Internet Optimizer states that:

"In consideration for viewing of video content, Avenue Media may send email to your Microsoft Outlook contacts and/or send instant messages to your IM contacts offering the video to them on your behalf. By viewing the video content, you expressly consent to said activity."

Finally, there's one more term I have to include, even though we've talked about it before. That's because - at least insofar as I can tell - we haven't been able to embarrass Autodesk yet into changing the AutoCad EULA. So customers who don't owe Autodesk a cent are still subject to losing their license because of any financial difficulties:

"No Assignment, Insolvency. This Agreement and any rights hereunder are non-assignable and any purported assignment shall be void. The Agreement and the licenses granted hereunder shall terminate without further notice or action by Autodesk if You become bankrupt or insolvent, make an arrangement with Your creditors or go into liquidation."

So which of those five fine-print horrors do you think is the worst? On my website you can answer that question in my reader poll, see the poll results, and post your comments about this story. And don't worry about any of the vendors' feelings here -- when you deal in bad terms such as these, you deserve all the embarrassment you get.