I was about to disagree, but I just re-read Cloudflare's language, and you're right. Cloudflare forbids performing any tests or analyses, whether or not you publish the results. Even running something like `curl http://my-workers-site | time`, for your own personal curiosity, is in violation of their ToS. That's even more egregious than Oracle DB's infamous DeWitt clause.

Then again, a Cloudflare employee just gave written consent in this post for us to perform benchmarks, so maybe we're all off the hook! :)

Interesting, AWS terms of service seem more reasonable, allowing you to perform benchmarks at will, but requiring that you disclose to them the methodology you used to perform the benchmark. Seems like a more reasonable clause while still preserving the ability to respond to hostile or inaccurate benchmarks.

1.8 in https://aws.amazon.com/service-terms/

Here's some background from 2008 on benchmarking clauses and their precariousness: https://corporate.findlaw.com/business-operations/n-y-case-c...

I think the way AWS does it are great. I understand why some companies doesn't like benchmarks, mainly because it is subject to marketing spin and picking specifics without context. But giving out exact methodology so others could repeat the test seems fair. Basically the whole benchmarks should be open source if you do intend to publish it.

I any civilised jurisdiction such ToS are unenforceable.

Why do firms continue to make unenforceable claims? (My least favourite are restriction of trade clauses in employment contracts that are simply illegal, unless paid for, where I come from. But they appear all the time in contracts)

I just skimmed the ToS, the only remedy they offer to a violation of the terms is a denial of access to their service. Which is something they definitely can enforce.

Because it requires lawyers to prove that the claims are unenforceable, and most smaller companies aren't going to have the pockets needed to sustain the legal back-and-forth, which forces them to settle even if the big company is in the wrong.

It's legal 'chicken'.

threat of lawyers and settling out of court is a powerful extralegal deterrent all on its own.

What do you mean unenforceable? In many jurisdictions it is a criminal offense to violate the terms of service of a web site. In Illinois the first violation is a misdemeanour punishable by a year in the county jail. Further violations carry 2-5 years in prison.

A ToS is limited in what it can legally contain by law.

The EU e.g. has 93/13/EEC aka "Unfair contract terms directive" which bans a lot of shenanigans in ToS (e.g. mandatory location for law disputes). Or just writing in your ToS that "you agree that contract parties are not bound by the EU GDPR" for another example, like some companies do write, doesn't mean this is a enforceable clause. Another example, Germany recently made a law that mandates automatic subscription renewals - such as mobile phone contracts, gym memberships or online services - can be cancelled every month (there already was a law before that limited the initial subscription contract to a duration of max 2 years).

If there are some laws specifically that disallow general "benchmarking" I don't know, but I wouldn't be surprised if at least in the EU such a clause would be unenforcable. That sounds like a clear unfair one-sided advantage (the customer cannot check the services actually provided match what was promised). Publication of such results is another matter.

Also, I am curious about what you said about Illinois? Sounds bonkers. I mean I could imagine criminal prosecution for a set of defined, deemed specially bad violations that constitute crimes, like "hacking" and "sabotage", but not for things like e.g. "failure to pay membership dues in time" and other civil matters. Then again, I remember that case of some guy in Florida who couldn't keep his lawn nice and green, and didn't have the money to replace the lawn again and again, so the HOA took him to court, he was ordered to replace the lawn (which he still couldn't afford) and ended up in prison for a couple of days for "contempt of the court" until some friends and neighbors replaced the lawn.

> it is a criminal offense to violate the terms of service of a web site

Sorry, what? Where? How's that even possible?

Among other places, in the United States. The CFAA [0] prohibits "access[ing] a computer without authorization or exceed[ing] authorized access". It's interpreted extremely broadly by the courts.

[0] https://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act

Here in Illinois they have a specific law which makes violating ToS a criminal offense punishable by up to 5 years in prison.

https://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=0...

This means I could set up watchcutecatpictures.org with some fine print that prohibits watching more than 10 cats a day and call the cops on random people.

What legal reasoning exists to give companies this kind of unchecked power?

Just to make certain put a button that says "I agree" next to a link to the T+Cs.

>According to the court, DeJohn's claim that he did not read those terms was >irrelevant because, absent fraud (which was not alleged), "failure to read a >contract is not a get out of jail free card."

https://www.wilmerhale.com/en/insights/publications/click-wr...

It doesn't need to be legally enforecable to be useful.

At the very least, it is an indication of where they stand. They are free to take any customers they want, and if they say they don't want customers with a certain use case, that's good enough for me.

> so maybe we're all off the hook! :)

Or maybe its entrapment!

Same as when accepting a job, never trust someone who says a section of their contract/terms won't be enforced.

I might need to start looking for another provider...