Text 12847, 114 rader
Skriven 2006-09-05 18:31:16 av Rich Gauszka (1:379/45)
  Kommentar till text 12846 av Gary Britt (1:379/45)
Ärende: Re: XP EULA - or Microsoft's right to violate an agreement anytime they
===============================================================================
From: "Rich Gauszka" <gauszka@hotmail.com>

They claim exemption even from 'good faith'. Isn't that legalize for honesty
without deception?


"FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH'

"Gary Britt" <glb@gencog.com> wrote in message news:44fdfa07@w3.nls.net...
> That provision in the EULA doesn't say what is claimed to be said.  It
> says they aren't liable for non-direct consequential damages arising from
> their breach or negligence.  They are still responsible for the actual
> damages arising from their breach or negligence, which would basically be
> the cost of the software.  Possibly, some direct installation and setup
> costs might be part of the direct damages, but often these contracts have
> another provision that limits damages to the cost of the software.
>
> It is not uncommon in this kind of contract to limit consequential type
> damages because they are unknowable in potential size, type, and amount at
> the time the contract is entered into and represent too great of an
> unknown risk.
>
> The language about breech and negligence, etc. not counting was probably
> added as a result of some court case that ruled or implied these things
> needed to be specifically disclaimed and waived to count.
>
> Gary
>
>
> "Rich Gauszka" <gauszka@hotmail.com> wrote in message
> news:44fdee7d@w3.nls.net...
>> "Microsoft is not liable even if they break the terms of this agreement."
>>
>> http://weblog.infoworld.com/gripeline/archives/2006/09/a_contract_only.html
>>
>> A Contract Only Microsoft Can Break
>> Filed under: None
>>
>>
>> What kind of contract includes a provision that one of the parties has
>> the right to violate the contract with impunity? Well, the Windows XP
>> EULA for one, as an interesting analysis of Microsoft's legalese points
>> out.
>>
>>
>>
>> Several readers have justifiably praised LinuxAdvocate.org's "Windows XP
>> EULA in Plain English" page in which each section of the current Windows
>> XP Home EULA is printed side-by-side with a clear explanation of what it
>> means. Given the fact that most of us have "agreed" to it or a very
>> similar Microsoft EULA, the LinuxAdvocate's analysis is definitely worth
>> reading. But the plain English description of one section in particular
>> caught my eye.
>>
>>
>>
>> The XP EULA's section on limitation of damages reads:
>>
>>
>>
>>  17. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO
>> THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL
>> MICROSOFT OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
>> PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT
>> NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER
>> INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF
>> PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF
>> REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER
>> LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR
>> INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE
>> SUPPORT OR OTHER SERVICES, INFORMATON, SOFTWARE, AND RELATED CONTENT
>> THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE,
>> OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN
>> IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE),
>> MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF
>> WARRANTY OF MICROSOFT OR ANY SUPPLIER, AND EVEN IF MICROSOFT OR ANY
>> SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
>>
>>
>> In plain English, what this paragraph means of course is that Microsoft
>> isn't responsible for any damages caused by their software. But because
>> the list of things the company is not responsible for includes breach of
>> contract, LinuxAdvocate's article points out that this also means
>> "Microsoft is not liable even if they break the terms of this agreement."
>> I must have read this damage limitation paragraph half a dozen times,
>> since it's common to many of Microsoft's EULAs, but that little irony had
>> escaped me.
>>
>>
>>
>> A quick look at EULAs from other software publishers shows that some do
>> disclaim damages for their own breach of the license agreement and some
>> don't. Now, considering how one-sided software EULAs usually are, you
>> might wonder what terms are in any of them that the software publisher
>> could violate. But in the case of the Windows XP EULA, Microsoft promises
>> not to collect personally identifiable information in the product
>> activation process and not to share user information it collects with
>> third parties. Could that be why Microsoft's lawyers decided it would be
>> a good idea to be able to breach their own license agreements?
>>
>>
>>
>> The real point here though is just how absurd it is talk about software
>> EULAs as if they were real contracts. An agreement that one side can go
>> back on at any time is no agreement at all. That is the real plain
>> English message of the Windows XP EULA - if only a few more judges would
>> get it.
>>
>>
>
>

--- BBBS/NT v4.01 Flag-5
 * Origin: Barktopia BBS Site http://HarborWebs.com:8081 (1:379/45)