Text 12848, 127 rader
Skriven 2006-09-05 20:11:18 av Gary Britt (1:379/45)
  Kommentar till text 12847 av Rich Gauszka (1:379/45)
Ärende: Re: XP EULA - or Microsoft's right to violate an agreement anytime they
===============================================================================
From: "Gary Britt" <glb@gencog.com>

In this context I think it refers to having made a good faith effort to avoid
or solve the problem or do the software correctly.  That isn't an unusual
thing.  "Good Faith" arguments are allowed in some jurisdictions to turn what
should be a breech of contract claim only into a tort claim where consequential
and punitive damages are allowed.  That's why they are carving it out.

Gary

"Rich Gauszka" <gauszka@hotmail.com> wrote in message
news:44fdfb4a$1@w3.nls.net...
> 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.
>>>
>>>
>>
>>
>
>

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