Text 12850, 137 rader
Skriven 2006-09-05 21:45:56 av Rich Gauszka (1:379/45)
  Kommentar till text 12848 av Gary Britt (1:379/45)
Ärende: Re: XP EULA - or Microsoft's right to violate an agreement anytime they
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From: "Rich Gauszka" <gauszka@hotmail.com>

thanks

"Gary Britt" <glb@gencog.com> wrote in message news:44fe12bd@w3.nls.net...
> 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.htm
l
>>>>
>>>> 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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