http://www.tgdaily.com/2005/10/22/rtf_eula/
The End User License Agreement. You probably have grown accustomed to clicking through on these when installing new software, so accustomed that you don't even read them anymore. Well, we have and here are some of our favourites. We also present them with simultaneous plain English translations.
Do not criticize this product publicly
There are in fact clauses within EULA's, including a number by Microsoft in the MS XML and SQL Server EULA's, which state that [you] may not without Microsoft's prior written approval disclose to any third party the results of any benchmark test.
In other news, half the staff of Tom's Hardware Guide have been sued, arrested, jailed and hit on by their cell mates.
Free speech? Heh, not bloody likely under the EULA... man.
Do not use this product with other vendors products
The reason that software vendors don't want you or I to use a program in conjunction with another one is so that for example you don't go out with a packet sniffer to discover all that malicious spy and adware running alongside the piece of software you've just installed.
For example take a Claria EULA:
You agree that you will not use, or encourage others to use, any unauthorized means for the removal of the GAIN AdServer, or any GAIN-Supported Software from a computer . . . Any use of a packet sniffer or other device to intercept or access communications between GP and the GAIN AdServer is strictly prohibited.
Oh, and by the by, "sniffer" is a trademarked word, guys.
When your computer dies, it's not our problem
Oh, well, this is reassuring. "We're pretty confident in our software, but if it happens to entirely accidentally turn your machine into a cold fusion reactor and open up a hole in space, you cannot, we repeat, cannot hold us responsible."
As an example, let's look at a typical clause in the Windows XP EULA:
Except for any refund elected by Microsoft, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the Software does not meet Microsoft's Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose.
Dude, where's my computer...? Well don't ask Microsoft, that's for sure.
We'll make any changes to this agreement we like, and you've just agreed to them
Take for example Apple's service agreement for iTunes:
Apple reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or conditions on your use of the Service. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this Agreement as "Additional Terms") will be effective immediately and incorporated into this Agreement. Your continued use of the iTunes Music Store following will be deemed to constitute your acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference.
So, if we happen to install Ming the Merciless as our CEO and President for Life all you iTunes users shall be doomed to spend the rest of eternity listening to 90's pop music.
We're watching you
Some EULA clauses allow software manufacturers to monitor your machine at will - DRM being a good example - and send data back and forth at will. They can even download new content onto your machine without having to notify you - anything from an innocuous patch to full blown spyware.
For example take Section 6 of the Pinnacle Studio 9 movie-making EULA:
You acknowledge and agree that in order to protect the integrity of certain third party content, Pinnacle and/or its licensors may provide for Software security related updates that will be automatically downloaded and installed on your computer. Such security related updates may impair the Software (and any other software on your computer which specifically depends on the Software) including disabling your ability to copy and/or play 'secure' content, i.e. content protected by digital rights management.
Just because you can pirate with our product, it does not mean that we know you can
Musicmatch goes a long, long way to cover its own posterior in this regard. Not only do they want to make sure you're not being tempted by the dark side, they want you to personally ring up every artist, producer and record label involved before you burn a song to CD to make sure you've paid the royalties:
It is your responsibility, not Musicmatch's, to ensure that any material that you record on CDs using the Musicmatch Jukebox CD Recording function does not violate anyone's copyright. Please note that there may be more than one copyright involved in any song - the lyrics, the music and the performance, for example, may each have a separate copyright. You are responsible for getting any necessary permission and paying any necessary licensing fees for the music or other material you choose to record. If you violate the copyright laws, there may be fines or criminal charges brought against you, even if you don't get any commercial benefit from the illegal copies. You agree to hold Musicmatch harmless from your violation of copyright laws by your use of the CD Recorder.
You're not getting a refund
And the EULA can be used for all sorts of nasty clauses, including this little charmer from The Breeder Standard:
You agree, if purchasing by credit card or charge card, that you permanently and irrevocably waive any and all right to cause a "chargeback" (that is, a disputed, reversed or contested charge) against this purchase for any reason whatsoever against Company or other reseller of this license, effective as soon as you receive registration code(s) from the Company, open the envelope containing the program disk or otherwise install or use the Software. You agree that, if you institute such a "chargeback", it constitutes a material violation of this license, and damages Company in ways impossible to calculate, and with long-term adverse effects to the Company. Therefore, you agree to pay, and Company agrees to accept in compromise, for each chargeback you may issue or directly or indirectly cause to be issued against company, the amount of EIGHT THOUSAND DOLLARS ($8,000.00) to Company (or the party selling you this license), as liquidated damages and not as a penalty. You expressly confess, in the event of such a "chargeback", that such chargeback constitutes fraud and confess such fraud. You agree to pay all costs incurred by company or the seller of this license in collecting these amounts.
So, will any of this stand up in court?
Now that is the question. How enforceable is the EULA? Well, that depends on the court you go to. The majority of courts that have heart cases against specific EULA's and clauses have ruled against the EULA, though some have ruled in favor of it.
Those courts that have ruled against an EULA have stated that they are contracts of adhesion, unconscionable, and/or unacceptable. Those that have not ruled against the EULA generally do so for a bunch of complicated legal mumbo jumbo. If you really, really want to start talking about 939 F.2d 91 or Uniform Computer Information Transactions Act then you can find a good lawyer.
If you are maligned by an EULA clause which seems to go against various laws or even constitutional rights then it is up to you to go and consult a decent lawyer. In the mean time, we've been benchmarking products for years now and have yet to pay for our sins with hard time.
from slashdot
The End User License Agreement. You probably have grown accustomed to clicking through on these when installing new software, so accustomed that you don't even read them anymore. Well, we have and here are some of our favourites. We also present them with simultaneous plain English translations.
Do not criticize this product publicly
There are in fact clauses within EULA's, including a number by Microsoft in the MS XML and SQL Server EULA's, which state that [you] may not without Microsoft's prior written approval disclose to any third party the results of any benchmark test.
In other news, half the staff of Tom's Hardware Guide have been sued, arrested, jailed and hit on by their cell mates.
Free speech? Heh, not bloody likely under the EULA... man.
Do not use this product with other vendors products
The reason that software vendors don't want you or I to use a program in conjunction with another one is so that for example you don't go out with a packet sniffer to discover all that malicious spy and adware running alongside the piece of software you've just installed.
For example take a Claria EULA:
You agree that you will not use, or encourage others to use, any unauthorized means for the removal of the GAIN AdServer, or any GAIN-Supported Software from a computer . . . Any use of a packet sniffer or other device to intercept or access communications between GP and the GAIN AdServer is strictly prohibited.
Oh, and by the by, "sniffer" is a trademarked word, guys.
When your computer dies, it's not our problem
Oh, well, this is reassuring. "We're pretty confident in our software, but if it happens to entirely accidentally turn your machine into a cold fusion reactor and open up a hole in space, you cannot, we repeat, cannot hold us responsible."
As an example, let's look at a typical clause in the Windows XP EULA:
Except for any refund elected by Microsoft, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the Software does not meet Microsoft's Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose.
Dude, where's my computer...? Well don't ask Microsoft, that's for sure.
We'll make any changes to this agreement we like, and you've just agreed to them
Take for example Apple's service agreement for iTunes:
Apple reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or conditions on your use of the Service. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this Agreement as "Additional Terms") will be effective immediately and incorporated into this Agreement. Your continued use of the iTunes Music Store following will be deemed to constitute your acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference.
So, if we happen to install Ming the Merciless as our CEO and President for Life all you iTunes users shall be doomed to spend the rest of eternity listening to 90's pop music.
We're watching you
Some EULA clauses allow software manufacturers to monitor your machine at will - DRM being a good example - and send data back and forth at will. They can even download new content onto your machine without having to notify you - anything from an innocuous patch to full blown spyware.
For example take Section 6 of the Pinnacle Studio 9 movie-making EULA:
You acknowledge and agree that in order to protect the integrity of certain third party content, Pinnacle and/or its licensors may provide for Software security related updates that will be automatically downloaded and installed on your computer. Such security related updates may impair the Software (and any other software on your computer which specifically depends on the Software) including disabling your ability to copy and/or play 'secure' content, i.e. content protected by digital rights management.
Just because you can pirate with our product, it does not mean that we know you can
Musicmatch goes a long, long way to cover its own posterior in this regard. Not only do they want to make sure you're not being tempted by the dark side, they want you to personally ring up every artist, producer and record label involved before you burn a song to CD to make sure you've paid the royalties:
It is your responsibility, not Musicmatch's, to ensure that any material that you record on CDs using the Musicmatch Jukebox CD Recording function does not violate anyone's copyright. Please note that there may be more than one copyright involved in any song - the lyrics, the music and the performance, for example, may each have a separate copyright. You are responsible for getting any necessary permission and paying any necessary licensing fees for the music or other material you choose to record. If you violate the copyright laws, there may be fines or criminal charges brought against you, even if you don't get any commercial benefit from the illegal copies. You agree to hold Musicmatch harmless from your violation of copyright laws by your use of the CD Recorder.
You're not getting a refund
And the EULA can be used for all sorts of nasty clauses, including this little charmer from The Breeder Standard:
You agree, if purchasing by credit card or charge card, that you permanently and irrevocably waive any and all right to cause a "chargeback" (that is, a disputed, reversed or contested charge) against this purchase for any reason whatsoever against Company or other reseller of this license, effective as soon as you receive registration code(s) from the Company, open the envelope containing the program disk or otherwise install or use the Software. You agree that, if you institute such a "chargeback", it constitutes a material violation of this license, and damages Company in ways impossible to calculate, and with long-term adverse effects to the Company. Therefore, you agree to pay, and Company agrees to accept in compromise, for each chargeback you may issue or directly or indirectly cause to be issued against company, the amount of EIGHT THOUSAND DOLLARS ($8,000.00) to Company (or the party selling you this license), as liquidated damages and not as a penalty. You expressly confess, in the event of such a "chargeback", that such chargeback constitutes fraud and confess such fraud. You agree to pay all costs incurred by company or the seller of this license in collecting these amounts.
So, will any of this stand up in court?
Now that is the question. How enforceable is the EULA? Well, that depends on the court you go to. The majority of courts that have heart cases against specific EULA's and clauses have ruled against the EULA, though some have ruled in favor of it.
Those courts that have ruled against an EULA have stated that they are contracts of adhesion, unconscionable, and/or unacceptable. Those that have not ruled against the EULA generally do so for a bunch of complicated legal mumbo jumbo. If you really, really want to start talking about 939 F.2d 91 or Uniform Computer Information Transactions Act then you can find a good lawyer.
If you are maligned by an EULA clause which seems to go against various laws or even constitutional rights then it is up to you to go and consult a decent lawyer. In the mean time, we've been benchmarking products for years now and have yet to pay for our sins with hard time.
from slashdot
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