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the Vista EULA allows self-help
From: David Farber <dave () farber net>
Date: Wed, 22 Nov 2006 17:46:55 -0500



Begin forwarded message:

From: Seva Batkin <sbatkin () gmail com>
Date: November 22, 2006 3:51:07 PM EST
To: dave () farber net
Subject: the Vista EULA allows self-help

Hi Dave,

I just wanted to point out that the following portions somewhat exaggerate the issue:

"Now if Microsoft breaches the contract it wrote, the Vista EULA, what are your rights? Well, according to the terms of the agreement you agreed to, "you can recover from Microsoft and its suppliers only direct damages up to the amount you paid for the software. You cannot recover any other damages, including consequential, lost profits, special, indirect or incidental damages." So if your entire network is shut down, and access to all your files permanently wiped out, you get your couple of hundred bucks back - at most. And, as far as I can tell, there are no warranties on the license, no assurance (like the kind you would get on a toaster oven or a lamp) that the thing actually works or does any of the things advertised. "

In reality, if you use Microsoft Windows to run your mission critical, or for that matter virtually any corporate network, your rights and obligations in relation to Microsoft are not governed by the EULA, but by the contract that your firm signed with MS or its distributor. Just like contracts with ISPs and Telcos, these provide for SLAs, for damages for non-compliance, etc. Frankly, why would anyone expect otherwise? Why would a company that sells you something for $200 want to assume a multi-million dollar risk? It wouldn't, and no other company does, AFAIK.

"What is worse, if you just want to get your money back (assuming Microsoft doesn't want to give it to you) then you have to file a lawsuit (probably in Redmond, Washington) under the laws of Washington State, and if (and only if) you can prove your case, and your damages, can you get your money back. "

I don't know if the EULA also contains a forum selection clause, but if it doesn't the rules for where it can be filed are rather broad, and more chance than not that you can file it wherever you live. Even if there is a forum selection clause, there is still a good argument to be made for filing a law suit in your own jurisdiction.

"You aren't entitled to, upon your belief that there was a breach of contract, simply walk up to the cash register at your local Fry's or Best Buy and take a couple of hundred bucks from the till. This is called "self help" (or theft) and is not generally allowed as a contract remedy."

When ARE you entitled to do that?

--
Thank You,

----------
Seva Batkin B.Eng.
Technology and Legal Research Services
Tel: (778) 389-7382
Fax: (604) 677-5345

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