[dow1-2tf] More "limitations may not apply to you" language
- To: metalitz@xxxxxxxx, roessler@xxxxxxxxxxxxxxxxxx, mcade@xxxxxxx
- Subject: [dow1-2tf] More "limitations may not apply to you" language
- From: KathrynKL@xxxxxxx
- Date: Tue, 19 Oct 2004 12:01:43 EDT
- Cc: mueller@xxxxxxx, dow1-2tf@xxxxxxxxxxxxxx, dmaher@xxxxxxx
- Sender: owner-dow1-2tf@xxxxxxxxxxxxxx
Here are a few more examples. These services and goods contracts clearly
show that companies recognize that not all rights can be waived, and that
customers have a right to be on notice that in key areas of public policy (such
warranties and privacy) their national laws may trump the contract. Better for
the company, the customer and the country to include this limitation clearly
in the contract --- much better than fighting it out in court later.
The same type of clarity in the future registrar contracts -- that national
or local privacy law may result in the collection/disclosure requirements not
being effective regarding a domain name customer -- would also better protect
the registrar, the customer, the country and ultimately ICANN. More examples
Three examples (with thousands more available):
1. TiVo (example of hardware, software, services contract)
"WHAT IS EXCLUDED?
Your warranty does not cover:
· Labor charges for installation or setup of the product.
*** [skipped bullet points]
· Incidental or consequential damages resulting from the product. (Some
states do not allow the exclusion of incidental or consequential damages, so
above exclusion may not apply to you.)"
2. Heterochat: a chat room for people who are HIV positive (example of
online services contract)
"Limitation on Liability
IN NO EVENT SHALL HETEROCHAT INC. BE LIABLE FOR ANY DIRECT, INDIRECT,
SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY
WHATSOEVER, EVEN IF HETEROCHAT INC. HAS BEEN PREVIOUSLY ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE,
OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE,
PERFORMANCE OF THE INFORMATION, SERVICES, PRODUCTS, AND MATERIALS AVAILABLE
FROM THIS SITE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. **BECAUSE SOME JURISDICTIONS DO NOT
ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, OR THE EXCLUSION OR
LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE
LIMITATIONS MAY NOT APPLY TO YOU. ** [stars added to point out clause]
3. Even IBM. IBM Personal Computing Support notes that for some customers,
state law allows them to receive the service *and* keep their rights.
"Extent of Warranty
IBM does not warrant uninterrupted or error-free operation of a Machine.
Misuse, accident, modification, unsuitable physical or operating environment,
improper maintenance by you, or failure caused by a product for which IBM is
not responsible may void the warranties.
THESE WARRANTIES REPLACE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE. ***HOWEVER, SOME LAWS DO NOT ALLOW THE EXCLUSION OF
IMPLIED WARRANTIES. IF THESE LAWS APPLY, THEN ALL EXPRESS AND IMPLIED
ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. NO WARRANTIES APPLY AFTER THAT
In Canada, warranties include both warranties and conditions.
***Some jurisdictions do not allow limitations on how long an implied
warranty lasts, so the above limitation may not apply to you.*** [As above,
added by me]
KK: Again, balanced language recognizing key areas of public policy concern
in certain jurisdictions protects the companies, the customers, and honors the