RE: [dow1-2tf] More "limitations may not apply to you" language

["Mansourkia, Magnolia" <Maggie.Mansourkia@xxxxxxx>]

I really think we're going off topic hear.  While I agree with Kathy's
general notion about various types of liability, it is not a violation, in
the EU or elsewhere, that their registrant information will be used to
provide the service and enforce the terms of the contract.  It is not a
waiving of rights, but rather a limitation of what the information is to be
used for. 

 

-----Original Message-----
From: owner-dow1-2tf@xxxxxxxxxxxxxx [mailto:owner-dow1-2tf@xxxxxxxxxxxxxx]
On Behalf Of KathrynKL@xxxxxxx
Sent: Tuesday, October 19, 2004 12:02 PM
To: metalitz@xxxxxxxx; roessler@xxxxxxxxxxxxxxxxxx; mcade@xxxxxxx
Cc: mueller@xxxxxxx; dow1-2tf@xxxxxxxxxxxxxx; dmaher@xxxxxxx
Subject: [dow1-2tf] More "limitations may not apply to you" language

 

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 as 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 below, Kathy

Three examples (with thousands more available):

1.  TiVo (example of hardware, software, services contract)
http://www.tivo.com/2.6.1.3.asp
"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
the above exclusion may not apply to you.)"

2.  Heterochat:  a chat room for people who are HIV positive (example of
online services contract) 
http://www.heterochat.org/
"Limitation on Liability 
IN NO EVENT SHALL HETEROCHAT INC. BE LIABLE FOR ANY DIRECT, INDIRECT,
SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY
DAMAGES WHATSOEVER, EVEN IF HETEROCHAT INC. HAS BEEN PREVIOUSLY ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT,
NEGLIGENCE, OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THE
USE, INABILITY TO USE, OR 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.
http://www-307.ibm.com/pc/support/site.wss/document.do?lndocid=MIGR-47MHCH

"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 WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. NO
WARRANTIES APPLY AFTER THAT PERIOD.***

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,
stars 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 national law.