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Re: Tom Tom and Microsofts Linux patent lock-down ..


From: Doctor Smith
Subject: Re: Tom Tom and Microsofts Linux patent lock-down ..
Date: Sun, 15 Mar 2009 21:43:54 -0500
User-agent: 40tude_Dialog/2.0.15.1

On Sun, 15 Mar 2009 18:39:26 -0400, amicus_curious wrote:

> "Doug Mentohl" <address@hidden> wrote in message 
> news:address@hidden
>> amicus_curious wrote:
>>
>>> this article .. is rather 4th hand and not a very compelling analysis ..
>>
>> Said he as he totally failed to address or refute anything in the article.
>>
>> "Yes, other companies have signed FAT patent licenses, both in the context 
>> of patent cross licensing agreements and other licensing arrangements."
>>
> But he really didn't say anything about these companies using GPL software. 
> It was sort of a non-answer to the question.
> 
>> 'Contrary to what Microsoft may state about this not being about Linux, 
>> tying up companies that use Linux and open source in patent licensing 
>> agreements cuts to the very core of one of the things that's kept Linux 
>> and open-source alive: free distribution of the kernel and code'
>>
>> 'Samba maintainer Jeremy Allison pointed out in a recent blog posting by 
>> writer Glyn Moody that companies who sign up to Microsoft's licensing 
>> cannot continue to distribute their code under GPLv2'
>>
>> http://www.theregister.co.uk/2009/03/06/microsoft_tomtom_patent_licensing/
>> -- 
>> so who are we goign to believe Jeremy Allison or a legalistic Usenet troll
> 
> Well you are going to belive what you want to belive and I will do the same. 
> At the end of the day, it will be the judge and jury who will have to be 
> believed regardless of what either of us think or Jeremy Allison as well. 
> Who could sue TomTom and the others who are thought to be violating the GPL 
> by both signing deals with Microsoft for patent use and distributing GPL 
> code simultaneously?  TomTom does not use Samba, I would think, and so 
> Jeremy cannot sue, so who could sue and what would they assert?  The only 
> fact that anyone could glean would be that TomTom settled the suit filed by 
> Microsoft and that there are a number of companies using GPL that are not 
> being sued by Microsoft.  What would the complaint be in such a lawsuit? 
> That the GPL users are being harmed by Microsoft not suing a bunch of 
> companies?  That sounds a little ridiculous, don't you think?

I have a TomTom and it appears to use Linux for the firmware but uses FAT
or FAT32 for the file system.

BTW, here is the EULA for my particular TomTom. This is right off the file
system with the device connected as USB storage device.

=============================================================================

This EULA applies to you if you have made your purchase in the United
States or Canada. 

This End-User License Agreement (“EULA”) is a legal agreement between you
and TomTom Inc., United States of America (TomTom). You agree that this
EULA is enforceable like any written negotiated agreement signed by you.
This EULA applies to the use of software, pre-installed software on any of
our hardware devices and accompanying items, including on cd-rom, floppy
disc, memory card, download package or any other data carriers, and all
contents and contents programs (“Software”).

Please read this EULA carefully. By using all or any portion of the
Software you accept all the terms and conditions of this EULA. Breaking the
seal of a cd-rom, floppy disc or memory card, and pressing the “I agree”
button for a download of any updates, upgrades or supplements is considered
use of the Software. 

If you do not agree to the terms of this EULA, do not use the Software and
promptly return the unused Software, as well as the hardware and
accompanying items (“Hardware”) to the place where you obtained them. If
you have already paid for the Software and/or Hardware you may obtain a
refund of the purchase price provided that you (a) do not use the Software
and/or Hardware, and (b) forthwith return the Software and/or Hardware,
with proof of payment, to the location from which it was obtained. 

1) GRANT OF LICENSE: This EULA grants a license (“License”) that permits
you to use the Software, provided the Software is installed on only one
computer or Hardware device at any time and provided the Software is
combined with only one navigation system. This License is non-exclusive and
non-transferable. This License does not grant any rights to obtaining
future upgrades, updates or supplements of the Software. If upgrades,
updates or supplements of the Software are obtained, however, the use of
such upgrades or updates is governed by this EULA and the amendments that
may accompany them and may be subject to additional payments and
conditions. 

2) COPYRIGHT: Copyright and other intellectual, industrial and/or
proprietary rights to the Software, to any copies that you may make are
owned by TomTom and/or its suppliers. TomTom permits you to use the
Software only in accordance with the terms of this EULA. All rights not
specifically granted in this EULA are reserved by TomTom. You may either
(a) make one copy of the Software solely for backup or archival purposes,
or (b) transfer the Software to a single medium provided you keep the
original solely for backup or archival purposes. You may not copy the
product manual(s) or written materials accompanying the Software, except
for own use. You only become the owner of the material data carrier and you
do not acquire ownership of the Software.

3) OTHER RESTRICTIONS: Renting, lending, public presentation, performance
or broadcasting or any other kind of distribution of the Software and/or
the Hardware is prohibited. Other than as permitted by applicable
legislation, you will not, an will not allow any other person to, modify
the Software and/or the Hardware or any part thereof, to analyze it by
means of reverse engineering, to decompile or disassemble the Software
and/or the Hardware, or to make products derived from it. 

4) CONFIDENTIALITY: You acknowledge and agree that the Software was
developed at considerable time and expense by TomTom and is confidential to
and a trade secret of TomTom and/or third parties. You agree to maintain
the Software in strict confidence and not to disclose or provide access
thereto to any person.

5) THIRD PARTY SOFTWARE LICENSES: TomTom products may make use of third
party software. Notwithstanding clauses 2, 3 and 4, use of some third party
materials included in the Software may be subject to other terms and
conditions. The official copyright notices and specific license conditions
of these third party software codes and algorithms are to be found in or
via the ‘Third Party Software Licenses’-folder on the CD/SD/ROM/HardDisk.
You hereby agree to the terms and conditions for such third party software.

6) LIMITED WARRANTY:
a) TomTom does not and cannot warrant that the Software and/or Hardware
operate error-free. You should be particularly aware of the fact that
calculation errors may occur when using Software and/or Hardware in a
navigation system for instance caused by local environmental conditions
and/or incomplete data.
b) Except for the Limited Warranty document included with the Hardware
(“Limited Warranty”), if any, and to the maximum extent permitted by
applicable law, TomTom and its suppliers provide the Hardware and the
Software “AS IS AND WITH ALL FAULTS”, and hereby disclaim all other
warranties and conditions, whether express, implied or statutory,
including, but not limited to, any (if any) implied warranties, duties or
conditions of: merchantability, non-infringement, quiet enjoyment, system
integration, satisfactory quality, fitness for a particular purpose,
reliability or availability, accuracy or completeness of responses,
results, workmanlike effort, lack of viruses, and reasonable care and
skill, all with regard to the Software and/or the Hardware, and the
provision of or failure to provide support or other services, information,
software, and related content through the Software and/or the Hardware or
otherwise arising out of the use of the Software and/or the Hardware. This
exclusion does not apply to (i) any implied condition as to title and (ii)
any implied warranty as to conformity with description. If applicable law
requires any implied warranties with respect to the Software or the
Hardware, all such warranties are limited in duration to ninety (90) days.
Some states and/or jurisdictions do not allow limitations on how long an
implied warranty lasts, so the above may not apply to you.
c) Notwithstanding the Warranty Period described in the Limited Warranty,
if applicable, should you breach any term(s) of this EULA the Warranty
Period will end on the date of such breach. 

7) LIMITATION OF LIABILITY: 
a) Neither TomTom nor its suppliers shall be liable to you or to any third
party for any indirect, incidental, consequential, special, or exemplary
damages (including in each case, but not limited to, damages for the
inability to use the equipment or access data, loss of data, loss of
business, loss of profits, business interruption or the like) arising out
of the use of or inability to use the Software and/or Hardware even if
TomTom has been advised of the possibility of such damages. 
b) Notwithstanding any damages that you might incur for any reason
whatsoever (including, without limitation, all damages referenced herein
and all direct or general damages in contract or anything else), the entire
liability of TomTom and any of its suppliers arising from or related to
this EULA, shall be limited to the amount actually paid by you for the
Software and/or the Hardware.
c)  Notwithstanding clauses 7(a) and (b), or anything else contained in
this EULA, neither party’s liability for death or personal injury resulting
from its own negligence shall be limited.
d) Some states and/or jurisdictions do not allow the exclusion or
limitation of incidental or consequential damages, so the above limitations
or exclusions may not apply to you.

8) TERMINATION: Without prejudice to any other rights, TomTom may
immediately terminate this EULA if you fail to comply with any of its terms
and conditions. In such event, you must destroy all copies of the Software
and all of its component parts. The following provisions of this Agreement
will survive termination, will remain in effect after termination of this
EULA: Sections 3, 4, 6, 7, 8, 9, 11, 12, and 13. TomTom reserves the right,
with or without notice, to discontinue update, upgrade and supplement
services provided to you or made available to you through the use of the
Software. 

9) LINKS TO THIRD PARTY SITES: TomTom is not responsible for the contents
of any third-party sites or services, any links contained in third-party
sites or services, or any changes or updates to third-party sites or
services. TomTom is providing these links and access to third-party sites
and services to you only as a convenience, and the inclusion of any link or
access does not imply an endorsement by TomTom of the third-party site or
service.

10) THIRD PARTY RIGHTS: A party which is not a party to this EULA has no
rights under applicable legislation in relation to the rights of third
parties to rely upon or enforce any term of this EULA but that does not
affect any right or remedy of a third party which exists or is available
apart from such applicable legislation.

11) ENTIRE AGREEMENT: This EULA (including any addendum or amendment to it
which is included with the accompanying package of the Software and/or
Hardware), plus the Limited Warranty, if applicable, and any other terms
and conditions, if applicable, is the entire agreement between you and
TomTom relating to the Software and/or the Hardware and the support
services (if any) and they supersede all prior or contemporaneous oral or
written communications, proposals and representations with respect to the
Software or any other subject matter covered by this EULA. To the extent
that the terms of any TomTom policies or programs for support services
(other than the Limited Warranty) conflict with the terms of this EULA, the
terms of this EULA shall govern. If any provision of this EULA is held to
be void, invalid, unenforceable or illegal, the other provisions shall
continue in full force and effect.

12) TRANSLATIONS: The English version of this EULA is the controlling
version. Any translations are provided for convenience only.

13) GOVERNING LAW: This EULA and any disputes related to this EULA or to
the use of the Software and/or Hardware or otherwise are subject to
Massachusetts law, without giving effect to any principles that may provide
for application of the law of another jurisdiction. The United Nations
Convention on Contracts for the International Sales of Goods is hereby
excluded from application to this EULA. All disputes arising out of this
EULA shall be settled in the federal or state courts located in Boston,
Massachusetts, which will have exclusive jurisdiction in respect of any
such disputes.

Should you have any questions concerning this EULA, or if you desire to
contact TomTom for any reason, please visit TomTom on the World Wide Web at
http://www.tomtom.com.

===================================================================================


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