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Re: More FSF hypocrisy


From: Alexander Terekhov
Subject: Re: More FSF hypocrisy
Date: Thu, 26 Mar 2009 00:51:48 +0100

"Peter Köhlmann" <address@hidden> schrieb im Newsbeitrag news:address@hidden
Rjack wrote:

Thufir Hawat wrote:
On Wed, 25 Mar 2009 11:09:32 -0400, Rjack wrote:


All EULA would be contracts, yes?  Not complying with an EULA opens
up a can of worms.
Depends on whether the EULA is ultimately found by the courts to be
enforceable or not.


Do please generalize as to whether other EULA are, or are not,
contracts in your view.

All EULAs are contracts.

All EULAs are meaningless when presented after  buying the goods

A drunktard judge may find otherwise.

http://blog.internetcases.com/2009/02/23/clickwrap-binding-despite-claim-of-no-opportunity-to-read-terms/

------
Clickwrap binding despite claim of no opportunity to read terms

February 23, 2009 | by Evan Brown

Via Viente Taiwan, L.P. v. United Parcel Service, Inc., 2009 WL 398729 (E.D. Tex. February 17, 2009)

A federal court in Texas held the clickwrap agreement between United Parcel Service and one of its customers was binding. After plaintiff Via Viente sued UPS in Texas, UPS moved to transfer venue to the Northern District of Georgia, citing to a forum selection clause in a license agreement governing Via Viente's use of a UPS-provided software program that allowed Via Viente to print labels and manage product shipments.

Via Viente argued that the clickwrap agreement (and by extension the forum selection clause) was not binding because a UPS technician installed the application on a Via Viente computer, and therefore Via Viente never had a chance to agree to the terms. The court rejected that argument for the following three reasons:

* Via Viente was a sophisticated company and "should have been aware that terms of service were forthcoming" after having signed the general Carrier Agreement with UPS that required the use of the software;

* It was "difficult to believe" that Via Viente would have left the UPS technician installing the software unsupervised. Moreover, it was not UPS's practice to install the software unsupervised;

* Via Viente had kept the benefit of the bargain (convenience and "palatable" shipping costs) so it would have been inequitable to allow it to disavow provisions it did not like.

After finding the clickwrap agreement to be binding, the court went on to find the forum selection clause enforceable, and transferred the matter to the Northern District of Georgia.

EULA photo courtesy Flickr user johntrainor under this Creative Commons license.

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------

regards,
alexander.

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)



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