Re: More FSF hypocrisy

[Alexander Terekhov]

"Peter Köhlmann" <peter-koehlmann@t-online.de> schrieb im Newsbeitrag 
news:gqedqf$srh$00$1@news.t-online.com...
> 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.

(If you enjoy Internet Cases, please subscribe to the RSS feed.)
------

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.)