Re: GPL v3 Draft
On 1/17/06, Alexander Terekhov <alexander.terekhov@gmail.com> wrote:
> On 17 Jan 2006 11:44:42 -0500, Michael Poole <mdpoole@troilus.org> wrote:
> [...]
> > Seriously, I'm just asking you to back that up instead of hand-waving.
>
> I refrain. Drop an email to http://www.mama-tech.com/. She claimed it.
Drop a note to miss Ms. Kattwinkel too. Don't hesitate to ask her
whether she agrees with Moglen that an IP license (not a lottery
permit or something like that) is "not a contract".
http://norcal.gag.org/legalities/2005/legalities_no11.html
----
Q. In business contracts, I often see certain language put in all caps.
I hate the way that looks aesthetically. What is the reason for this?
When I prepare my own contracts, can I just use normal type
instead?
A. As in my example above, the all caps formatting is usually seen
in connection with disclaimers of warranties or liabilities. Legally,
certain types of warranties are implied into every contract unless
they are explicitly disclaimed. Also, certain types of foreseeable
but indirect liabilities can be incurred from breach of contract
obligations. The parties to the contract can explicitly disclaim such
warranties and liabilities, but court decisions have held that such
contractual disclaimers are not effective unless they appear
significantly more prominently than the rest of the text in the
contract. The conventional way to comply with these decisions is
to use all caps. Some contracts use all caps and boldface. Boldface
alone may also be acceptable. In any event, it is very important NOT
to put this type of language in the same style text as the rest of the
contract language.
Limitations on Liability provisions are especially important if you are
working in website design. They give you protection against liability
for lost functionality of the website. Typically, they include a cap on
damages. Here is an example:
Limitations on Liability.
THE MAXIMUM LIABILITY OF DESIGNER, ITS DIRECTORS,
OFFICERS, EMPLOYEES, AND AFFILIATES, TO CLIENT FOR
DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND
CLIENT'S MAXIMUM REMEDY, REGARDLESS OF THE FORM
OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE,
SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL
FEES PAID BY CLIENT TO DESIGNER HEREUNDER. IN NO
EVENT SHALL DESIGNER, ITS DIRECTORS, OFFICERS,
EMPLOYEES, AFFILIATES, LICENSORS AND SUPPLIERS,
BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST
PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR
PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO
THE DELIVERABLES OR THE SERVICES PROVIDED
HEREUNDER, EVEN IF DESIGNER HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES, AND
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE
OF ANY LIMITED REMEDY.
----
regards,
alexander.
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