"Peter Köhlmann" <[email protected]> schrieb im Newsbeitrag
news:[email protected]...
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.)
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