Warranty and Liability Disclaimer Clauses in Current Shrinkwrap and Clickwrap Contracts

From the "MSN.COM WEB SITE TERMS OF USE and NOTICES"
URL: http://www.msn.com/help/legal/terms.htm. Found by Vergil Bushnell at 1:22 PM, March 1, 2000

MICROSOFT CORPORATION AND/OR ITS RESPECTIVE SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE MSN WEB SITES FOR ANY PURPOSE. ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. MICROSOFT AND/OR ITS RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. IN NO EVENT SHALL MICROSOFT AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE MSN WEB SITES, WITH THE DELAY OR INABILITY TO USE THE MSN WEB SITES OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE MSN WEB SITES, OR OTHERWISE ARISING OUT OF THE USE OF THE MSN WEB SITES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF MICROSOFT OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE MSN WEB SITES, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE MSN WEB SITES.
From Microsoft's "SUPPLEMENTAL END USER LICENSE AGREEMENT FOR MICROSOFT SOFTWARE" for Internet Explorer 5.01
Internet Explorer 5.01 can be downloaded free from Microsoft's website. Found by Vergil Bushnell at 4:46, March 1, 2000
IF THE APPLICABLE OS PRODUCT WAS LICENSED TO YOU BY MICROSOFT OR ANY OF ITS WHOLLY OWNED SUBSIDIARIES, THE LIMITED WARRANTY (IF ANY) INCLUDED IN THE APPLICABLE OS PRODUCT EULA APPLIES TO THE OS COMPONENTS PROVIDED THE OS COMPONENTS HAVE BEEN LICENSED BY YOU WITHIN THE TERM OF THE LIMITED WARRANTY IN THE APPLICABLE OS PRODUCT EULA. HOWEVER, THIS SUPPLEMENTAL EULA DOES NOT EXTEND THE TIME PERIOD FOR WHICH THE LIMITED WARRANTY IS PROVIDED.

IF THE APPLICABLE OS PRODUCT WAS LICENSED TO YOU BY AN ENTITY OTHER THAN MICROSOFT OR ANY OF ITS WHOLLY OWNED SUBSIDIARIES, MICROSOFT DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE OS COMPONENT AS FOLLOWS:

DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MICROSOFT AND ITS SUPPLIERS PROVIDE TO YOU THE OS COMPONENTS, AND ANY (IF ANY) SUPPORT SERVICES RELATED TO THE OS COMPONENTS ("SUPPORT SERVICES") AS IS AND WITH ALL FAULTS; AND MICROSOFT AND ITS SUPPLIERS HEREBY DISCLAIM WITH RESPECT TO THE OS COMPONENTS AND SUPPORT SERVICES ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) WARRANTIES OR CONDITIONS OF OR RELATED TO: TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, QUIET ENJOYMENT, QUIET POSSESSION, AND CORRESPONDENCE TO DESCRIPTION. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE OPERATING SYSTEM COMPONENTS AND ANY SUPPORT SERVICES REMAINS WITH YOU.

EXCLUSION OF INCIDENTAL, CONSEQUENTIAL, AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MICROSOFT OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE), NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE OS COMPONENTS OR THE SUPPORT SERVICES, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS SUPPLEMENTAL EULA, EVEN IF MICROSOFT OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

LIMITATION OF LIABILITY AND REMEDIES. NOT WITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF MICROSOFT AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS SUPPLEMENTAL EULA AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE OPERATING SYSTEM COMPONENTS OR U.S. $5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

From McAfee.com's "Software License Agreement" for evaluation version of VirusScan 4.0
The evaluation version of VirusScan 4.0 can be downloaded from http://download.mcafee.com/eval/evaluate.asp Found by Vergil Bushnell at 3:47 PM, March 1, 2000
No liability for consequential damages. In no event shall Network Associates or its suppliers be liable to you for any consequential, special, incidental, or indirect damages of any kind arising out of the delivery, performance, or use of the software. Even if Network Associates has been advised of the possibility of such damages. In no event will Network Associates' liability for any claim, whether in contract, tort, or any other theory of liability, exceed the license fee paid by you, if any.
From Gator.com's "SOFTWARE LICENSE AND TERMS OF SERVICE NOTICE" for Gator
Gator can be downloaded free from http://www.gator.com/download/nav.html. Found by Vergil Bushnell at 2:46 PM, March 1, 2000
Disclaimer of Warranty. GATOR.COM PROVIDES THE SOFTWARE AND THE SERVICES "AS IS" WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALL RISK OF QUALITY AND PERFORMANCE OF THE SOFTWARE OR SERVICES REMAINS WITH YOU. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.

Limitation of Remedies. IN NO EVENT WILL GATOR.COM, ITS EMPLOYEES, DISTRIBUTORS, DIRECTORS OR AGENTS BE LIABLE FOR ANY INDIRECT DAMAGES OR OTHER RELIEF ARISING OUT OF YOUR USE OR INABILITY TO USE THE SOFTWARE OR SERVICES INCLUDING, BY WAY OF ILLUSTRATION AND NOT LIMITATION, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING LEGAL FEES, ARISING OUT OF SUCH USE OR INABILITY TO USE THE PROGRAM, EVEN IF GATOR.COM OR AN AUTHORIZED LICENSOR DEALER, DISTRIBUTOR OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, GATOR.COM'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

No Gator.com Liability. Gator.com assumes no liability hereunder for, and shall have no obligation to defend you or to pay costs, damages or attorney's fees for, any claim based upon: (i) any method or process in which the Software or Services may be used by you; (ii) any results of using the Software or Services; (iii) any use of other than a current unaltered release of the Software; or (iv) the combination, operation or use of any of the Software or Services furnished hereunder with non-Gator.com programs or data if such infringement would have been avoided by the combination, operation, or use of the Software or Services with other programs or data.


Comments and suggestions to Vergil Bushnell vbushnell@cptech.org

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