A software developer's assertion that it wasn't liable for the shortcomings of its software has been rejected by the UK High Court in a case that has implications for other vendors and channel partners. As previously reported, London's Kingsway Hall Hotel had all sorts of problems when it installed hotel management software from …
click-wrap licences will be shot too pieces
Assuming that the courts in England carry this through to its logical conclusion that is.
...that this is the first in a line of court judgements that finally put paid to some of the ludicrous shilly-shallying and denials of responsibility that are common in most software licence agreements (both negotiated contract and shrink-wrap).
The IT industry in general has got away with delivering shoddy products for far too long now - and largely on a seeming basis of "Ohh, it's computers, it must be complicated, so don't blame us if it goes wrong!" If the industry wants to be taken seriously as an engineering endeavour, then perhaps it's time it started acting like one, rather than promising the earth, but delivering poorly-designed, badly-implemented and inadequately-tested balls of crap.
Of course, the customers need some education too - the next time that some snake-oil merchant cons you out of your hard-earned cash to supply a box of useless bollocks, then stuff it back down his throat with your boot and demand your money back. If enough companies get sued by enough people and enough of the cases are made to stick, then that will probably do more to improve the quality of software than any amount of SSADM, OO, rapid prototyping, UML, agile development, SOA or whatever the latest flavour of the month methodology happens to be.
"latest flavour of the month methodology"
The things you mention are heterogeneous software technologies, not software quality methodologies. And feel free to enlighten us on how getting sued would help improve software quality, given that you deride exactly the sorts of things we would have to use more in order to improve it on the first place? Fail.
"And feel free to enlighten us on how getting sued would help improve software quality,"
Simple. Get sued (and loose) often enough you go out of business.
The *survivors* will be a *little* more circumspect when it comes to claims about their products features, data import/export, customisability etc.
It's called evolution in action.
One way they *might* consider not getting themselves quite so deeply into the brown stuff is indeed to *use* some of those methodologies. But they will probably adopt the simpler option of getting their sales reps to talk less BS.
The article says: "The case illustrates:that if the supplier fails to inform the customer of the terms & conditions before the contract is entered into, the supplier cannot later rely on those terms & conditions, and in particular on the exclusions in those terms & conditions,"
Clickwrap licences DO make you agree to the terms before continuing. Whether or not you actually bother reading them is irrelevant, you will be ticking a little box saying "I read and agree". Therefore, this ruling may have less implication for such licences.
Reading between the lines, I think the main problem here is not the validity, or otherwise, of the licence, but rather the product was badly missold and the company tried to wiggle out of liabilities by pointing to Ts&Cs saying that support (equals more income for them, no?) was the only answer. Ts&Cs, it would seem, that were not suitably disclosed up front, which would have a massive outcome on the ruling - for you can't be held to agree to something you weren't aware of earlier...
The earlier version of this article didn't say anything about the hotel company not being made aware of the contents of the contract that they signed (surely it is a matter of practice to read a contract before signing it?!)
What the earlier article did say was that the supplier couldn't really rely on this part of their T&C because they did not provide the hotel company with sufficient information for them to identify that the software was not fit for the purpose for which they were buying it. Instead, the hotel company relied on the opinion of the software company that the software was just what they wanted, and was suitable for their purpose.
However, I am more than happy if courts will now look at T&C and stike down clauses that are unreasonable that say thinks like "The software does not have to work properly, if it doesn't we are not responsible for anything"
In most cases you can only click yes to the click wrap licence after you have paid your money and opened the packaging (most shops refuse to give refunds on opened software) but before you get to use the product, thus you rely on their advertising etc. to make the purchasing decision. So I would say this case is important in that respect. Unfair Contract Terms Act, 1977 and Unfair Terms and Consumer Contracts Regulations, 1999 makre it reasonably clear that you cannot restrict people’s rights in a one sided contract that they have no chance to negotiate. (IANAL)
hmmm would this apply to Microsoft as well ?
having had the pleasure of decades of fun and games with Microsoft products does that mean they to are now liable for for the time and effort I've spent resolving issues with their shoddy software ?
thats one opinion...
but in my 30 years experence of working with computer systems of all flavours is that on the whole windows is quite good.
windows only ever becomes un-stable when it is installed on shoddy hardware with crappy drivers or when 3rd party apps are installed to 'fix' its shortfalls.
i beg to differ...
Windows becomes unstable for many reasons, and some of those are definitely internal. For example the other day a customer's machine died due to low disk space. This was due to a .NET 1.1 patch that had been trying to install for several years. Each time it failed it left 8Mb of junk in the Windows Installer directory. This was supposedly a bug in Windows Installer that was fixed by MS, but the latest version of the Installer was already on the machine. The resolution to the problem was to run the command "MSIZAP G" and then uninstall .NET 1.1 entirely. Does this sound like a hardware or driver fault to you?
No, me neither. That is a bug in either Windows, .NET 1.1 or Windows Installer, or possibly all three or just a combination.
Me, 20 years this year.
well, ok, not all... but most...
I would be asking who origianally left the computer in a state of half installed dot net 1.1? Ok, there was a bug, but an easly fixed one, the bigger failure was on the side of the 'IT proffessional' who installed dot net in the first place.
In their claim that the software didn't meet their requirments, they produced the requirments they gave to the supplier?
As a developer who canstanly has to put up with a constant inability of customers to ask for what they want, i can sympathise.
Admittedly a commercial system is slightly different ot a purpose built one, but they still must have had a list of requirements that they evaluated it against before buying the thing. It's gross incompetence on teh part of whoever signed the deal if they didn't.
Does this mean the customers standard specifications of
"I want it to do what I want, not what I asked for"
is now enforcable by law?
Don't promise what you cannot deliver
No - but it does mean that suppliers can be held responsible when their sales staff promise that their products meet all their customer's requirements in the full knowledge that it is not true.
often the senior managers who approve the sale after being wined and dined by the sales people know SFA about their real requirements. The implementation is left to the people who were never involved in the decision - the poor plebs who have to use it.
this have nothing to do with buggy software
it is to do with advertised functionality that were later, after signing and paying for the license, found to be missing or didn't work as advertised.
so why is the software industry worried?
Paris, she too is not fit for purpose
As a supplier...
I have witnessed both cases, where the software has "struggled to cope with what sales said" and indeed where "sorry, we need it to do this now".
Therefore the terms and conditions that make up the contract need to count; absolutely agree that they must be available before an agreement is made; but with any software apart from shrink-wrapped - there is typically a demonstration, negotiation then order, followed by the signing of a form of licence or contract. So long as the terms are clear before entering into the agreement - they should stand - if that precludes the software having to be "fit for purpose" then it is for the buyer to ask for this to be removed, or review their choice!
As a previous commenter has noted, the story seems in this article to move towards the fact that the terms and conditions were presented post-contract.
This sounds like
... ERP software.
"it is to do with advertised functionality that were later, after signing and paying for the license, found to be missing or didn't work as advertised."
I can think of quite a few companies here in the U.S. that have talked about their ERP vendors and lawsuits in the same breath.
None have bothered, it's probably too expensive and seen as gambling/throwing good money after bad.
I didn't associate this article with clickwrap licenses until reading the comments.
not as broad as it sounds
from the first version of this article - several points not included this time:
a) the customer didn't trial the software
b) the customer didn't have the T&Cs reviewed
odd though it may seem they appear to have counted in their favour in this case in that they relied exclusively on the sales persons assurance that it would all be fine.
As I understand it, if they had trialed the software or attempted to negotiate on the terms then the finding might well have been that they had understood the product and the limitations better and hence they had been in a position to accept the limitations and the terms could have held.
As it was the only thing they relied upon was the sales persons assurance - and in light of this the court felt that the limitation was far to broad.
(I'm not a laywer but I do spend a reasonable chunk of my time reviewing supplier contracts - although after reading this I do wonder if thats time well spent)
Maybe they didn't have sufficient resources (i.e. people) in-house to perform a useful trial. Smaller companies often don't have many IT people (sometimes none) and consequently, rely quite heavily on their suppliers. This is fine when the suppliers are honest but tends to go astray when suppliers become unduly focussed on monthly sales.
Re: Ignorance (@AC 17/05/2010, 14:11)
OK, so shoot me for my choice of wording when I said "latest flavour of the month methodology"
However, over the course of a couple of decades in the IT game (before I got sick of it and bailed out a few years ago) I heard all of those things - and many others - being described as the one and only true way in which the software industry would finally be able to ensure that it produced quality products.
Now, I didn't necessarily believe this whenever I heard it because (a) I'd heard most of it before and (b) the person saying it was usually trying to sell me (or my employer) something, whether that was training courses, consultancy, books or some kind of gee-whizz development toolset.
Of course, all of those different things - development methodologies, software technologies, architectural development styles, call them what you will - can help you to produce better software. However, they don't guarantee it and, I'm prepared to bet, never will. I've seen hacked-up last minute fixes, produced on a diet of adrenaline and caffeine, that were still better designed, better implemented and more thoroughly tested than other bits of software that were supposedly developed according to all the strictures of "Method X" and which, basically, ended up as nothing more than extensively (although usually inaccurately) documented crud. That's just the way it is - give a good engineer bad tools and he'll still do a pretty good job, while a bad engineer can still produce complete abominations even if he's using the best tools in the world.
But that's not the main point here. My main concern is that we seem to have created a whole marketplace that operates in the basis of having the latest, whizziest bit of technological know-how in place as quickly as possible. Who cares if it isn't really ready for prime-time use? Who cares if we're not completely sure about whether it's really an appropriate solution to the problem? Some techno-dweeb has wittered on about it on his blog, Wired.com has picked up on it and convinced half the corporations in the western world that they simply MUST be using "Millikan's Magical Customer Extractor" or they'll be left behind in the ecommerce equivalent of the dark ages, so the accountants and sales-droids who are, basically, running the whole show on both sides go into a frenzied, collective orgasm of pushing the latest bit of lunacy on us all.
Meanwhile, it's the poor designers and developers who have to try to deliver the cock-eyed thing with insufficient time and resources. And it's the poor end user who has to live with the inevitable inadequacies when it all proves to be nothing like as magical as people were led to believe.
And, of course, thanks to the wonderful "Get Out of Jail Free" card that is your typical software licence agreement, it's the customer and end-user who ends up feeling most, if not all, of the pain.
That's the reason that I think that getting some software companies sued until the pips squeak might be a good thing. It might finally hit home with the management (i.e. accountants usually) that over-promising and under-delivering has really bad consequences for them, not just for the customer.
Mind you, better educated customers would probably help too. Having someone in a company in a position of authority who can look at the latest outpourings of the "next must-have technology!" brigade and say "Yeah, right, very interesting but we don't actually need it and we've got better things to spend our money on" is a good thing. If they also know enough to meet with the vendors who are trying to flog the stuff and say "No, you're talking bollocks and your system isn't really going to work like that at all, is it?" then that's even better.
This, interestingly, does appear to have been a slight failing on the customer side in this particular case. Although I still agree with the way that things went - until such time as software houses are made fully accountable for the quality of their products in the same way as most other companies are, there won't be a real incentive to get things right.
That's it, then...
The entire software industry, if not the entire computer industry will collapse if this is taken seriously.
Sell software (and hardware) that works, and does what was claimed? Oh, surely not!
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