High Court rules software liability clause not 'reasonable'

Brilliant

This is a fantastic outcome. The number of times I've been outright lied to at software demos is astonishing. I do hope substandard vendors take note of this :)

Breath of fresh air

This seems entirely sane, and I hope starts a trend where software also has to be fit for purpose, like any other goods or servicees sold by companies.

However, I have a scarey feeling that the response to this may be to deliver millions of pages of documentation describing everything about the software (like MS interoperability docs) that makes it impossible to find out if something is fit for purpose, but allows the vendor to say that the customer was able to make an informed decision.

Fit for purpose?

It seems to be a tricky area.

For example:

installed software

software had insecurities that allowed unauthorised access to important resources

computer and immediate network became compromised through the newish software

This makes perfect sense.

Read any advert, no matter whether its for software or not, and you'll usually find that the person who wrote it knew exactly what the person reading it wanted to buy, but had no idea whatsoever about the product it was trying to sell.

As a perfect and incontrovertible example, we have companies advertising internet access described as "unlimited" when the companies concerned know full well that the product is not by any stretch of the imagination unlimited.

Of course, its incompetents like the ASA and Ofcom that we really have to thank for that particular bit of nonsense, because either of them if they actually did their job could insist that the inappropriate misrepresentation be discontinued. But as the judge proves, "unlimited" is just the tip of the "deliberate misrepresentation" iceberg and there's a lot more than just that which needs to be forcefully stamped out.

Caveat emptor

Why the hell didn't the hotel trial the software, pilot it and then review it properly?

Why is it the supplier's responsibility to know what the buyer wants and needs?

That hotel is one customer I would not want -- too much troubl, they don't know what they want or need, and then when it all falls apart it's *your* fault not theirs.

Hotel "Can we look at the manuals"

Supplier "No"

Hotel "How can we *find* out if it will do the job we want it to"

Supplier "You can ask us."

Hotel "Will it do the job we want it to."

Supplier "Absolutely"

The judge understood this is exactly what happened. The supplier ( if they are *any* kind of expert in the hospitality industry, which has had IT systems installed for at *least* the last 40 years) either *knew* the software could not hack it (so they lied when they said it could) or were so clueless about their business they did not know either way (and guessed).

Thumbs up. You've got to wonder how many other suppliers have pulled this routine in their T&C's. This stripping will continue until more customers take some *responsibility* for their purchasing decisions and give cowboy suppliers a kicking.

affect on EULAs

What effect is this going to have on EULAs in general ?

@Caveat emptor

No... you missed the point completely.

The Hotel was advised by the vendor that it would meet their needs. The hotel may not have the expertise to evaluate the software and has to rely on the vendor to understand the hotels requirenments.

Its a typical example of a vendor overselling or turning a blind eye to requirenments that they know they may not be able to meet.

Good verdict and another good article by Out-LAW.

Can of worms

I'm not saying anyone should be able to get away with lying or making deliberately exaggerated claims but this could have a seriously detrimental effect on smaller software producers, pushing up costs and forcing lots of pointless effort to be put into disclaimers throughout the documentation or spent on liability insurance. The equivalent of warnings everywhere saying "warning - hot coffee might be hot" or "this bag of peanuts may contain nuts". The lawyers will be happy, but I'd rather whoever is supplying my software devotes their efforts into writing and maintaining the code.

And what about freeware or shareware vendors? Every time you download and use a bit of software and it doesn't do what you hoped are you going to go and sue the author for £100,000 for wasting your time?

This is only a good judgement if you suddenly want all your software to cost 3 to 5 times as much, and free offerings to all but disappear.

Title? I don't need no reekin title!

I can see the point from the Hotel's side, but I have to say - come on guys, surely you insisted on a trial before purchase? If you did and they promised the issues were fixed in purchase version, then it's slightly better, but only to raise you from a moron to a cretin.

Putting ANY new software in any form of production use without running full test cycles on it in your environment, to ensure no compatibility/functionality problems is just plain irresponsible. I hear ya, there's too many lies from vendors that don't know their own product. Even more reason to be cautious when using something untested to RUN YOUR BUSINESS ON, don't you think?

No, I am not a software vendor. I'm an IT professional. And this just stinks of bad IT management pointing fingers and lawyers at a problem that should have stopped at their desk. That IT department is the grenade and the pin's somewhere the sun don't shine..

Not Caveat Emptor - Moronus Emptor

What kind of morons buy software that is apparently critical for their business without even trying it out or reading the manual?

Presume they can't be bothered to read the contract either - they signed a contract which explicitly said the vendor liability was limited.

If they had wanted more comeback in the event of a failing, they could have either negotiated the damages clause or chosen another vendor with more generous contractual liability terms.

When the purchaser dipshit whines "but they said it would work" to his boss, his boss goes whining to the lawyers who ultimately produce an absurd and dangerous ruling which says its ok to not do any due diligence when purchasing a product.

Hopefully the ruling was based on a technicality as it appears to be, and should not set a dangerous precedent.

You sold me some reading glasses. They weren't right for me and I couldn't read my winning lottery ticket before the deadline. You owe me £1 million. It's your fault.

Yeah right.

@Not Caveat Emptor - Moronus Emptor - brycec

NO - you are assuming that software is simple shrinked wrapped product.

Some products require configuration, setup and are sufficiently complex that product evaluation is either too difficult or in some instances completely impossible until the software is deployed.

Every vendor knows that the customer has the right to return if the product isnt fit for function. In situation like this, the vendor needs to do his own due diligence to ensure that what they are delivering is suitable for a customers needs.

I'm in the software industry and we have "products". That is is an equivelent to shrinked wrapped product with licensing governing the features enables. If a customer asks whether the product can do something but I know that the product cannot I will spell out the fact that it doesnt.

Customers will often put trust in the vendors to be honest because the vendors have the expertise required. (are you a washing machines engineer? no? heck how can you buy a washing machine if you havnt evaluated it? )

Its scumbags like that vendor that causes people to have scheptism about software and IT in general. So I've got EVERY reason to be watchful of this type of ruling but I think in this case it excelent!

RTFA

It's the way the T&C's are written that puts *all* the responsibility on the customer to find out if it's suitable for them *coupled* with the companies *denying* them the information necessary to find that out.

Yes, the customer *should* have trialled it with their existing system. Maybe the in house IT team knew this.

*Maybe* their boss played golf with the company rep and he seemed "A good egg."

*Maybe* the managers who are hotel management specialists smelt a rat but the IT types parroted the results of the demo ("Best thing since sliced bread..." .. Should have had it years ago" etc).

The Judge reckoned they had pretty much set it up to sidestep *any* responsibility for delivering a defective product (which it was). That deliberate nature is probably what wound him up.