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No One Agrees to an Unread Agreement!
by Steve Gibson, Gibson Research Corporation
Fine Print Funny Business
It is NOT ACCEPTABLE conduct to bury significant and onerous intent within the fine print of a software license agreement and to reply upon the fact that most people will never read or comprehend its meaning. The test for whether this is being done is simple enough: If a majority of users who have innocently executed an "Agreement" would subsequently be surprised and upset when informed, in plain and simple language, what they had just agreed to, then the license is guilty of "Fine Print Funny Business."

In the PC era which trained most of us, the Internet was not pervasive and there wasn't anything like the "connectivity" we enjoy today. So, License Agreements were only about our promise not to rip-off the software's publishers. That was fine with the majority of us who had no malicious intent and were just anxious to get the product installed. So when we encountered the ubiquitous scrolling "License Agreement" we would simply nod to ourselves, perhaps briefly check that we weren't planning to rip-off the publisher, then look for the "Accept" button.

But, as you'll see from the "Agreement" below, this new connected era has changed things a great deal. Once you get some sense for the "boilerplate" aspect of the agreement, please see the two different colors of highlighted red text. . .

END-USER LICENSE AGREEMENT FOR TRANSCOM SOFTWARE TRANSCOM'S BEELINE

By installing or using the software ("Software") or other electronic content included with this agreement you ("End-User") accept the terms of this license with TransCom Software Inc. ("TransCom"). If you do not agree to the terms of this agreement and you are also the original licensee of this product, promptly return the product together with all accompanying items to your dealer for a full refund. This is the entire agreement between the parties relating to this product and supersedes any purchase order, communication, advertising or representation concerning the product. No change or modification of this license will be valid unless it is in writing and is signed by TransCom.

USE OF SOFTWARE PRODUCT LIMITED TO EVALUATION. TransCom grants you a non-exclusive license to use the Software for a limited period of 15 days if your use of the Software is for the purpose of evaluating the suitability of the Software for a given task and whether to then purchase an ongoing license to the Software. If you are using the Software on this basis, you are not entitled to support or any form of assistance. Such evaluation Software is provided on an "AS IS" basis, without warranty of any kind, including without limitation the warranties of merchantability, fitness for a particular purpose and non-infringement. The entire risk as to the quality and performance of the Software is borne by you. Should the Software prove defective, you and not TransCom assume the entire cost of any service and repair.

LIMITED USE LICENSE. When license fee is paid, TransCom and its suppliers grant you the right to use one copy of the accompanying product for your personal or professional use only. This license and the restrictions in this agreement cover both the Software and the other electronic content of the accompanying product. TransCom or its suppliers reserve all rights not expressly granted. This License does not constitute a sale and does not authorize a sale of the Software or anything created thereby. You must treat the Software and associated materials and any elements thereof like any other copyrighted material (e.g., a book or musical recording). This Agreement is governed by the internal substantive laws of the State of California (and not by the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended). In the event you fail to comply with any of the terms or conditions of this license, your rights to use the Software will end, you shall stop using the Software, remove the Software from your computer, and permanently erase all copies of the Software. You may be held legally responsible for any copyright infringement that is caused or encouraged by your failure to abide by the terms of this license.

YOU MAY:
* Use the Software on a single computer or on a network, provided that you have obtained individual licenses for each and all workstations that will access the Software.
* Make one copy of the Software solely for back-up and archival purposes in machine readable-form, provided such copy must contain all of the original Software's proprietary notices.

YOU MAY NOT:
* Permit other individuals to use the Software except under the terms listed above.
* Use the Software or cause the Software to be used on more than one computer at the same time including using the Software across the network system.
* Permit concurrent use of the Software under any other form technically possible.
* Sublicense the Software.
* Copy the Software except as provided in this Agreement.
* Modify, translate, reverse engineer, de-compile, disassemble (except to the extent applicable laws specifically prohibit such restriction), or create derivative works based on the Software.
* Rent, lease, license or otherwise transfer this Software without the express written consent of TransCom, except that you may transfer the complete Software copy and accompanying materials on a permanent basis, provided that no copies are retained and the recipient agrees to the terms of this Agreement.
* Publicly perform or publicly display this Software.
* Use any of the content for any commercial purposes or any purpose other than for incorporation into projects produced with the Software for home entertainment, personal and educational purposes except as outlined herein.

LIMITED WARRANTY. TransCom warrants that for a period of ninety (90) days from the date of acquisition, the Software, if operated as directed, will substantially achieve the functionality described in the Documentation. TransCom does not warrant, however, that your use of the Software will be uninterrupted or that the operation of the Software will be error-free. TransCom also warrants that the media containing the Software, if provided by TransCom, is free from defects in material and workmanship and will so remain for ninety (90) days from the date you acquired the Software. TransCom's sole liability for any breach of this warranty shall be, in TransCom's sole discretion: (i) to replace your defective media; or (ii) to advise you how to achieve substantially the same functionality with the Software as described in the Documentation through a procedure different from that set forth in the Documentation; or (iii) if the above remedies are impracticable, to refund the license fee you paid for the Software. Repaired, corrected, or replaced Software and Documentation shall be covered by this limited warranty for the period remaining under the warranty that covered the original Software, or if longer, for thirty (30) days after the date (a) of shipment to you of the repaired or replaced Software, or (b) TransCom advised you how to operate the Software so as to achieve the functionality described in the Documentation. Only if you inform TransCom of your problem with the Software during the applicable warranty period and provide evidence of the date you purchased a license to the Software will TransCom be obligated to honour this warranty. TransCom will use reasonable commercial efforts to repair, replace, advise or, for individual consumers, refund pursuant to the foregoing warranty within 30 days of being so notified. THIS IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY TRANSCOM. TRANSCOM MAKES NO OTHER EXPRESS WARRANTY. TRANSCOM FURTHER MAKES NO IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, AND OF NONINFRINGEMENT OF THIRD PARTIES' RIGHTS; SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTY, SO LIMITATIONS MAY NOT APPLY TO YOU. NO TRANSCOM DEALER, AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY. If any modifications are made to the Software by you during the warranty period; or if the media is subjected to accident, abuse, or improper use; or if you violate the terms of this Agreement, then this warranty shall immediately be terminated. This warranty shall not apply if the Software is used on or in conjunction with hardware or software other than the unmodified version of hardware and software with which the Software was designed to be used as described in the Documentation. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY BY JURISDICTION.

LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL TRANSCOM OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS OR REVENUES, LOSS OF SAVINGS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL TRANSCOM BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT TRANSCOM RECEIVED FROM YOU FOR A LICENSE TO THE SOFTWARE, EVEN IF TRANSCOM SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. FURTHERMORE, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

END-USER INFORMATION. The name, address and payment information that you provide when you use TransCom's BeeLine, together with information regarding the manner in which you use TransCom's BeeLine and/or the Internet, will not be processed or disclosed by TransCom except as permitted by this Agreement.By becoming an End-User, you hereby agree that TransCom may share with other parties both aggregate information and limited individual information gathered during your use of TransCom's BeeLine and/or the Internet. "Aggregate Information" is information that describes the habits, usage patterns and/or demographics of its End-Users as a group but does not indicate the identity of the particular End-User. "Individual Information" is information about an End-User presented in a form distinguishable from information relating to other End-Users but not in a form that enables the recipient to personally identify any End-User. You also agree that locator information about you may be gathered, processed or used as provided in the following paragraph. "Locator Information" consists of an End-Users name, e-mail address, physical address and/or other data that enables the recipient to personally identify the End-User. You agree that Locator Information on you may be gathered, processed or used in the following instances: first, TransCom's BeeLine may provide Locator Information on you to TransCom so that TransCom may notify you directly of special offers and communications regarding TransCom's products. In addition, although Locator Information will not be disclosed directly to a third party except as described above, TransCom's BeeLine may use Locator Information to forward special offers or communications from selected companies to TransCom via TransCom's BeeLine. Locator Information and Individual Information will be processed and stored by TransCom in the United States and, if you do not live in the United States, possibly in your country of residence. You may contact TransCom to determine whether such information has been accurately recorded and, if not, to request correction of any inaccuracies in the information recorded by TransCom.

REGISTRATION. By installing or using the Software, you hereby agree to provide complete and accurate information on your registration form, including your legal name, verifiable e-mail address, address, and telephone number. You agree to notify TransCom within 30 days of any changes in the customer Registration Data. Upon acceptance of your registration, you will be assigned a registration number for exclusive use. Your number may not be divulged to others. You are responsible for maintaining the confidentiality of your registration number and are liable for any harm resulting from disclosing or allowing disclosure of any registration number. In the event of breach of security, you will remain liable for any unauthorized use of TransCom's BeeLine until you notify TransCom customer support via e-mail at beeline@transerve.com. You are responsible for all activities and charges resulting from use of your Customer Account, and for ensuring full compliance with the terms of this Agreement. Your Customer Account may not be transferred without prior written approval from TransCom and is subject to any limits established by TransCom.

HIGH RISK ACTIVITIES. The components are not fault-tolerant and are not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the software could lead directly to death, personal injury, or severe physical or environmental damage ("high risk activities"). Transcom and its suppliers and its resellers specifically disclaim any express or implied warranty of fitness for high risk activities.

U.S. GOVERNMENT RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions set forth in the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or at 252.211-7015, or to TransCom Software Inc. standard commercial license, as applicable, and in similar clauses in the NASA FAR Supplement. Contractor/manufacturer is TransCom Software Inc. The Lake Building, Road Town, Tortola, British Virgin Islands.

EXPORT RESTRICTIONS. You may not export or reexport the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations.

A reading of the fine print buried inside this "Agreement" makes several things clear:

  Anyone using Transcom's Beeline is under active surveillance. In fact, the language reads:

"By becoming an End-User, you hereby agree that TransCom may share with other parties both aggregate information and limited individual information gathered during your use of TransCom's BeeLine and/or the Internet."

That last phrase: "during your use of BeeLine and/or the Internet" is troubling. This gives them the right not only to watch and record your use of their product, but also any other use you make of the Internet. Given the "Fine Print Funny Business" nature of their License Agreement, I wonder how many BeeLine users know what they've agreed to?

  I've read and re-read the sentences explaining the use of the End-User's "Locator Information" (consisting of Name, eMail address, physical address, and/or "other information" - I guess that means whatever else they want). But it evades understanding. The Agreement says:

"TransCom's BeeLine may use Locator Information to forward special offers or communications from selected companies to TransCom via TransCom's BeeLine."

Does anyone really know what that says? As near as I can tell, this says that Transcom can use the End-User's personal data to forward special offers or communications from selected companies. This seems to say that Transcom is free to divulge your name, eMail address, and physical address to other companies.

And for all this you pay them?

In any event, I plan not to be stung by BeeLine and I'd imagine that most fully-informed people would feel similarly. It is pretty clear that Transcom's BeeLine fails a number of the articles of the code of backchannel conduct and that its technology probably merits closer inspection as well.

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Last Edit: Oct 06, 2003 at 13:29 (5,181.40 days ago)Viewed 3 times per day