>>Everything is fine with your interpretation except that I have to agree to the EULA before I can read it. It is inside the shrink wrap. Breaking the shrink wraps binds me to the EULA. A detestable little legal trick.
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>Not really... If you don't agree with the EULA, return the software. Also, if you really want to be proactive, before you buy software, ask the company to fax/email the EULA before you buy. Peraonally, I think it is a bit impractical. Whether terms have been successfully struck down in litigation I don't know.
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>Remember, just because a term is in a contract does not necessarily mean it is a term that would survive if judicial intervention is sought. Otherwise, you would never see contract litigation...
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>My Ford example was a thinly vailed reference to Microsoft's contract terms, which actually do that exact thing.
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>Software vs. a car, I don't know if it is the same thing. Perhaps it is. Still, it would be interesting to see how courts have held.
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>The contract between me and Microsoft isn't really 'mutual'. Microsoft is operating as a sole vendor by virtue of it's monopoly practices. For several of the last few years I've had no choice in the matter. In fact, it has only been within the last year that Linux and KDE combined have begun to offer a competative product to the WinXX environment. Prior to that there was no real choice at all.
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>MS's standing as whether it is a monopoly or not is not the issue. I don't know what a 'mutual' contract is. I know what bilatereral and unilateral contracts are. As for having choice, I do see your point there. If it is seen as MS taking advantage of it market position to force unconcionable terms into an agreement, I could see a court striking them down. If I were the MS lawyer, I would argue that such terms are an industry norm, that MS is doing nothing unreasonable, that the issue is independent of MS's position in the market place.
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>How would you counter that???

First, as far as the term 'mutual' is concerned, I don't know what it means either. I quoted it because you used it in a previous post. :)

As to you last argument, I would assert that the "industry norm" is relative because Microsoft's monoplistic hold on the market place, combined with their stature as an 800 lb gorilla that few can afford to challange in court, has twisted normality to a point of being meaningless. For nearly ten years the competitive playing field has not been level. And while some coders may have found the situation advantageous, I consider that similar to the benifits that non slave-owning whites enjoyed because of slavery. Example: buying a cheap WinModem or WinPrinter or WinAnything is an advantage if you use WinXX. But, because modems, printers or whatever, made with with internal processors are no longer produced in quantity, they have risen in price, and users of other platforms must pay a premium. Further, some peripheral manufactures, especially video graphics adapters, no longer make generic drivers (self contained processors) but were 'convinced' by Microsoft to release only WinXX compatible drivers, giving those who choose to use other platforms few choices in what is supposed to be a free market place. Dell computers is another case in point. They have given Linux lip service but never made Linux available on the choice hardware. Then, because of not so suprisingly poor sales, they 'bow out'. If you ever navigated through the multiple and partially concealed button clicks, past a blizzer of MS ads, just to arrive at a page offering a poor choice of Linux desktop PCs, you would know what I mean. I ended up having my Athlon 1GHz box made by a specialist locally, using parts.

BTW, John, I find your discussions of law and legal issues very interesting. You make the profession appealing. Unfortunately, having been an investigator for 15 years (mostly homicides) I think counselors like yourself are in a minority, and most of the worst seem to have made their way to Washington or the bench. (I was recently at the point of deciding to carry a concealed weapon because a NE Supreme Court Judge decided that 2nd degree murder convictions must contain proof of malice.)