|Re: Product Liability and Software
Group: uk.legal.moderated · Group Profile
Author: GP Hardy Date: May 14, 2010 12:50
"John Briggs" wrote...
> On 14/05/2010 08:45, GP Hardy wrote:
>> "Adam Funk" wrote...
>>> Red Sky tried to rely on a clause in its standard terms and
>>> conditions which said that the only remedy available to customers
>>> if the software did not perform as advertised was to make use of
>>> its maintenance and support functions.
>>> The High Court disagreed and said that Red Sky's clause was unfair
>>> under the Unfair Contract Terms Act. It said that this Act applied
>>> and protected Kingsway because negotiations between the companies
>>> had been one-sided on the issue of liability.
>> ....but it seems to me (correct me if I'm wrong) that if Kingsway had
>> looked at the software properly before purchase, then the clause might
>> not have been deemed unfair.
> If they had been allowed to look at the software properly.
Unfortunately, the article does not say that Kingsway weren't allowed to
look at the software, just that they didn't. The closest I can get is "'If a
software publisher wants to make a customer responsible for product choice
it has to give the customer a fair chance of assessing the product',
Greenbank said." which is only an implication that assessment wasn't
Either way, they didn't look at the software. Does that not make them
partially responsible for the fact that it didn't meet their requirements? I
know that in an ideal world we should be able to be accurately told its
features and limitations and trust the advice to be true, but for a
mission-critical application in a huge turnover business, I'd reasonably*
expect the customer to make more effort to see the software working in an
established, similar hotel chain.
Maybe the judge thought they were 25%% responsible, hence the difference
between their claim and what they were awarded...?
* I think it's reasonable, anyway.