Keep It or Trade It?: Prototype 2 (360)
Keep It or Trade It?: Tekken 3D: Prime Edition (3DS)
Keep It or Delete It? : Mass Effect Infiltrator (iPad)
Keep It or Delete It?: The Walking Dead Episode 1: A New Day (XBLA)
Keep It or Trade It?: Syndicate (PS3)
Craig Smallwood, File Photo.
Section 12. Limitation of Liability * * * IN NO EVENT SHALL NC INTERACTIVE . . . BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES . . . REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING CONTRACT, NEGLIGENCE, OR STRICT LIABILITY) ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, THE SOFTWARE, YOUR ACCOUNT OR THIS AGREEMENT WHICH MAY BE INCURRED BY YOU . . .
Section 15. ….that any action or proceeding instituted under this Agreement shall be brought only in State courts of Travis County, State of Texas.
and then ask the judge to dismiss the case. This is what NC Soft did. The judge however refused to dismiss. Why you may ask? US District Judge Alan C. Kay, noted that both Texas and Hawaii law bar contract provisions that waive in advance the ability to make gross-negligence claims.
This is significant as judges have routinely allowed all sorts of provisions to go unchallenged in EULA’s. There’s provisions in Ubisoft’s EULA that says they are not responsible if the DRM they install fucks up your system. Imagine if your plumber could do this. “By signing this work order you agree that Joe the Plumber shall not be liable for water damages done to your property due to but not limited to shoddy work, or drunkenness on the part of Joe the Plumber.” We wouldn’t allow such things for physical objects why should we stand for this when its a computer program.
Craig Smallwood may be a gold farmer but I hope he wins just so some sanity can be brought back to Licensing agreements.
