>>>>> On Thu, 06 Jul 2000 11:38:21 EDT, "Chloe Hoffman" <[EMAIL PROTECTED]> >>>>> said:
Chloe> Actually Henning's understanding of the nature of the clause Chloe> is correct. An indemnity is a different animal than a Chloe> warranty - they are not synonymous. A (no) warranty clause in Chloe> a software license typically addresses what a licensor Chloe> guarantees (or does not guarantee) with respect to the Chloe> software. If the licensor does not live up to the warranty (if Chloe> any) e.g. a warranty that the software would comply with the Chloe> docs was provided and the software does not, the remedy is Chloe> typically breach of contract/termination (although sometimes Chloe> other remedies are provided) and the damages would involve the Chloe> damages suffered by the licensee (subject to limitation of Chloe> liability clauses). Chloe> An indemnity however typically goes after a different concern Chloe> (although it can overlap in coverage in some cases with a Chloe> warranty e.g. intellectual property infringement and a Chloe> warranty of title). An indemnity in a software license Chloe> typically addresses losses caused by third parties to one of Chloe> the contracting parties. In this case, the clause is trying to Chloe> protect SGI (licensor) from losses caused by its licensees' Chloe> "use" of the SGI code e.g. product liability suits brought by Chloe> third parties against SGI caused by the licensee(s), Chloe> third-party IP suits against SGI caused by the licensee(s), Chloe> etc. A warranty provided (or not) by SGI won't get them that Chloe> protection because the warranty/no warranty clause puts no Chloe> obligation on the licensee(s). SGI could require a warranty Chloe> from its licensees but that probably wouldn't give it the Chloe> remedies it wants i.e. SGI doesn't merely want to terminate Chloe> the agreement - it wants its losses to be covered. The type of Chloe> indemnity below is common in OEM/software distribution Chloe> agreements as well as in redistributables sections of Chloe> off-the-shelf commercial software licenses. Thank you for the clarification. Still I don't read Henning's interpretation there (or in what you've said above). It's not SGI can sue you if you use their software to compete with them. It's if someone uses their software they've gotten from you and that someone sues SGI takes no responsibility for that someone and they are all your problem. Is this an accurate reading of the above? Or is there more there? Jim Chloe> This is not legal advice, no attorney-client relationship is Chloe> established, etc. etc. :) >> From: James LewisMoss <[EMAIL PROTECTED]> To: Henning Makholm >> <[EMAIL PROTECTED]> CC: James LewisMoss >> <[EMAIL PROTECTED]>, debian-legal@lists.debian.org Subject: >> Re: SGI Free SW license 1.1 compatability with Xfree86 style >> license >> Date: 05 Jul 2000 22:04:31 -0400 >> >> >>>>> On 05 Jul 2000 16:05:56 +0200, Henning Makholm >> >>>>> <[EMAIL PROTECTED]> >> said: >> Henning> Scripsit James LewisMoss <[EMAIL PROTECTED]> >> >> On 30 Jun 2000 18:49:01 +0200, Henning Makholm >> >> <[EMAIL PROTECTED]> said: >> Henning> That is a very broad clause: "Recipient will .. indemnify Henning> .. SGI from, .. any loss ... arising out of Recipient's use Henning> .. of the Covered Code". That seems to mean that if I use Henning> the software in a business that competes successfully with Henning> SGI, they could sue me and demand that I pay up for their Henning> lost profits. If that's a legal interpretation I'd say this Henning> is quite nonfree. >> >> >> This reads to me just as a no warranty clause. >> Henning> That is probably the intent of it. However, can you refuse Henning> that my reading is one of the cases the language actually Henning> covers? >> >> Actually yes. It looks like a standard no warranty clause. It >> uses big words and could have been clearer by just saying NO >> WARRANTY, but I don't see your reading in it. -- @James LewisMoss <[EMAIL PROTECTED]> | Blessed Be! @ http://jimdres.home.mindspring.com | Linux is kewl! @"Argue for your limitations and sure enough, they're yours." Bach