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In the future, if you don’t know what you’re talking about, then at least admit it instead of trying to throw a bunch of unrelated nonsense at the argument and hoping something will stick.
You asked,.. why it was a grey legal area, I gave you an explanation, which you didn't understand, I explained the concept of "terms of sale" to you, ...which you didn't understand.
I've explained clearly why I wrote, what I wrote. and provided an explanation of the universal legal principles behind it.
I've tried to be a clear as possible, and provide you with simple "real world" examples,.
I can't make it any clearer.
Now you suggest that I'm intentionally fabricating information, to try to defend a statement which I either knew was wrong at the time,. or now know was wrong but am somehow unwilling to retract.
I have many years of retail / wholesale experience, including dealing with trade internationally.
I do know what I'm talking about,.
the statement I made was TRUE, and I believe that I've answered your question clearly, and completely.
please do not accuse me of deliberately fabricating false information again.
Andy, I know you are convinced that you're an expert in this, but you're not. However, you refuse to accept that fact.
Let me give you some clear reasons why what you are saying is just nonsense, and has nothing to do with the real world.
First, you are focusing on "terms of sale". You seem to think that applies, in some way, to our discussion. It doesn't. And here's why:
DAZ doesn't SELL its software to you. No software company in their right mind SELLS their software to you. They provide you with a very limited LICENSE to USE their software, but only if you follow their rules for usage. And those rules are clearly outlined in their License Agreements. That is why DAZ doesn't provide you with a Terms of Sale agreement. They don't SELL you anything. Companies that sell you stuff, where they actually transfer ownership of a product to you, develop Terms of Sale agreements. And those agreements define stuff like shipping terms, and define risks and fees, etc., associated with the physical transfer of the products as well as transfer of ownership. So all of your discussion of "Terms of Sale" does not apply.
And also note that the License Agreement states: "This License is the entire agreement between DAZ3D and the User, superseding any other agreement or discussions, oral or written, and may not be changed except by a signed agreement."
That's why all of your talk of Terms of Sale and signage and product placement and cans of beans, etc., is just plain nonsense. THERE IS NO OTHER AGREEMENT, and nothing about product placement or signage or any of that other stuff you mentioned makes any sense whatsoever.
DAZ provides a License Agreement. And you should read it sometime. It's no different from what most other software companies provide. And it says stuff like "...and we grant the user a license to use the Product in accordance with the terms of this License." And it also defines the stuff you CAN'T do with the software, which you otherwise could do IF they had sold it to you. You don't own the code, and can't, for example, reverse engineer it.
And it also defines, in BOLD text, the fact that they are providing the code AS IS, and no matter what state the code is in (alpha, beta, final, whatever), DAZ is not responsible for errors:
"EXCEPT FOR THE EXPRESS WARRANTY ABOVE , THE PRODUCT IS PROVIDED ON AN "AS IS" BASIS, WITHOUT ANY OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE"
You talk about "fitness for purpose", and clearly that's nonsense. DAZ specifically states they make no warranties on '...fitness for a particular purpose'. Or 'satisfactory quality'. Or any other warranty.
Now, you also seem convinced about some strange "grey legal area", which I explained does not exist. But apparently you're convinced you're an expert, and that there's some "grey area" involved if DAZ decides to charge for a beta version. And then you go into this rambling discussion about DAZ not providing some clear agreement on how someone gets the final version. And honestly I have no clue what point you're trying to make.
DAZ provides their license for software that is "AS IS". There are NO GUARANTEES about future software or upgrades. DAZ has no obligation about future upgrades. But for some reason you seem to think they do. But you can't provide any reason for that, other than something about cans of beans.
Andy, we can go on and on with this, and I can give you a lot more reasons why what you're saying is nonsense. But I know that you will never back down, in spite of the fact that you don't know what you're talking about. You'll keep coming up with unrelated and irrational discussions in an attempt to sound like you're right. But instead of doing that, I suggest you actually study the subject and learn something, instead of convincing yourself that you're an expert based on what is apparently some extremely limited experience and/or knowledge.
And you might want to start by reading some License Agreements. And then read some Terms of Sale from some companies that actually sell products. And then you might even take a look at what's called the Uniform Commercial Code. And since you fancy yourself an expert on international trade, take a look at the "United Nations Convention on Contracts for the International Sale of Goods". Some of it is boring legal stuff, but some of it is kind of interesting.
And by the way, Andy, the License Agreement is very, very clear that in order for you to be granted a license to use the software, you must give your UNCONDITIONAL agreement to all of the terms of the License Agreement. And if you can't agree with all of the terms, then it states:
"IF YOU DO NOT AGREE OR DO NOT WISH TO BIND YOURSELF OR THE ENTITY YOU REPRESENT: (A) DO NOT INSTALL, UPLOAD, ACCESS, OR OTHERWISE COPY OR USE THE SOFTWARE..."
So if you think DAZ should be providing some sort of warranty on fitness for purpose or upgrade paths or whatever, and the agreement says they don't provide any such warranties, then maybe you shouldn't be using the software......
Can we please try to be civil, and keep the thread on topic without the personal attacks.
chohole said:Can we please try to be civil, and keep the thread on topic without the personal attacks.
Yes. I apologize to Andy and everyone for getting personal. It was stupid.
HI Joe :)
I can see where there's a misunderstanding now.
The End User licence agreement (EULA) defines the rights and limits of the ownership and usage of the digital media or assets.
It's part of the "product" you've purchased, ..It;s the Licence to use the Digital part of the product, EG the models or software.
As is part of every product installer, which you need to read, and accept, before you can install the Digital media or software.
So, you're paying money (electronically) for that (Digital) product, and the licence to possess it, and use it, under the terms of the licence agreement.
So,.. Daz3D "Sell" you the Complete Product.
that's how they make money, and all other software retailers "Sell" you products, either digital, or physical, and if they're physical products,. then there would be shipping and handling concerns,. which is not relevant here ,..and not part of any terms of sale unless shipping and handling costs, are offered as part of the "product".
The EULA does not define which specific product you've purchased, or for what price.
that''s defined in the way the product is offered you for sale.
When you go to the store,. you're presented with the images of the product , a description of the product , and the price.
The product description was Carrara 8.5 beta. But .. Which version ? .. do I get a Full PRO serial number. ?
that wasn't clear,
The content's of what was being offered for sale was unclear,..
Q: Does it include the Carrara Native Content, and all the C8 Pro Bundle software ?
As the product was clearly being sold as a Beta version,.. but was presumably still in development,..
What happens with this version I'm buying now, when the serial number expires, or the next beta version is released ?
those terms were not clear,. at the point of sale. (checkout)
The terms of sale, ,,,,What product is being offered to me, for sale, and at what price,
As for Product upgrades and updates, Daz3D are exceptional in allowing access to your purchase history to re-download the latest version of a product you've previously purchased, and at no additional cost.
That highlight the first part of the agreement you quoted,
“This License is the entire agreement between DAZ3D and the User, superseding any other agreement or discussions, oral or written, and may not be changed except by a signed agreement.”
If you're re-downloading the latest version of a product you've previously purchased,. then the Licence you're agreeing to NOW,.. supersedes that original "older" licence.
..and we grant the user a license to use the Product in accordance with the terms of this License.”
If you're re-downloading the latest version of a product you've previously purchased,. then the Licence you're agreeing to NOW,.. supersedes that original "older" licence.
..and we grant the user a license to use the Product in accordance with the terms of this License.”
If you agree and follow the terms,.. the licence is valid,.
if you do not agree, or otherwise break the terms,.. the licence is no longer valid.
the Warranty exceptions to liability for Daz3D are common to all licence agreements. but obviously differently worded for each company or purpose.
I'm in no way suggesting that any company or individual on this planet or any other, at any time, is either directly or indirectly responsible or in any way liable for any event which may have occurred or may ............
in simple terms if you spill your coffee on your shirt, it's not the fault of the coffee manufacturers.
if you install software on to your computer and break something, it's not our fault
but again this all relates to the "Usage Licence" agreement which allows you to use the 3D models or software, .
and it's what you're paying for, as part of the overall "Product" which is being "sold" to you in the store.
Obviously,. what products you choose to purchase in the store, is your choice. but....
The way the product is presented to you,..
The Images on a page, with a description of the contents, and the price of that item.
Together, those elements provide the customer with the terms under which that product is being offered to them for sale.
You get this thing,. for this amount of money.
The customer has an unwritten expectation that the product will be what they've been show (as seen) or, and as described.
There's also the expectation that the product will contain everything that was described., will work as intended, and is being sold as fit for purpose.. Note: these are expectations.. but,. it's an expectation which is shared by the retailer or manufacturer..
It's in any companies interest to ensure that the products which they offer for sale are fit for purpose,.
and that the terms under which they present them for sale are clear, at the time of transaction.
Daz3D have great product testers, and everything the store is checked, and tested before it's released for sale.
That's why seeing the beta , appear in the store, suddenly for sale,.. was so unusual.
I would have expected an announcement from Daz, and perhaps a sale or special offer to announce the fact that the beta was available for sale.,
As it turns out,. it's no longer available,.
so it's a moot point now,.
but,.. hopefully it's clearer that there's a difference between the "Licence" to use the 3D models or software, (what you're paying for)
Which is different from the way the product is presented to the customer, for sale, (what am I getting for my money)
Just to add ...
I'm no expert at anything. and wouldn't claim to be,..
I'm here to learn as much as anyone,.
Andy, I'm sorry, but I have never heard such meaningless gibberish in my entire life.
There's an old saying: "There's no reasoning with the unreasonable". And it's certainly true in your case.
Oh Joe, when you were gone I thought I missed you.
Now you are back I realise that I didn't miss you at all.
It's no use trying to antagonise Andy - he is the most patient and kind person on this forum.
If you're aim is to try and stop people posting on this forum by being rude to them so that they don't come back - well you have suceeded in a few cases I see.
You must be very proud of yourself.
Headwax, how did you go back to one post again?
I want to lose my embarrasing addict status?
heh, everytime I make a post I divide it by my birthday, then multiply it by the number of my love handles - I bet it says "2" now :)
but I am sure I have spoken to you before on this forum, or are you not Andrew Finnie but some alternative headwax
argh, I just logged in with the wrong thingy, that's all,
now are you trying to up my post count or what :)
to rpove who I am, who put you onto Lynne's cats eh?
Was it me? Yes? And does Julia Guulllard need a new bra? Yes :)
And what about the oppoistion leader's budgies smuggler's eh? I bet he's no abbot ....
I mean the stupid thing was that I called myself headwax about a million years ago after a surfbrand here called Head Worx, and now there are millions of headwax's out t here - no accounting for taste :( :)
member search only finds you
so I must be going bonkers
remembering imaginary posts :grrr:
okay you had me worried, I checked in the mirror and I am real .... well I think t hat was me
ahh head wax headwax
yes yes you can see how I screwed up up
anyway we better stop chatting, we are getting in the way of Joemama antangganganionising Andy.......
make that attempting to antangonise Andy :)
my browsers playing funny buggers since the nvidia driver update a few hours ago
had to download your vid to watch it
is there meant to be sound with that scary dental work display?
Joe who? I was thinking it odd Andy talking to himself so extensively about EULA's and crap
only joshing, do not have JM2000 on ignore but to those who do, this is how it would look LOL!!! trollololol0lol %-P
sorry Wendy, it was a wip. It was an add for wooden teeth, for all those people with steel teeth that had rust problems, I thought wooden teeth would become a cheap viable sustainable alternative - but I was wrong. We quickly realised after the first prototype that lip splinters would be a major concern, espacially with the under fiftyfives when they were making out or just kissing their mother in lasws goodnight... you know how bad lip splinters can be, especially if left untreated. They can turn core and cantakerous. So the whol wooden teeth t hing was an abject failure and the advertising company never got around to providing us with a sound track. I was hoping for something catchy by Elvis, but apparently he is dead...?
Joe? Oh I had him on my ignore list for a week or two but I kept peeking to see who he was insulting next.... so I eventually gave up and put him on my must read list..... we all make mistakes, eh?
Non, je ne regrette rien
Thanks, ..needed a good belly laugh.
Heh, pleasure Andy. Life is nothing if there is no laughter. ;)
so has anyone from daz said how much this .5 release is going to cost?
Okay, in an attempt to reverse my dismissive attitude concerning Andy’s comments, and to give the comments the respect they deserve, as well as make sure that the issues and the facts are clarified, I’ve reviewed the discussion to try to understand and address those issues and concerns.
Now it all began with Andy saying “…no Beta software should be sold, as that’s entering into a (grey) legal area between the retailer, and the rights and expectations of the paying customer”. Now, clearly, the “no Beta software should be sold” statement is incorrect, and I gave clear examples of how beta software is sold all the time. And then he said the reason it shouldn’t be sold is because of a “(grey) legal area”. Again, I showed in subsequent discussion clear evidence that there is no grey legal area.
And then he morphs the discussion away from the initial “no Beta should be sold” to now focus on a particular incident where the 8.5 beta was apparently (and mistakenly?) offered for sale on the DAZ website. It appears his concern was that there were no “terms of sale” listed on the website and associated with the purchase. I then clearly explain why “terms of sale” don’t apply to a licensed software product, and that his terminology and expectations are incorrect. And in fact, his proposal that there are implied “terms of sale”, based on product packaging and placement and signage and price and description was incorrect, since the DAZ License Agreement states that the License Agreement is the ONLY agreement between DAZ and its customer, and there are NO OTHER implied or specific agreements, including implied terms of sale. They don’t exist.
And then he morphs the discussion to customer expectations for the software to be “fit for purpose” and “fit for retail”. And I explained how DAZ clearly states in its License Agreement, which we all accept, that the software is offered “AS IS”, and they make no warranty whatsoever regarding “fit for purpose”, or “satisfactory quality”, or fit for anything, including any other warranty. Furthermore, when any customer downloads and installs the software, and accepts the license agreement, that customer is EXPLICITLY WAIVING his expectation for “fit for purpose”, or any other expectation. They are accepting the software “AS IS”, no matter how it is.
And then he morphs the discussion to what were, apparently, his concerns about the listing for the “for sale” 8.5 beta not being clear in terms of what you’re getting for your money. Nothing to do with the original discussion involving selling betas. And he still seems to maintain that there is an expectation of “fit for purpose”, an expectation which is clearly waived by users when accepting the license agreement.
So, fine. If a software product is listed, but there isn’t enough information for you, then yeah, it might make you upset. But I see that all the time. As a matter of fact, I was just discussing a plugin for Carrara that has virtually NO useable information about its functionality included with its listing. But is that against the law? No. Is it a “grey” legal area? No. A company is not obligated to provide a certain amount of information about a product for sale. Especially when you are getting merely a license to use something that is offered "AS IS". Many companies (like DAZ) do go the extra mile and provide demo versions of their software that you can try out, making it very clear to customers what the software includes. But if that doesn’t provide enough information on the actual version on sale, then that’s kinda too bad. But there’s not a lot you can do other than send an email to DAZ asking for clarification. But it is NOT, in any way, a legal matter, grey or otherwise.
Now, if there is an issue with the advertising of the product, making false claims, or the product not meeting the description, etc., then there are laws regarding that. In the US we have “Truth in Advertising” laws. But I don’t think this applies. In fact, most companies are extremely conservative about making claims for their products, and it’s extremely rare that you’ll see companies making claims about their products that are (prove-ably) misleading and illegal.
And to be very clear, since it seems to be such a major consideration in the discussions, there IS NO expectation of “fit for purpose”, or anything else, associated with “AS IS” software. It does not exist. DAZ specifically states it doesn’t exist, and when you accept the agreement you agree it doesn’t exist. Now you can expect whatever you want, but DAZ is in no way obligated to comply. Of course, most companies DO accept an obligation to provide a certain quality, but are not legally obligated to provide a certain fitness or quality.
Which is why I suggested you read the Uniform Commercial Code. It specifically allows companies to erase the requirement/expectation for “fit for purpose”, or any other requirement/expectation, by claiming it is offered “AS IS”. Although you need to follow the procedures they outline in order to claim that (which, BTW, is the reason some verbage in the License Agreement is all capital letters). I know it seems logical that customers have expectations that the products are clearly described and are “fit for purpose” and are as we expect. However, that is not necessarily the law. Not every reasonable expectation that customers might have are backed by law. But often people tend to assume “well, it’s reasonable and it makes sense, so then that’s what the law requires”. Well, not really.
The End user "Licence" agreement,. is the Licence to Use the Digital media ...
The "product" you purchase,. contains the Digital media, and the User licence (agreement).
SO the FEE you PAY to the company, is for the Digital media assets (3D models or software) and the Legal Licence to use that product in the way it was intended to be used" (under the terns of the licence agreement)
In order to be able to install, and Use the digital media part of the product you've purchased,.
you must First agree to abide by the terms of that Licence of USE which you've purchased
If you don't agree , then the software will not be installed.
Again, .. you're stuck on the USE licence, since it's apparently an agreement,..
but it's a completely different thing... it''s the licence which allows you to use the software and posses a copy of it.
It doesn't say anything about Which Product you're purchasing,...
It doesn't say anything about how much you paid for the product.
Those terms,.. are what you NEED to know, and understand,.. before you can reasonably make the decision whether to Purchase the item,.. or not.
EG: What do I get for my money.
The EULA, is only available to you at the point if installation,.
Not at the "point of sale" .. so,.. it cannot be seen in any way, as a terms of sale,.. since it's only available to you after sale.
what's being offered to you, for money, ...and what do you expect to receive for that money.
(those are the basic terms of sale) (simplified)
EG: What item is being offered to me,.. for the money I'm paying.
You Need to have a description of what you're buying, and what you should expect to get,. and what fee you're expected to pay.
If you don't know (what you're purchasing) ...(what it actually includes), and how much you will be paying for that,..
then you cannot reasonably be expected to enter into such an unclear agreement.
The part about this End user "licence" agreement (superseding) all previous licence agreements.... Refers to any previous EULA you may have agreed to, for a previous version of that product.
in simple terms,
If this is an update to an existing purchase, to which (presumably) you've already agreed to the previous terms of the EULA,. when you installed it.
then this NEW agreement, nullifies that old one. and is now the main licence.
this is a legal mechanism to allow the terms of the EULA to be changed, altered and updated. ..as technology may change.
It supersedes any previous (End User Licence Agreement) for the use of the product. which you may have agreed to previously.
The Product fitness for purpose issue, is again something from the USER licence.
but generally these are a bunch of "cover all possible scenarios" which are exempting the company from any legal action taken against them.
As I mentioned in the last post,.. this is an (Expectation) that the product will work as intended,.. and it's a Shared Expectation.
You expect it to work, ..and so does the retailer...
No company intentionally sets out to sell you badly made, faulty goods.
Sometimes even products made by robots in a factory have flaws and errors,. since humans are involved at some level,.
so even from the highest quality manufacturing processes,
you MAY occasionally get something that doesn't work as it was intended to,..
This is as much of a disappointment to the Manufacturer or retailer as it is to the paying customer,. and is usually dealt with swiftly, and the company usually accepts the costs involved in resolving that issue.
They do that because the Manufacturer / Distributor / Retailer, all want to sell you the best products,. which are Fit for Purpose, and Fit for Retail,.
because it's in the interests of both parties to make things work, and keep you as a happy customer.
These are all parts of the EULA,. and they're all perfectly valid. and clear, but they have noting to do with the way in which the Sale or products are presented to you,.. and those Need to be Clear. to allow you to make a purchasing decision.
If you were buying the product,.. (as seen)
Which version did that price entitle you to. ? and would you expect to receive a valid serial number, which would not expire. ?
or,.. was this payment for use of the software until that serial number expires, ....and then you purchase the next version ?
until it expires ?
What about any included content,. since this is a PRO version, of the Beta,.. it should include the Carrara native content..
(which isn't supplied as part of the beta testing program)... ?
Again,.. these are the terms offered to you by the company, at the point of sale, which allow you to decide if the Product, (As it's being presented to you) ...(as Seen) ...with that description, ...and at that price, is the type of sales offer which you are willing to enter into.
I'm going to leave it there, because you're confusing the Licence, (to have, and to use the product)
with the way that it's presented for sale to you,..which are the terms of what you're getting for your money,.. and your ability to make a decision about that proposed sale based on the information supplied to you. before you part with your payment.
Not a licence (which is part of the product) to USE the "digital assets" of the product, which you can only possibly agree to, after you have parted with you payment for the product.
On the "Beta" and updates etc,,..
That example of how most companies who choose to create development income by making their software available for sale (usually at a reduced fee) ,.. Normally have "terms of sale" which will offer the customer the full Licence for the Final software, if they purchase the licence NOW, and are willing to wait while the product develops,..
There is NOTHING wrong with that,. since the terms are clear to the customer, at the point of sale.
The Licence you're paying for,. will have terms which you will have to agree to, and is the "legal licence" which allows you to use the software. (under the terms laid out in the agreement)
There's nothing wrong with selling anything in any condition,. as long as the customer is aware at the time of sale what they are purchasing.
Selling Beta software, in a way in which could be perceived as a "normal store product" is wrong, since that would be misleading.
Never mind, Andy. I was right the first time.
There's no reasoning with the unreasonable.
bigh said:moving on