Now that readers have identified last week's "mystery license" as the EULA for Autodesk's AutoCad 2005, it's time to take a closer look at it. But we're not going to examine its many grossly unfair terms - that comes later. Instead, this week I want to consider one section of the AutoCad license that might actually help us define what a fair software warranty should say.
As I mentioned last week, one somewhat redeeming feature of the AutoCad license is its limited warranty. It reads:
"Limited Warranty. Autodesk warrants that, as of the date on which the Software is delivered by Autodesk and for ninety (90) days thereafter, the Software will provide the features and functions generally described in the User Documentation and that the media on which the Software is furnished, if any, will be free from defects in materials and workmanship. Autodesk's entire liability and Your exclusive remedy under the limited warranty provided in this Section 5.1 will be, at Autodesk's option, to attempt to correct or work around errors, to replace the defective media on which the Software is furnished, if any, or to refund the license fees and terminate this Agreement."
No, it's not the best warranty you'll ever see, but it is certainly an improvement over the complete lack of warranty -- or a warranty for media defects only -- that many software companies offer. I think it's also a little better than another limited warranty you will sometimes find that promises the software "will perform substantially as described in the user documentation." There's a lot of room for argument in what "substantially" might entail, whereas Autodesk's warranty seems more straightforward.
Of course, a far better warranty from the customer's point of view is a no-questions-asked money-back guarantee. And some software products, including some of Microsoft's, do give you 30 or 60 days to return the product for a refund. But you're generally not going to see that on software products that are as expensive as AutoCad. (And it's only fair to point out that a free trial version of Autocad is available, which is roughly equivalent to what the money-back guarantees are providing.) So I don't think we can demand that all software companies provide a full money-back guarantee.
What we're looking for is a warranty that any software company that charges money for its products should be willing to offer while giving customers protection against products that don't work to their reasonable expectations. The AutoCad limited warranty at least comes close in that respect. Certainly it's hard to see how any software vendor could justify not being willing to warrant at least that much.
But there are a few problems with tying the warranty to the documentation. For one thing, it seems like more and more software ships with virtually no documentation, and we don't want to give any software publishers another reason for not providing a manual. And even if there is documentation, the customer generally can't see it until after purchasing the product. A fairer warranty would be one that's based on information the customer was most likely to rely upon in making the buying decision.
So what if we take the language from AutoCad's EULA but substitute the word "website" for "User Documentation?" If a software product doesn't provide the features and functions generally described on the publisher's website, there can be no denying the customer is entitled to a fix or a refund. Actually, the legal argument could be made that the product descriptions on a vendor's website constitute an express warranty that can't be disclaimed, no matter what the sneakwrap says. So a vendor offering such a warranty would only be agreeing to what any court outside Virginia and Maryland (the UCITA states) might very well say they are obliged to do anyway.
Is that the software warranty we've been looking for in our project to define terms that are fair to both customers and vendors? What suggestions would you have for improving it? Write me at Foster@gripe2ed.com and let me know what you think.
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