Archive for February, 2011

Entire Agreement clause ineffective to exclude implied terms or misrepresentations

In the recent case AXA Sun Life Services plc v Campbell Martin Ltd and others [2011] EWCA Civ 133 case the English Court of appeal considered the following entire agreement clause.

This Agreement and the Schedules and documents referred to herein constitute the entire agreement and understanding between you and us in relation to the subject matter thereof. Without prejudice to any variation as provided in clause 1.1, this Agreement shall supersede any prior promises, agreements, representations, undertakings or implications whether made orally or in writing between you and us relating to the subject matter of this Agreement but this will not affect any obligations in any such prior agreement  which are expressed to continue after termination.

The Court decided that the clause didn’t exclude any remedies in respect of pre contractual misrepresentations. This decision is consistent with the Sky v. EDS judgement of last year. So to put it plainly if you want to exclude liability for any misreps you have to be very clear (and remembering that you can’t exclude liability for fraudulent misreps).

Second, the court stated the clause did not exclude any implied terms, such as the implied warranty of reasonable skill and care in a service contract. (This is something I have often wondered about – and now I have an answer). 

Of course most agreements have an exclusion of implied warranties at the end of the warranties clause – but that may not exclude all implied terms – so I often beef up that exclusion to exclude all “implied warranties, implied conditions*, implied licences and/or implied terms”.

This is another anti-supplier judgement. Am I detecting a trend here?

* For the law geeks out there the exclusion of implied conditions is technically only relevant for Scots law contracts. However, I tend to include it even in English law contracts.

Douglas on Radio Scotland talking about iPods and digital music rights

I was on Radio Scotland last week talking to Fred MacAulay about downloaded music,  iPods, iTunes and other Apple “iPayTooMuch” products.

Here is a link to an mp3 recording of the piece – its about 10 minutes long.

Douglas on Radio Scotland re iPods

Some Key Points (that weren’t fully made in the interview):-

1. When you “buy” a music download you are actually buying a contractual right (licence right) to do certain specified things with that dowload. 

2, The contract (licence) will set out what you can do, e.g. listen to it in private, burn it to up to 5 devices etc.

3. If what you are doing is not expressley permitted under the contract (licence) then you are infringing copyright. 

4. So for example using your iPod to run a karoke event at your place of work would likely be a copyright infringement.

5. This is not a new model, the same rules applied to LPs. (Remember those? – I still listen to mine.) 

6. The iTunes contract is subject to California law, California Courts, and allows Apple to unilaterally change your rights to use the download.  Nice for them, not so good for you.  (To be fair the other on-line music stores are not much better).

7. Format shifting is not legal in the UK (it’s copyright infringement), but it’s low risk.

Happy listening.

Apple, iTunes and iPod are all registered trade marks of Apple Inc. “iPayTooMuch” is a lifestyle choice by our Martin.

I Love Brodies (Tweeting and Privacy)

Yes, it’s Valentines Day, and I’d like to make a declaration of love. Love for Brodies!

This declaration isn’t just because I’m an embarrassing sycophantic crawler. No, it’s also to remind myself that going online and insulting my employer is rarely a good move.

In November last year Sarah Baskerville, a Department for Transport employee, posted on her Twitter account that a course leader was “mental”, and posted links to tweets attacking government “spin” and Whitehall waste.

The Daily Mail discovered the tweets and ran with a headline “Oh please, stop this twit from Tweeting, someone” and was critical of Baskerville because she worked as a civil servant at the Department of Transport and used Twitter to describe some aspects of her job and her feelings towards her work. The Independent on Sunday also carried a similar story.

You’d think that Baskerville would have tried to let the whole thing blow over, in the hope that her employer didn’t decide to investigate whether she was in breach of her contract of employment. Instead, and quite bizarrely, Baskerville complained to the Press Complaints Commission (“PCC”), arguing that she could have a “reasonable expectation” of privacy in the tweets published on the micro-blogging site, and that the reporting was misleading.

The Daily Mail and Independent on Sunday argued that the messages were public and could be read by anyone.

The PCC cleared the Daily Mail and the Independent on Sunday of breaching privacy by publishing the tweets, and my own reaction is that it’s difficult to see how the PCC could have reached any other decision. Baskerville was tweeting to over 700 followers, and Twitter’s own Terms of Service state: “The Content you submit, post, or display will be able to be viewed by other users of the Services and through third party services and websites (go to the account settings page to control who sees your Content.)”

On Friday Baskerville published her own version of events.  While I feel sorry that she has undergone stress, I get the feeling she still hasn’t quite grasped the point that the social media revolution has fundamentally changed what is meant by “private”.  Separating your personal and private life online is becomingly increasingly difficult.

If you publicly insult your employer you can expect repercussions.

Did I tell you how much I love Brodies?

Twitter: @BrodiesTechBlog feed

February 2011
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