- Please explain what your “warranty” means as outlined in the EULA.
Omatic Software warrants that it owns all rights, title, and interest in and to the Software, or that in the case of any third party software that it has the right to grant a sub-license to use such third party software, that all Software shall substantially conform to the Functional Specifications, and that the Software and Services shall be free from material defects in workmanship and materials that prevent them from substantially meeting the aforementioned criteria. Omatic Software further warrants that any services provided by Omatic Software under this Agreement shall be performed in a workmanlike manner and in accordance with the prevailing professional standards of the software industry. This warranty coverage shall include any modifications made to the Software by Omatic Software. Such warranty shall extend for thirty (30) days from acceptance and shall survive inspection, test, acceptance, use, and payment.
- Please explain the “AS IS” clause in the EULA.
“AS IS” has a special meaning in the context of software, and Omatic uses it on the advice of our counsel because of something called “implied warranties.” A warranty is an affirmative promise about the quality and features of the software we are selling. There are two types of warranties: express warranties and implied warranties. Express warranties are made directly to you and are contained within the End User License Agreement. Implied warranties are presumed to have been made in every sale of software regardless of whether or not they were made in written or verbal form.
These implied warranties were originally created for use in the sale of goods and they make the most sense in that context. But selling software is not like selling apples, and the implied warranties have been a source of a lot of expensive litigation and conflict when courts have tried to apply them to software. To avoid this issue, all major software companies including Omatic have made the business decision to “disclaim” these warranties, or to specifically state that they are not part of the agreement between the software company and the customer. The use of the words “AS IS” is a shortcut to disclaiming these warranties.
- Can the choice of law be changed?
Omatic Software prefers South Carolina law to govern our contracts because we’re in South Carolina, our lawyers are in South Carolina, and we carry out our business here. In the unfortunate event that we are required to go to court to enforce one of our contracts, we are seeking to minimize litigation costs, to increase the likelihood of settling before going to court, and to increase the likelihood of a predictable outcome based on an established body of case law. We believe South Carolina’s courts fulfill all of these goals. Omatic will evaluate changes to our choice of law provision on a case-by-case basis. However, Omatic will not agree to any jurisdiction which has adopted any form of the Uniform Computer Information Transaction Act (Maryland or Virginia at this time) or any state which has not enacted the Uniform Trade Secrets Act.
- Can the venue be changed?
We prefer South Carolina courts. However Omatic will consider other forums on a case-by-case basis. We will also agree to either of the following compromises; 1) if you choose to bring a suit or seek arbitration against Omatic, Omatic will choose the exclusive forum for the action or arbitration, but if Omatic chooses to bring a suit or seek arbitration against you, you will choose the forum, or 2) you may choose any forum in the United States, but that forum will apply South Carolina law.