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Warranties and disclaimers in the electronic age.

ABSTRACT

This article reports on software-licensor express warranty and disclaimer practices on the Internet. Our data show that virtually all of the websites and End User License Agreements (EULAs) we sampled include express warranties on the website and disclaimers of the warranties in the EULAs that may erase all or much of the quality protection. Next, the article reviews the reasons why consumers generally do not read their e-standard forms despite the prevalence of disclaimers and other adverse terms. We then argue that e-commerce exacerbates the problem of warranties and disclaimers and that lawmakers should address this issue. We contend that improved disclosure of disclaimers, including making them easily accessible on a website prior to any particular transaction and possibly even the subject of a pop-up window during a transaction, is the best of various imperfect solutions to the problem. Disclosure is inexpensive and, at minimum, creates the potential for more legitimate consumer assent to e-standard forms, including assent to disclaimers of warranty. Even if in the short term consumers do not read their forms, perhaps consumers will eventually learn of misleading warranties and disclaimers because the Internet creates communication possibilities and research tools unavailable to disgruntled purchasers in the paper world. The prospect of the word getting out that a licensor does not intend to stand behind its promises and representations may be sufficient to curtail the practice of misleading warranties and disclaimers.
TABLE OF CONTENTS

Introduction
I.   The Data
II.  The e-Standard Form Environment
III. The Parol Evidence Rule in the Electronic Age
IV.  Enforcement of e-Disclaimers
Conclusion
Appendix 1


INTRODUCTION

A software licensor expressly warrants the quality of its software on its website. A consumer reads the warranty and decides to acquire the software. (1) The consumer has no opportunity to inspect or test the software and therefore relies on the licensor's quality representations. For a host of reasons, both rational and irrational, the consumer fails to read the electronic standard form record (e-standard form) that governs the transaction, (2) no less negotiate with anyone, before clicking "I agree" to the license. (3) The e-standard form includes a disclaimer (e-disclaimer) of all express (and implied) warranties and a full integration clause. (4) If the consumer attempts to avail himself of an express warranty when something goes wrong with the product, the licensor can point to the e-disclaimer and integration clauses and claim that evidence of the express warranty is inadmissible under contract law's parol evidence rule. Even if the evidence is admissible, the licensor can claim that the e-disclaimer supersedes any quality representations or promises.

Lawmakers should focus on this scenario because this manner of presenting express warranties and disclaimers online is remarkably widespread and potentially problematic. Part I of this article presents empirical evidence of just how prominent the strategy is. In a sample of fifty-four software titles culled from the top one hundred best-selling software products in which the licensor made its End User License Agreement (EULA) available on its website without a purchase, fifty-three contain express warranties on the website and e-disclaimers in the EULAs that may erase all or much of this quality protection. (5) Of course, the problem of express warranties and disclaimers is not limited to e-commerce and is, in fact, common in the paper world too. But the online world magnifies the problem and presents new challenges for contract law. In this article, we analyze if and when express warranties on a licensor's website should trump e-disclaimers of those express warranties in the EULAs.

An important goal of contract law is to enforce a party's manifestation of assent to a contract made with full access to all pertinent information and with time to contemplate the terms. In so doing, contract law facilitates exchange and encourages reliance on contracts, which in turn maximizes resources and supports individual autonomy. Contract law's parol evidence rule bars assertions of agreements, promises, or representations inconsistent with a record the parties intended to be complete on the subject matter. (6) In theory, this rule advances contract law's goals by weeding out fraudulent or other false assertions of prior inconsistent terms. But the problem of standard-form disclaimers in the online environment is not the potential for consumer fraud because the parties should rarely have occasion to dispute what a licensor's website says. (7) The problem is that a consumer may be unfairly surprised to learn that the licensor does not intend to stand behind its express promises and representations. We argue that enforcement of warranties in this context should not depend on the parol evidence rule.

Assuming the absence of a parol evidence imbroglio, and meeting the issue head on, contract law certainly should not allow a licensor to employ e-disclaimers as part of a strategy to confuse or surprise a consumer. Further, evidence mounts that people do not and will not carefully read their e-standard forms, thereby creating an invitation for licensor opportunism. On the other hand, as a general matter, licensors should be able to rely on the enforcement of their e-standard forms, which facilitates commerce and reduces costs for licensors and consumers alike. (8) We therefore should not dispense with the "duty-to-read" principle lightly. (9) Further, licensors' concern for their reputations should help deter overreaching in an environment in which consumers do not read standard forms but may complain vociferously about the shoddiness of their products and in which they can broadcast their complaints over the Internet to a wide audience. In fact, many, if not most, successful licensors stand behind their products (and produce quality products) to establish good reputations and to increase their bottom lines regardless of their legal liability. Finally, e-disclaimers may be so prevalent that consumers should not be surprised by them even if they purchase products shortly after reading warranties and ignoring the standard form.

In light of the conflicting policies at play, how should contract law address the problem of online warranties and disclaimers? Our view is that contract law's response should depend on whether a reasonable consumer should expect the e-disclaimer to extinguish express warranties. This focus on objective expectations in interpreting contracts, of course, is not novel. We reinforce this approach in the context of e-warranties and disclaimers and construct specific guidelines for assessing expectations. (10) These guidelines focus on improved disclosure of e-standard forms, but we also discuss problems with the disclosure strategy. We show why disclosure may only be the best of a series of imperfect responses to the problem of e-warranties and disclaimers.

As mentioned, Part I of this paper reports on licensor warranty and disclaimer practices on the Internet. Part II reviews the reasons why consumers generally do not read their standard forms despite the prevalence of disclaimers and other adverse terms. Part III discusses the parol evidence rule's application to the problem. With issues of the admissibility of evidence put to one side, Part IV outlines the factors for determining when contract law should enforce e- express warranties despite the presence of disclaimers.

1. THE DATA

This section presents our data. At the end of the section, we respond to two possible licensor objections to our conclusion that our data reveal a significant warranty-disclaimer problem.

The source of our data is the Amazon Top one hundred best-selling software titles on November 5, 2007. (11) As the name implies, Amazon ranks its software by numbers of sales, so our sample consists of software titles likely resident on consumers' computers. Further, because Amazon is an online retailer, consumers who purchase from Amazon likely perform any product research online as well and are therefore more likely to have seen a licensor's online express warranties.

We sought to gather the EULAs for each of the 100 titles. However, thirty-four software licensors did not post their EULAs on their websites. (12) We removed an additional twelve titles from the remaining sixty-six titles because they were either "upgrade" versions of titles already on our list or their EULAs consisted of a multi-user license. (13) We then examined the websites and EULAs of the remaining fifty-four software titles. (14) We found that fifteen software licensors produced the fifty-four titles. Because our goal was to examine titles commonly residing on consumers' computers, we were not concerned by the concentration of software licensors in our sample.

We found that fifty-three of the fifty-four EULAs contained disclaimers of express warranties otherwise created on the licensors' websites that may extinguish all or much of the warranty protection. (15) In addition, fifty-one of the fifty-four titles contain website "terms of use" (as distinguished from a EULA that governs a consumer's purchase) that appear to disclaim website express warranties. (16) However, we believe these latter disclaimers are clearly unenforceable because of the absence of sufficient notice and the lack of acceptance of the terms. (17) The more difficult question, addressed here, is enforcement of express warranty disclaimers in the EULAs.

We set forth our data consisting of express warranties and EULA disclaimers in Appendix 1. We set forth three examples here that represent the three major categories of express warranty and disclaimer that we found in our data.

The best selling title on November 5, 2007, was Apple Mac OS X Version 10.5 Leopard. Apple states on its website that this software enables the user to "run Windows on your Mac." (18) But section 6 of Apple's EULA warrants only that the media that stores the software is free from defects in workmanship and states that the "Limited Warranty set forth herein is the only warranty made to you and is provided in lieu of any other warranties (if any) created by any documentation, packaging or otherwise." (19) Not to be outdone by this language, section 7 contains an even broader disclaimer:
   Except for the limited warranty on media set forth
   above ... the Apple Software and Any services
   performed or provided by the Apple Software
   ("Services") are provided "As Is", with all faults and
   without warranty of any kind, and Apple and Apple's
   Licensors ... hereby disclaim all warranties and
   conditions with respect to the Apple Software and any
   services, either express, implied or statutory.... (20)


The effect of the language of both sections, of course, is that a consumer expecting to "run Windows on [her] Mac" may be sorely disappointed to learn that Apple does not have to stand by its assertion that the software will work. Although the EULAs in our sample varied in form and language, we can fairly place eighteen of the fifty-three EULAs within this first category. (21)

A second representative example, is the "Limited Warranty" in Microsoft Office Home and Student 2007 EULA (number two on the list of the Top 100), which states that "the software will perform substantially as described in the Microsoft materials that you receive in or with the software." (22) The disclaimer in the Limited Warranty then states that "Microsoft gives no other express warranties, guarantees or conditions." (23) Therefore the express promise made on Microsoft's website that the software supports Portable Document Format (PDF) would not be covered by their limited warranty unless Microsoft repeats this promise in the materials a consumer receives "in or with the software." (24) In other words, by virtue of the disclaimer, Microsoft's website itself is incapable of providing any express warranties to the end user. Twenty-one EULAs belong in this category. (25)

A third set of disclaimers seem ambiguous on whether they disclaim express warranties made on the website, but courts likely would find that they do so. For example, Microsoft states on its website that Windows XP Professional with Service Pack 2 (number 32) allows users to access their work computer from their home computer. Further, the website claims that "when you connect to your computer at work, Remote Desktop automatically locks that computer so no one else can access your applications and files while you are gone." (26) Nevertheless, section 18 of the EULA disclaims any express warranties that are not in the limited warranty of section 17, which provides that the software will perform "substantially in accordance with accompanying materials." (27) But the EULA nowhere defines "accompanying materials" and section 18 states that "advertising, documentation, packaging, or other communications" do not create express warranties, (28) leaving as a mystery whether "accompanying materials" includes website promises and representations. Nevertheless, Microsoft's "terms of use" of its website disclaims any express warranties created by the website, suggesting that Microsoft did not intend "accompanying materials" to include website materials. (29) Microsoft's set of disclaimers means that website promises and representations likely are not legally enforceable. Fourteen EULAs contain this kind of ambiguity. (30)

A licensor may argue that disclaimers of website promises are irrelevant if the licensor makes the same promise in the "materials in or with the software." For example, suppose Microsoft repeats its PDF representation somewhere in their "materials." However, our data suggests that consumers cannot rely on a licensor's "materials" repeating website promises and representations and that the potential for overreaching by licensors is strong. First, the data shows that licensors go to great lengths to disclaim promises made on their websites. It is hard to explain why they would do so if their "materials" contain the same promises and, in fact, our further investigation of these materials, although limited to those available, revealed that some do not. (31) Further, some "materials" contain disclaimers of their own or narrow the promises and representations made on the website. (32) Second, Microsoft and others promise only that the software will perform "substantially" as promised in the "materials," itself potentially a significant reduction in quality protection. Third, there appears to be little incentive for licensors to repeat promises and representations after a purchase regarding the software's capabilities. We should also point out that our data reveals the warranty/disclaimer approaches of very successful software licensors. Apparently Apple's current strategy of disclaiming virtually all warranties is not negatively influencing sales. It is likely that less successful licensors and fly-by-night operations, focusing on the bottom line and wary of the costs of warranty services, already follow or will follow Apple's lead. (33)

A licensor may also claim that it stands behind its product no matter what a disclaimer says, so that the problem we address is irrelevant. We believe otherwise. First, as already noted, we present information about successful licensors and surmise that plenty of less successful licensors will not stand behind their products (even if they say they will). Second, sellers have invoked their disclaimers against warranties in hosts of cases in the paper world, suggesting that e-licensors will act no differently. (34) Third, the argument that licensors will "do the right thing" proves too much. If accepted, the argument means that we do not need contract law at all. Let's just trust in the good faith of all businesses. Finally, perhaps most important and as the discussion in the next Part reveals, conditions in the online environment for overreaching may be too inviting for licensors uniformly to stand behind their warranties.

II. THE E-STANDARD FORM ENVIRONMENT

In this section, we describe the e-standard form environment. We observe that consumers do not read e-standard forms and that this creates the opportunity for licensor opportunism. We argue that contract law should therefore intercede.

Professors Hillman and Rachlinski have compared the paper and online environments of standard-form contracting. They identified certain factors in the online world that should promote reading of e-standard forms by consumers:
   Several factors suggest that consumers can defend
   themselves against undesirable terms more easily in
   the electronic environment. E-consumers can shop in
   the privacy of their own homes, where they can make
   careful decisions with fewer time constraints. They
   can leave their computers and return before
   completing their transactions, giving them time to
   think and investigate further. Also, at present, e-consumers
   tend to be better educated and wealthier
   than paper-world consumers, suggesting that they can
   better fend for themselves in the marketplace.

   The Internet has also taken comparison shopping to a
   level that is unimaginable in the real world. The ease
   with which consumers can compare business
   practices, including the content of standard forms,
   suggests that consumers do not need judicial
   intervention to protect themselves from business
   abuse. (35)


Notwithstanding these advantages, some aspects of e-contracting raise concerns about the quality of assent to e-standard forms. Hillman and Rachlinski described these factors as either rational, cognitive, or social in nature, all leading to the conclusion that e-consumers are not likely to read terms. In another paper, Hillman summarized how these factors operate to discourage reading:
   The rational factors overlap explanations from the
   paper world about why people do not read their
   forms, such as the impenetrability of most boilerplate,
   the ability of e-businesses to present the forms in a
   manner that deters reading, consumers' lack of
   bargaining power (indeed the lack of anyone with
   whom to bargain), the lack of diversity of terms
   within an industry, and the knowledge that boilerplate
   generally allocates the risks of remote contingencies.
   In short, an e-reader may weigh the costs and benefits
   of reading and not reading and rationally find a net
   benefit in not reading.

   Cognitive factors for failing to read are irrational, but
   prominent, both in the paper and electronic worlds.
   They include consumers' propensity to underestimate
   the likelihood of adverse events and their tendency to
   rely on intuition and hunches instead of processing all
   of the information.

   At first blush, social factors that affect how
   consumers treat standard forms would seem to be
   very different and favorable to e-consumers reading
   more [mainly because of the absence of a live agent
   applying pressure on the consumer to sign
   precipitously] ...

   Despite th[is] potential advantage[] for consumers...
   the likelihood is that e-consumers [will] not assign the
   same significance to a mouse click as a signature on a
   paper form.... [E]-consumers are conditioned to
   expect speed and instant gratification when using their
   computers, including when they engage in Internet
   contracting. Put differently, consumers may be
   overeager, even "click-happy" and may therefore fail
   to research their e-standard contracts. (36)


In light of these factors, Hillman and Rachlinski predicted that consumers would resemble their counterparts in the paper world who fail in large part to read or comprehend their standard forms. To test these assumptions, Hillman administered a survey to his first-year class of ninety-two contracts students. The results and explanations are reported elsewhere. (37) Suffice it to say here that, for the most part, the survey results support the assumption that consumers generally do not read their e-standard forms. (38)

Assuming we cannot expect consumers to read e-standard forms what, if anything, should contract law do about the problem? As noted in the introduction, a basic and deeply embedded rule of contract law is that people should be bound to terms when they have an opportunity to read their contracts and signify their acceptance. (39) And for good reason. Licensors have better information about their products and the various problems that can arise than lawmakers who would have to substitute their judgments for those of the licensors. Nor is the use of standard forms necessarily disadvantageous to consumers. Analysts frequently point out that the use of standard forms reduces costs for licensors, which they can pass on to consumers. (40) Finally, even in competitive markets disclaimers are sufficiently common that consumers arguably should expect them whether or not they read their standard forms. (41)

On the other hand, there are good reasons not to be complacent about enforcing e-standard forms, including express warranty disclaimers. The conditions for licensor opportunism are too great to adopt a "hands off" policy on the grounds of freedom of contract and the duty to read. First, our data shows that licensors are not reticent to make rather bold claims about their products on their websites only to reverse position on their standard forms. (42) These circumstances are likely to mislead consumers, regardless of whether they read their e-standard forms, especially if the claims are sufficiently clear and distinct to constitute express warranties and the consumer reads the promises and representations shortly before committing to a purchase. Even consumers who have become inured to everyday puffing and boasting in general advertising about products likely rely more heavily on licensor promises and representations when they appear on websites only a few clicks away from a purchase.

Second, the collection of "dangerous terms" already appearing on various "watchdog" websites provides evidence that licensors are not beyond taking advantage of the conditions of e-commerce. (43) Common suspect terms in the software arena, for example, include those that authorize licensors to add spyware to a consumer's computer, that provide for unilateral modification of terms by the licensor without notice or an opportunity to contest the changes, that extend the duration of a contract automatically, and that authorize the licensor to cancel a contract without notice. (44) Our data suggests that we can add deceptive e-warranty disclaimers to this list.

Third, contract law should help create the appearance of fairness in e-contracting in order to encourage consumers to engage in the process. Relatedly, as a matter of fairness and ethics, licensors should keep their promises. There is little reason why the law should adopt a lesser standard in the e-context than morality would dictate. For example, there is little danger that holding licensors to their express warranties will flood courts with litigation or disrupt the operation of otherwise clear and distinct rules. As we have already mentioned, most licensors already stand behind their products regardless of the legal rules that apply.

Some analysts argue that in competitive markets only a small number of readers may deter licensor opportunism. (45) Licensors want to establish good reputations to ensure a market share and a few readers and watchdog groups that already exist in abundance on the Internet can easily spread the word electronically if a licensor writes unfair terms. (46)

This line of argument, often addressed in the literature, is problematic because the number of readers may be too small to impact a licensor's reputation and watchdog groups, at least so far, have only been marginally effective. (47) Further, licensors in competitive industries can employ new e-technologies to segregate readers and offer them more advantageous terms. "Careful segregation of consumers on the basis of their willingness to read and shop for terms would ensure that the small number of careful consumers would not discipline businesses concerning terms they offer to the rest of the consumers and would allow businesses to take advantage of the latter." (48) In addition, licensors can experiment and determine the types of presentation of terms that best discourage reading. (49) Nowhere may be more important to intercede than in the context of disclaimers of express warranties that not only induce consumers to enter transactions but that also create fundamental quality expectations. (50)

Parts I and II demonstrate that licensors make express warranties on their websites, that consumers generally do not read the e-disclaimers in their EULAs, that this creates the incentive for opportunism, and that evidence of overreaching already exists. The next two Parts of this paper consider how contract law should treat e-express warranty disclaimers in light of these realities. First, in Part III, we look at the parol evidence rule and then, in Part IV, we turn to the issue on the merits.

III. THE PAROL EVIDENCE RULE IN THE ELECTRONIC AGE

Our data supports the view that licensors make specific and verifiable representations and promises on their websites that constitute express warranties under current law. (51) Thus, our starting point is that a licensor's representation or promise constitutes a "basis of the bargain" if a court applies UCC section 2-313, or that a reasonable consumer could rely on the statement if a court applies section 3.02 of the ALI Principles. (52) Under this set of assumptions, the threshold question is whether the parol evidence rule bars evidence of the express warranty if the e-standard form disclaims such warranties and includes a "full integration" clause.

The parol evidence rule bars evidence of prior or contemporaneous representations and promises that contradict an unambiguous record that the parties intended to be complete. (53) Suppose, for example, a consumer alleges that a software licensor represented on its website that its software "is compatible with the Ultrix operating system," when it is not. (54) The e-standard form disclaims all express and implied warranties and includes a full integration clause. The parol evidence rule, at least in its traditional form in the paper world, bars the admissibility of the express warranty because it is inconsistent with the standard form.

Courts and writers have spilled plenty of ink advocating the abolishment of the parol evidence rule for reasons not unlike the problem presented here, namely that the rule, designed to deter fraud, tends to encourage it by allowing contracting parties to shield themselves from their actual promises and representations. In fact, because the parol evidence rule aids and abets such conduct, courts often find exceptions to, or manipulate, the rule if they believe that the evidence offered is true. Among a host of exceptions and manipulations, three are pertinent here: courts admit extrinsic evidence (1) if the parties did not intend the record to be complete on the issue at hand; (2) if the evidence would reveal fraud or another invalidating cause; or (3) if the evidence consists of a course of performance, course of dealing, or usage of trade. (55)

Some courts determine whether a record is complete based on its plain meaning, including the meaning of any integration clause. (56) However, many courts, following Corbin and Llewellyn, admit all relevant evidence preliminarily to determine whether the parties intended the record to be complete before applying the parol evidence rule, sometimes even if the record contains a full integration clause. (57) Needless to say, credible evidence of representations and promises that are inconsistent with a record usually means that the parties did not intend to integrate their agreement completely, at least if they are in good faith. If a licensor says its software is compatible with Ultrix, a transferee can justifiably assert that the record is not complete on the compatibility issue notwithstanding an e-disclaimer and integration clause. A court sympathetic with this argument can entertain the evidence preliminarily, conclude that the record is incomplete, and admit the evidence for purposes of determining the parties' substantive rights. In truth, however, in most cases neither the licensor nor consumer probably thought about the completeness of the e-standard form, nor has either party read it. The situation is not unlike the merchant-to-merchant battle-of-the-forms fiasco, in which the UCC and courts have wisely turned their focus away from the text of the forms. (58)

Despite the parol evidence rule, many courts also admit evidence of fraudulent misrepresentation, duress, mistake, or the like on the theory that such evidence establishes the unenforceability of an agreement (including any warranty disclaimer). If a licensor warrants that its software is compatible with Ultrix when it knows that it is not and this information is not readily available to the transferee, the evidence of this misrepresentation should be admissible. (59) Further, evidence that the licensor presented the e-disclaimer in a manner meant to discourage the consumer from reading the e-disclaimer would substantiate the misrepresentation or by itself may constitute actionable concealment. (60)

Courts also admit evidence of course of performance, course of dealing, or usage of trade because they are reliable indicators of the meaning of contract language. (61) For example, a court may admit evidence that a licensor repeatedly replaced a consumer's software that is incompatible with Ultrix, which course of dealing may establish such a duty notwithstanding an e-disclaimer of express warranties and an integration clause. (62) In addition, a court may admit evidence of a trade custom that software licensors in a particular "place, vocation, or trade" consistently stand behind their e-express warranties, notwithstanding disclaimers. (63)

Although these and other exceptions show that the parol evidence rule is porous and confusing, the ALI Principles seek to clarify the rule by codifying the results suggested in the Ultrix example above. The ALI Principles direct courts to admit extrinsic evidence to determine whether the parties intended a full or partial integration prior to application of the parol evidence rule. The Principles also provide for the admissibility of evidence of misrepresentation, "course of performance, course of dealing, or usage of trade." (64) Finally, the Principles hold in the consumer context that an integration clause is "probative but not conclusive" evidence on integration. (65)

An alternative approach would be to abandon the parol evidence rule in its entirety, at least in the case of consumer e-express warranties and disclaimers, on the theory that the cost of administering the rule outweighs its usefulness. After all, the problem is not with proof of the existence of a warranty--records and logs of a website make this incontestable. (66) The issue is whether the e-disclaimer extinguishes what would otherwise be the licensor's legal duty to stand behind its quality claims. Instead of complicating the issue by entertaining claims of inadmissibility of evidence, courts should receive all pertinent evidence, not as a preliminary step with the evidence out of the reach of the trier of fact, but as probative evidence on the merits. We turn to these merits in the following section.

IV. ENFORCEMENT OF E-DISCLAIMERS

In this section, we assume the absence of a parol evidence bar, so we are left with the question of whether, as a substantive matter, contract law should enforce e-disclaimers if the licensor has made express warranties on its website. The UCC and the ALI Principles recognize the potential incompatibility of express warranties and disclaimers. (67) UCC [section] 2-3 16(1) directs courts to strike disclaimers that are "inconsistent" with an express warranty, but the section exhorts courts to try to find consistency and implies that such an interpretation can be found. (68) One can argue that the UCC is asking courts to do the impossible: How can a court find a consistent interpretation of contradictory language? Unsurprisingly, judicial application of [section] 2-3 16(1) has been inconsistent and incoherent. (69) The ALI Principles, on the other hand, direct courts to strike "unexpected" e-disclaimers. (70) Arguably this approach is clearer and is consistent with what the UCC drafters were trying to achieve: Comment 1 to [section] 2-3 16 states that subsection (1) is meant to "protect a buyer from unexpected ... language of disclaimer...." (71)

The issue thus boils down to an analysis of what conditions must exist for a court to find that an e-disclaimer is unexpected. The legal framework already exists for such an analysis. Although the approach has many labels, including "reasonable expectations" and "unconscionability," contract law largely follows Karl Llewellyn's admonition to presume "blanket" assent to conscionable boilerplate, but only if a party had reasonable notice of and opportunity to read the standard form. (72) This strategy's emphasis on consumer delegation to licensors of the drafting of boilerplate preserves the semblance of autonomous choice in the context of standard forms and should remain attractive in the electronic era. (73) What factors should courts therefore focus on in determining the adequacy of notice and the opportunity to read the e-disclaimer? And how should courts determine if a disclaimer is "conscionable"?

The ALI Principles furnish some guidance. They call for software licensors to make terms, including disclaimers, easily accessible on their websites prior to a transaction and to give reasonable notice of and access to the terms if a licensee initiates a transaction. (74)

Initiation of a transaction occurs only when the consumer intends to contract and has begun that process, such as by clicking on a "purchase" or "I agree" icon before the consumer gives payment information. Accessibility of terms on a website prior to initiation enables prospective customers to read and compare terms without making a commitment. In fact, it is just such accessibility, albeit with some searching, that enabled us to peruse the standard forms discussed in Part I of this paper (and should make enforcement of those disclaimers more likely). A reasonably clear notice of the availability of terms on the licensor's homepage should suffice.

Further, the notice should be conspicuous based on placement and size (bold print or a large font should do) and should constitute a hyperlink that leads directly to the standard form. (75) The standard form itself should also be conspicuous on the computer screen.

Once a transferee initiates a transaction, licensors should require a "clickwrap" acceptance of the e-standard form. Clickwrap most closely resembles the signing of a paper standard form because clickwrap requires the consumer to consent to presented terms by clicking "I agree" (or the like) before completing the transaction.

Further the "I agree" icon must be adjacent to or at the end of the standard form, and must automatically appear on the screen or in a scroll-down window as part of the processing of the transaction. A mere reference to terms that can be found elsewhere ("browsewrap") should not suffice. (76)

The Federal Trade Commission's "truth-in-advertising" and "dot com disclosures" policies should supplement the disclosure strategies discussed here. (77) These call for truthful and non-deceptive advertising and "clear and conspicuous" disclosures. However, contract law should not consider the FTC approach alone a solution to the e-express warranty and disclaimer problem. For all of the reasons agencies, as a general matter, are imperfect solutions to society's problems, such as agency capture, lack of resources, and .ineffective policing, we believe that contract law should itself address the problem of e-warranties and disclaimers.

What will be the effect of the disclosure measures we suggest? Disclosure will increase the opportunity for consumers to uncover warranty disclaimers. But for the reasons discussed in Part II and for the reasons that follow, we doubt that disclosure will greatly increase reading of any terms of an e-standard form, including warranty disclaimers. We will suggest, however, that disclosure may be the best of a series of less-than satisfactory solutions.

Research on advertising and on shopping behavior on the Internet reinforces the conclusion that greater disclosure of e-standard terms will have little influence on consumers' purchasing strategies, especially because of the proximity of the warranties to the "I agree" icon that commits a consumer to a transaction. In an earlier article, Hillman reported on a study that identifies two kinds of internet shoppers. (78) The "convenience" shopper rationally uses the Internet to search for a particular product or service and to compare prices and quality reports. (79) The "recreational" shopper, as the name implies, shops for fun and commonly purchases impulsively. (80) Recreational shoppers "may be driven by need to purchase rather than need for a product. (81) The Internet likely promotes impulsive purchasing because it supplies "recreational shopping features," such as "email alerts of new products and special offers" twenty-four hours a day. (82) In addition, people who purchase impulsively prefer the privacy e-shopping affords. (83) In fact, shoppers who start an Internet search for convenience may ultimately purchase impulsively. (84) Ironically, the lack of a live agent exerting time pressure on consumers actually may reduce the tendency to read terms and increase impulsive purchasing.

Consumers with time to interact with a website may gain confidence in and form a favorable impression of it. (85) Such an attitude may reinforce the belief that reading terms would be a waste of time. (86) The opportunity to commit to a purchase literally seconds after reading a licensor's promises and representations that are carefully designed to induce purchasing obviously further promotes and facilitates impulsive purchasing. (87) In short, the Internet environment likely is not one in which we can hope for careful perusal of warranty disclaimers even with greater disclosure. (88) In addition to our qualms about the effects of disclosure on consumer reading of terms, we have another concern. Ironically, more disclosure may only mean more judicial enforcement of e-disclaimers because consumers will be unable to claim surprise if the disclaimer is readily available for their perusal. (89) Perhaps watchdog groups will become more efficacious once e-standard forms are more readily available for perusal, thereby tipping the balance in favor of greater disclosure despite our concern, but only time will tell.

In light of these realities, we should not rule out other methods of dealing with e-warranty disclaimers, some involving even greater disclosure requirements. For example, the law could require that consumers click "I agree" at the end of each e-disclaimer (and other contentious terms) or that disclaimers must be in bold print to emphasize their importance. (90) However, critics may claim, with some justification, that extra clicking would be cumbersome for little gain because consumers would simply click without digesting the disclaimer. Nor has bold or large print worked very well in the paper world. (91)

Another method of dealing with the warranty/disclaimer problem would be to require conspicuous notice on the website, both in terms of placement and size, that representations and promises made there are not legally enforceable. We have already mentioned that fifty-one of the fifty-four titles in our data contain website "terms of use" that appear to disclaim website express warranties, but that these are not enforceable because of the absence of sufficient notice of the terms of use and their lack of real acceptance by consumers. (92) However, if a licensor gave ample notice, for example, by including a conspicuous preamble on the website stating that nothing that follows is legally enforceable, reasonable consumers would not rely on any representations or promises and therefore contract law would not recognize any express warranties in the first place. The problem with this approach is that it ties the hands of good-faith licensors who want to advertise their products by requiring them to send perhaps misleading signals about the quality of their products: "We assume no legal liability, but our software will allow you to run Windows on your Mac" suggests that this licensor has little faith in its product or its promises. Perhaps requiring licensors to highlight their warranty disclaimers in a window that automatically appears before the completion of a transaction would alleviate this problem, but it is hard to justify why warranty disclaimers deserve more attention than other potentially "dangerous" terms, such as those authorizing automatic renewal or unilateral modification. Contract law could require licensors to include all potentially material terms in a pop-up window before a consumer can commit to a transaction, but sorting out what to include would challenge licensors and courts. Further, with clickwrap disclosure of the entire EULA already required, additional disclosure may be confusing and deter any reading at all.

On the other hand, warranty disclaimers in EULAs particularly rankle because they take back commitment-inducing promises and representations affirmatively set forth on the website. Perhaps a popup window solely consisting of disclaimers is therefore justified.

Still another approach to the warranty/disclaimer problem would be to invalidate all e-disclaimers of express warranties regardless of the context on the theory that such disclaimers are invariably unexpected and misleading and therefore unconscionable.

This strategy would deal a considerable blow to freedom of contract and related policies discussed above for enforcing disclaimers. (93) And, so long as the disclosure process is reasonable, it is difficult to make a case for wholesale exclusion of disclaimers notwithstanding consumers' seeming inability to protect themselves. In short, unconscionability per se may be too blunderbuss a remedy for the warranty/disclaimer problem. Disclosure, incorporating some or all of the ideas we have suggested, may be the best of a series of imperfect solutions, as we now discuss briefly in the conclusion.

CONCLUSION

We believe that e-commerce exacerbates the problem of warranties and disclaimers and that lawmakers should address this issue. And we find that more disclosure is the best of various imperfect solutions to the problem. Disclosure is inexpensive and, at minimum, creates the potential for more legitimate consumer assent to e-standard forms, including assent to disclaimers of warranty.

Even if in the short term consumers do not read their forms, perhaps consumers will eventually learn of misleading warranties. After all, the Internet creates communication possibilities and research tools unavailable to disgruntled purchasers in the paper world. Only a few readers or vitalized watchdog groups may suffice to spread the word. The prospect of the word getting out that a licensor does not intend to stand behind its promises and representations may be sufficient to curtail the practice of misleading warranties and disclaimers.
APPENDIX 1

Sales   Developer   Software     Website         Example of
Rank                Title        Address         Express
                                 (last           Warranty
                                 visited         created on
                                 Dec. 12,        website
                                 2008
                                 unless
                                 otherwise
                                 noted)

1       Apple       Apple        http://www.     Run
                    Mac OS       apple.com/      Windows
                    X Version    macosx/feat     on your
                    10.5         ures/           Mac.
                    Leopard

2       Microsoft   Microsoft    http://office   New
                    Office       .microsoft.c    support for
                    Home and     om/en-          Portable
                    Student      us/suites/H     Document
                    2007         A10165515       Format
                                 1033.aspx       (PDF) and
                                                 XML Paper
                                                 Specificatio
                                                 n (XPS) file
                                                 formats
                                                 helps
                                                 ensure
                                                 broader
                                                 distribution
                                                 of your
                                                 documents
                                                 with others.

4       Microsoft   Microsoft    No Longer       Now you
                    Office       available       can take full
                    2004 for     on              advantage
                    Mac          Microsoft.c     of the
                    Student      om              Spotlight
                    and                          search
                    Teacher                      functionalit
                                                 y in Mac
                                                 OS X Tiger
                                                 with the
                                                 help of
                                                 Office
                                                 Update
                                                 11.2.3.

5       Intuit      Quickboo     http://quick    Download
                    ks Pro       books.intuit    credit card
                    2008         .com/produ      and bank
                                 ct/accounti     transactions
                                 ng-
                                 software/s
                                 mall-
                                 business-
                                 accounting-
                                 software.jht
                                 ml
                                 (last visited
                                 Mar. 31,
                                 2008

6       Adobe       Adobe        http://www.     Photoshop
                    Photosho     adobe.com/      Elements
                    p            products/ph     eliminates
                    Elements     otoshopelw      red eye
                    6            in/upgrade/     automaticall
                                 ?promoid=       y as youdownload
                                 BGRWA           photos from
                                 (last visited   your
                                 Mar. 31,        camera.
                                 2008

8       Apple       Apple        http://www.     Import from
                    iLife '08    store.apple.    popular
                                 com/us/pro      video
                                 duct/MB61       devices
                                 SZ/A?fnode      including
                                 =MTYIND         AVCHD.
                                 AzOA&mc
                                 o=MjMOM
                                 zUSMw

9       Symantec    Norton       http://www.     Blocks
                    Internet     symantec.c      identity
                    Security     om/norton/      theft by
                    2008 up      products/ov     phishing
                    to 3 Users   erview.jsp?     Web sites.
                                 pcid=is&pv
                                 id=nis2008
                                 (last visited
                                 Mar. 31,
                                 2008

11      Intuit      Quicken      http://quick    Quicken
                    2008         en.intuit.co    Deluxe also
                    Deluxe       m/personal-     exports
                                 finance/del     your data
                                 uxe-money-      directly to
                                 managemen       TurboTax,
                                 t.jhtml         so you
                                 (last visited   won't have
                                 Mar. 31,        to re-enter
                                 2008            the same
                                                 information
                                                 twice.

12      Apple       Apple        http://store.   Import from
                    iWork '08    apple.com/      and export
                                 us/product/     to
                                 MB624Z/A        Microsoft
                                 ?fnode=MT       Excel and
                                 YINDAzO         other
                                 A&mco=M         formats.
                                 jQzNzkxN
                                 Q

13      Nova        Parallels    http://www.     With
        Developme   Desktop      novadevelo      Parallels'
        nt          3.0 for      pment.com/      award-
                    Mac          Products/Pa     winning
                                 rallels_Des     virtualizatio
                                 ktop 3/defa     n
                                 ult.aspx        technology,
                                                 you can run
                                                 Mac OS X
                                                 and your
                                                 favorite
                                                 Windows
                                                 applications
                                                 at the same
                                                 time. You
                                                 can even
                                                 drag-and-
                                                 drop files
                                                 between
                                                 desktops!

15      Microsoft   Microsoft    http://office   Outlook
                    Outlook      .microsoft.c    Mobile
                    2007         om/en-          Service is a
                                 us/outlook/     feature of
                                 HA101650        Outlook
                                 261033.asp      that enables
                                 x               you to send
                                                 and receive
                                                 text and
                                                 picture
                                                 messages
                                                 between
                                                 Office
                                                 Outlook
                                                 X007 and

19      Microsoft   Microsoft    http://www.     Manage
                    Office       microsoft.c     your
                    2004 for     om/mac/pro      projects
                    Mac          ducts/office    more
                    Standard     2004.mspx       efficiently
                                                 by
                                                 accessing
                                                 all of your
                                                 project-
                                                 related e-
                                                 mail
                                                 messages,
                                                 files, notes,
                                                 contacts,
                                                 and
                                                 schedules in
                                                 one
                                                 convenient
                                                 place.

21      Microsoft   Microsoft    http://www.     Errant
                    Windows      microsoft.c     applications
                    XP Home      om/window       will not
                    Edition      sxp/home/e      cause your
                    Full         valuation/fe    computer to
                    Version      atures.mspx     crash.
                    with SP2     (last visited
                                 Mar. 31,
                                 2008

22      Nero Inc.   Nero 8       N/A             N/A
                    Ultra
                    Edition

23      Microsoft   Microsoft    http://www.     Find
                    Streets      microsoft.c     Nearby
                    and Trips    om/streets/     Places lets
                    2008         ProductDet      you find
                                 ails.aspx?pi    more than
                                 d=002&acti      1.6 million
                                 ve_tab=Fea      locations
                                 tures           such as
                                 (last visited   parks,
                                 Mar. 31,        ATMs,
                                 2008            hotels,
                                                 landmarks,
                                                 and more
                                                 within up to
                                                 50 miles of
                                                 your current
                                                 position or
                                                 anywhere
                                                 on your
                                                 route.

24      Corel       Paint        http://www.     View
                    Shop Pro     corel.com/s     photos and
                    Photo X2     ervlet/Satell   video clips
                                 ite/us/en/Pr    in more
                                 oduct/1185      than 50 file
                                 293061925       formats.
                                 #versionTa
                                 bview=tab0
                                 &tabview=t
                                 ab2

30      Microsoft   Microsoft    http://office   Attachment
                    Office       .microsoft.c    preview.
                    Professio    om/en-          View
                    nal 2007     us/suites/F     attachments
                    Full         X 10175949      to e-mail
                    Version      1033.aspx       messages
                                                 without
                                                 opening
                                                 them in
                                                 Office
                                                 Outlook
                                                 X007.

31      Microsoft   Microsoft    http://office   New
                    Office       .microsoft.c    support for
                    Standard     om/en-          Portable
                    2007 Full    us/suiteslH     Document
                    Version      A10165522       Format
                                 1033.aspx       (PDF) and
                                                 XML Paper
                                                 Specificatio
                                                 n (XPS) file
                                                 formats
                                                 helps
                                                 ensure
                                                 broader
                                                 distribution
                                                 of your
                                                 documents
                                                 with
                                                 others. 1
                                                 Convert
                                                 your files to
                                                 PDF or
                                                 XPS for
                                                 sharing
                                                 with users
                                                 on any
                                                 platform.

32      Microsoft   Microsoft    http://www.     When you
                    Windows      microsoft.c     connect to
                    XP           om/window       your
                    Professio    sxp/evaluati    computer at
                    nal Full     on/features/    work,
                    Version      remoteacce      Remote
                    with SP2     ss.mspx         Desktop
                                 (last visited   automaticall
                                 Mar. 31,        y locks that
                                 2008            computer so
                                                 no one else
                                                 can access
                                                 your
                                                 applications
                                                 and files
                                                 while you
                                                 are gone.

33      Intuit      Quickboo     http://intuit   Create 100+
                    ks Pro       search.intui    customizabl
                    2007         t.com/searc     e reports,
                    Small        h?entgr-0&      like Profit
                    Business     Search.x=0      & Loss
                    Financial    &sort=date      Statements
                    Software     %3AD%3A         and sales
                                 L%3Ad1&         reports, in
                                 output=xml      two clicks.
                                 _no_dtd&ie
                                 =UTF-
                                 8&shopped
                                 D=1332402
                                 273&opc=0
                                 273400000
                                 &client=qu
                                 ickbooks_si
                                 to&npc=20
                                 55913657&
                                 num=l0&S
                                 earch.y=0&
                                 ud=l&site=
                                 quickbooks
                                 _site&oe=
                                 UTF-
                                 8&proxysty
                                 lesheet=qui
                                 ckbooks sit
                                 e&q=quick
                                 books+pro
                                 +2007+sma
                                 Il+business
                                 &btnG.x=O
                                 &btnG.y=O
                                 (last visited
                                 Mar. 31,
                                 2008

34      Intuit      Learning     http://quick    Duration: 3
                    Quickboo     books.intuit    total hours
                    ks 2008      .com/produ      of training.
                                 ct/training/1
                                 earning-qui
                                 ckbooks.jht
                                 ml?view=o
                                 verview#ta
                                 bAnchor

35      Rosetta     Rosetta      http://www.     Level 1, 2
        Stone       Stone V3     rosettastone    & 3 Set
                    Spanish      .com/perso      Includes
                    (Latin       nal/languag     The Basics
                    America)     es/spanish-     Nouns,
                    Level 1-2-   latin-          verbs,
                    3 Personal   america/lev     adjectives,
                    Edition      el-1-2-3        numbers,
                                 (last visited   questions,
                                 Mar. 31,        colors,
                                 2008            clothing.
                                                 Friends and
                                                 Family
                                                 Ages,
                                                 family
                                                 relations,
                                                 household
                                                 items,
                                                 introduction
                                                 s,
                                                 landmarks,
                                                 states,
                                                 descriptions

36      Symantec    Norton       http://www.     One click
                    Antivirus    symantec.c      access to
                    20081        om/norton/      expert
                    User         products/ov     support.
                                 erview.jsp?
                                 pcid=is&pv
                                 id=nav2008
                                 (last visited
                                 Mar. 31,
                                 2008

38      Adobe       Adobe        http://www.     Save Adobe
                    Acrobat      adobe.com/      PDF files as
                    Standard     products/ac     Microsoft
                    8.0          robatpro/ac     Word
                                 robatstd.ht     documents,
                                 ml              retaining
                                 (last visited   the layout,
                                 Mar. 31,        fonts,
                                 2008            formatting,
                                                 and tables,
                                                 to facilitate
                                                 reuse of
                                                 content.

40      Adobe       Adobe        http://www.     Add, adjust,
                    Photosho     adobe.com/      and remove
                    p CS3        products/ph     filters from
                    Upgrade      otoshop/ph      an image
                                 otoshop/up      without
                                 grade/          having to
                                 (last visited   resave the
                                 Mar. 31,        image or
                                 2008            start over to
                                                 preserve
                                                 quality.
                                                 Nondestruct
                                                 ive Smart
                                                 Filters
                                                 allow you
                                                 to visualize
                                                 changes
                                                 without
                                                 altering
                                                 original
                                                 pixel data.

41      Adobe       Adobe        No Longer       No Longer
                    Photosho     available       available on
                    p            on              Adobe.com
                    Elements     Adobe.com
                    4.0 (Mac)

44      Intuit      Quicken      http://quick    Connect to
                    2008         en.intuit.co    your bank,
                    Premier      m/personal-     credit card,
                                 finance/pre     401(k)s, or
                                 mier-           brokerage
                                 portfolio-      accounts
                                 managemen       with a
                                 t.jhtml?lid=    single
                                 site banner     password.
                                 (last visited
                                 Mar. 31,
                                 2008

47      Pinnacle    Pinnacle     http://www.     Pinnacle
        Systems     Studio       pinnaclesys     Studio Plus
                    Ultimate     .com/Public     edits native
                    Version      Site/us/Pro     HDV or
                    11           ducts/Cons      AVCFiD
                                 umer+prod       footage and
                                 ucts/Home       then authors
                                 +Video/Stu      HD DVD
                                 dio+Family      format discs
                                 /Studio+Ult     that will
                                 imate+11        play on the
                                                 latest HD
                                                 players.

48      Rosetta     Rosetta      http://www.     Level 1
        Stone       Stone V3     rosettastone    Includes 4
                    Spanish      .com/perso      Major Units
                    (Latin       nal/languag     Covering:
                    America)     es/spanish-     Work and
                    Level 1      latin-          School--
                    Personal     america/lev     Times of
                    Edition      el-1            day,
                                 (last visited   greetings,
                                 Mar. 31,        calendar
                                 2008            terms, body
                                                 parts,
                                                 speaking,
                                                 personal
                                                 hygiene.

50      Kaspersky   Kaspersk     http://usa.k    Parental
        Lab         y Internet   aspersky.co     controls
                    Security     m/products      limit online
                    7.0 3-       _services/in    time and
                    User         ternet-         access to
                                 security.ph     forbidden
                                 p               sites (with
                                 (last visited   tracking).
                                 Mar. 31,
                                 2008

52      Microsoft   Microsoft    http://www.     Errant
                    Windows      microsoft.c     applications
                    XP Home      om/window       will not
                    Edition      sxp/home/e      cause your
                    SP2B for     valuation/fe    computer to
                    System       atures.mspx     crash.
                    Builders     (last visited
                                 Mar. 31,
                                 2008

53      Adobe       Adobe        http://www.     Combine
                    Acrobat      adobe.com/      multiple
                    8.0          products/ac     tiles into a
                    Professio    robatpro/       searchable,
                    nal          (last visited   sortable
                                 Mar. 31,        PDF
                                 2008            package
                                                 that
                                                 maintains
                                                 the
                                                 individual
                                                 security
                                                 settings and
                                                 digital
                                                 signatures
                                                 of each
                                                 included
                                                 PDF
                                                 document.

55      Microsoft   Microsoft    http://office   In three
                    Publisher    .microsoft.c    steps, you
                    2007         om/en-          can
                                 us/publishe     successfully
                                 r/HA 10038      create mail
                                 5691033.as      merges.
                                 px

56      Microsoft   Money        http://www.     Attach links
                    Plus         microsoft.c     to important
                    Deluxe       om/money/       files such as
                                 ProductDet      check
                                 ails.aspx?pi    images or
                                 d=003           scanned
                                                 receipts
                                                 right from
                                                 transactions
                                                 in the
                                                 Money
                                                 account
                                                 register.

57      Microsoft   Microsoft    http://www.     With
                    Windows      microsoft.c     Windows
                    Vista        om/window       Meeting
                    Home         s/products/     Space, you
                    Premium      windowsvis      can
                    Full         to/editions/    wirelessly
                    Version      homepremi       connect
                                 um/default.     your mobile
                                 mspx            PC to a
                                 (last visited   friend's PC
                                 Mar. 31,        and share
                                 2008            photos,
                                                 videos, and
                                                 documents
                                                 when
                                                 you're at a
                                                 coffee shop,
                                                 working on
                                                 a group
                                                 project, or
                                                 in many
                                                 other
                                                 situationsC
                                                 even when
                                                 you're not
                                                 connected
                                                 to the
                                                 Internet.

58      Adobe       Adobe        No Longer       Photoshop
                    Photosho     available       Elements
                    p            on              eliminates
                    Elements     Adobe.com       red eye
                    5.0                          automaticall
                                                 y as you
                                                 download
                                                 photos from
                                                 your
                                                 camera.

61      Symantec    Norton       http://shop.    Provides
                    360 All-     symantecst      one-click
                    In-One       ore.com/D       access to
                    Annual       RHM/servl       expert
                    Subscripti   et/Controlle    support
                    on--3        rServlet?Ac     right from
                    PCs          tion=Displa     your Norton
                                 yProductDe      product.
                                 tailsPage&
                                 SitelD=sy
                                 mnahho&L
                                 ocale=en U
                                 S&Themel
                                 D=106300
                                 &Env=BA
                                 SE&produc
                                 tID=81884
                                 500
                                 (last visited
                                 Mar. 31,
                                 2008

62      Microsoft   Microsoft    http://www.     Support for
                    Office       microsoft.c     industry-
                    Professio    om/product      standard
                    nal 2003     s/info/prod     Extensible
                                 uct.aspx'?vi    Markup
                                 ew=22&typ       Language
                                 e=ovr&pci       (XML) lets
                                 d=ee959bd       you
                                 8-14b4-         exchange
                                 4601-91a7-      and use data
                                 eea1043249      from a
                                 fa#Overvie      variety of
                                 w               sources.

63      Intuit      Quickboo     http://quick    Click a
                    ks Pro       books.intuit    button to
                    2007 for     .com/produ      turn any
                    Mac          ct/accounti     invoice,
                                 ng-             estimate,
                                 software/pr     purchase
                                 o-mac-          order or
                                 business-       report into a
                                 finance-        PDF file.
                                 software.jht
                                 ml
                                 (last visited
                                 Mar. 31,
                                 2008

64      Trend       Trend        http://www.     Parental
        Micro       Micro        internetsecu    controls
                    Internet     rity-           give you
                    Security     2008.com/p      control over
                    2008 3-      c-              your
                    User         cillin.html     children's
                                                 Internet
                                                 activity by
                                                 blocking
                                                 inappropriat
                                                 e Web sites
                                                 and content.

66      Rosetta     Rosetta      http://www.     Level 1
        Stone       Stone V3     rosettastone    Includes 4
                    Spanish      .com/perso      Major Units
                    (Latin       nal/languag     Covering:
                    America)     es/spanish-     Work and
                    Level        latin-          School -
                    1&2          america/lev     Times of
                    Personal     el-1-2          day,
                    Edition      (last visited   greetings,
                                 Mar. 31,        calendar
                                 2008            terms, body
                                                 parts,
                                                 speaking,
                                                 personal
                                                 hygiene.

67      Final       Final        http://finald   Over two
        Draft       Draft 7      raft.com/pr     dozen new
                    Professio    oducts/final    templates.
                    nal          --              These
                    Scriptwrit   draft/whats-    include new
                    ing          new.php         television
                                                 shows ...
                                                 Newest
                                                 templates
                                                 include:
                                                 American
                                                 TV,
                                                 Arrested
                                                 Developme
                                                 nt, Boston
                                                 Legal, Cold
                                                 Case, CSI
                                                 Miami, CSI
                                                 NY,
                                                 Deadwood,
                                                 Desperate
                                                 Housewives
                                                 ...

70      Adobe       Adobe        No longer       No longer
                    Photosho     available       available on
                    p CS2        on              www.adobe
                                 www.adobe       .com
                                 .com

73      Intuit      Quickboo     http://quick    Track
                    ks           books intuit    inventory,
                    Premiere     .com/produ      set reorder
                    Edition      ct/accounti     points &
                    2008         ng-             create
                                 software/pr     purchase
                                 emier-          orders.
                                 edition-
                                 financial-
                                 planning-
                                 software.jht
                                 ml?lid=left
                                 _nay
                                 (last visited
                                 Mar. 31,
                                 2008

75      Intuit      Quicken      http://quick    Whether
                    2008         en.intuit.co    it's personal
                    Home &       m/small-        payments or
                    Business     business-       business
                                 finance/ho      income--or
                                 me-             both--
                                 business.jht    Quicken
                                 ml?cid=ppc      can now
                                 _google_b_      import your
                                 all_stan_U      transaction
                                 S_PFS+-         data directly
                                 +H&priorit      from
                                 yCode=397       PayPal.
                                 8900000
                                 (last visited
                                 Mar. 31,
                                 2008

79      Sony        Vegas        http://www.     Over 100
        Media       Movie        sonycreativ     video
                    Studio 8     esoftware.c     effects and
                    Platinum     om/product      transitions
                    Edition      s/product.as    from
                                 p?pid=447       NewBlue7,
                                 (last visited   maker of
                                 Mar. 31,        professional
                                 2008            video
                                                 effects
                                                 plug-ins.

81      Microsoft   Microsoft    http://office   With
                    Office       .microsoft.c    SmartArt
                    Small        om/en-          graphics,
                    Business     us/help/HA      you can
                    2007         101983081       experiment
                    Upgrade      033.aspx        as much as
                                                 you want
                                                 with
                                                 different
                                                 formats and
                                                 styles. You
                                                 can preview
                                                 styles
                                                 before
                                                 choosing
                                                 one, so you
                                                 don't have
                                                 to apply
                                                 styles over
                                                 and over
                                                 again to
                                                 find the one
                                                 you want.

83      Microsoft   Microsoft    http://www.     Windows
                    Windows      microsoft.c     Flip and
                    Vista        om/window       Windows
                    Ultimate     s/products/     Flip 3D
                    Full         windowsvis      render live
                    Version      to/features/    thumbnail
                                 details/flip3   images of
                                 d.mspx          the exact
                                                 contents of
                                                 your open
                                                 windows.

84      Palo Alto   Palo Alto    http://www.     500+
        Software    Business     paloalto.co     sample
                    Plan Pro     m/ps/bp/?b      business
                    2007         pedition=b      plans.
                                 pp
                                 (last visited
                                 Mar. 31,
                                 2008

86      Rosetta     Rosetta      http://www.     Level 1 & 2
        Stone       Stone V3     rosettastone    Set
                    French       .com/perso      Includes:
                    Level        nal/languag     Friends and
                    1&2          es/french/le    Social Life
                    Personal     vet-1-2         --Months of
                    Edition      (last visited   the year,
                                 Mar. 31,        arrivals and
                                 2008)           departures,
                                                 social
                                                 interaction,
                                                 celebrations
                                                 meal
                                                 courses,
                                                 quality
                                                 terms,
                                                 apologies.

89      Microsoft   Microsoft    http://msdn     Support for
                    Visual       2.microsoft.    Visual
                    Studio       com/en-         Basic, C#,
                    Standard     us/vs2005/a     C++, and J#
                    2005         a718671.as      languages.
                                 px

93      Intuit      Quickboo     http://quick    Get
                    ks Simple    books intuit    personalize
                    Start Plus   .com/produ      d help for
                    Pack 2008    ct/accounti     the first 30
                                 ng-             days after
                                 software/si     you register
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                                 ml              question,
                                 (last visited   and a
                                 Mar. 31,        support
                                 2008            expert will
                                                 eBmail you
                                                 back. It's
                                                 included
                                                 with Simple
                                                 Start at no
                                                 extra
                                                 charge.

97      Microsoft   Microsoft    http://www.     Configure
                    Expressio    microsoft.c     flexible
                    n Web        om/expressi     schema
                    Upgrade      on/products     settings to
                    from         /features.as    support all
                    FrontPage    px?key=we       combinatio
                                 b               ns of
                                 (last visited   HTML,
                                 Mar.3l,         XHTML,
                                 2008            Strict,
                                                 Transitional
                                                 Frameset
                                                 and CSS
                                                 1.0, 2.0, and
                                                 2.1 plus
                                                 browser-
                                                 specific
                                                 schemms.

99      Corel       Corel        http://www.     Capture and
                    Ulead        corel.com/s     import
                    VideoStu     ervlet/Satell   video from
                    dio 11       ite/us/en/Pr    DV, DVD,
                    Plus         oduct/1175      AVCHD or
                                 714228666       HDV
                                 (last visited   camcorders.
                                 Mar. 31,        Import
                                 2008            video from
                                                 mobile
                                                 devices,
                                                 VHS tape
                                                 or the Web.

Sales   Disclaimer Language         Limited Warranty Language
Rank

1       ... THE APPLE               Limited Warranty on Media.
        SOFTWARE AND ANY            Apple warrants the media on
        SERVICES PERFORMED          which the Apple Software is
        OR PROVIDED BY THE          recorded and delivered by Apple
        APPLE SOFTWARE              to be free from defects in
        ("SERVICES") ARE            materials and workmanship
        PROVIDED "AS IS,"           under normal use for a period of
        WITH ALL FAULTS AND         ninety (90) days from the date of
        WITHOUT WARRANTY            original retail purchase. Your
        OF ANY KIND, AND            exclusive remedy under this
        APPLE AND APPLE'S           Section shall be, at Apple's
        LICENSORS                   option, a refund of the purchase
        (COLLECTIVELY               price of the product containing
        REFERRED TO AS              the Apple Software or
        "APPLE" FOR THE             replacement of the Apple
        PURPOSES OF SECTIONS        Software which is returned to
        7 and 8) HEREBY             Apple or an Apple authorized
        DISCLAIM ALL                representative with a copy of the
        WARRANTIES AND              receipt. THIS LIMITED
        CONDITIONS WITH             WARRANTY AND ANY
        RESPECT TO THE APPLE        IMPLIED WARRANTIES ON
        SOFTWARE AND ANY            THE MEDIA INCLUDING,
        SERVICES, EITHER            BUT NOT LIMITED TO, THE
        EXPRESS, IMPLIED OR         IMPLIED WARRANTIES OF
        STATUTORY....               MERCHANTABILITY, OF
                                    SATISFACTORY QUALITY,
                                    AND OF FITNESS FOR A
                                    PARTICULAR PURPOSE, ARE
                                    LIMITED IN DURATION TO
                                    NINETY (90) DAYS FROM
                                    THE DATE OF ORIGINAL
                                    RETAIL PURCHASE....THE
                                    LIMITED WARRANTY SET
                                    FORTH HEREIN IS THE
                                    ONLY WARRANTY MADE
                                    TO YOU AND IS PROVIDED
                                    IN LIEU OF ANY OTHER
                                    WARRANTIES (IF ANY)
                                    CREATED BY ANY
                                    DOCUMENTATION,
                                    PACKAGING OR
                                    OTHERWISE.

2       NO OTHER                    LIMITED WARRANTY. If
        WARRANTIES. THE             you follow the instructions, the
        LIMITED WARRANTY IS         software will perform
        THE ONLY DIRECT             substantially as described in the
        WARRANTY FROM               Microsoft materials that you
        MICROSOFT.                  receive in or with the software.
        MICROSOFT GIVES NO
        OTHER EXPRESS
        WARRANTIES,
        GUARANTEES OR
        CONDITIONS.

4       The Limited Warranty that   Microsoft warrants that the
        appears above is the only   Software will perform
        express warranty made to    substantially in accordance
        you and is provided in      with the accompanying
        lieu of any other express   materials for a period of ninety
        warranties or similar       (90) days from the date of
        obligations (if any)        receipt. Any supplements or
        created by any              updates to the Software,
        advertising,                including without limitation,
        documentation, packaging,   any (if any) service packs or
        or other communications.    hot fixes provided to you after
        Except for the Limited      the expiration of the ninety day
        Warranty and to the         Limited Warranty period are
        maximum extent permitted    not covered by any warranty or
        by applicable law,          condition, express, implied or
        Microsoft and its           statutory.
        suppliers provide the
        Software and support
        services (if any) AS IS
        AND WITH ALL FAULTS, and
        hereby disclaim all other
        warranties and
        conditions, whether
        express, implied or
        statutory....

5       DISCLAIMER OF               10. SATISFACTION
        WARRANTIES. EXCEPT          GUARANTEED/LIMITED
        AS EXPRESSLY                WARRANTY. (i) Satisfaction
        PROVIDED IN SECTION         Guarantee. If you are not
        10 ABOVE, THE               satisfied with the Software and
        SOFTWARE, SERVICES,         (a) You purchased the Software
        AND ANY CONTENT             from a retail store, you may
        ACCESSIBLE THROUGH          uninstall and delete all copies
        THE SOFTWARE OR             of the Software from your
        SERVICES ARE                computers) and return it within
        PROVIDED "AS-IS" AND,       60 days of purchase to the store
        TO THE MAXIMUM              where you purchased your
        EXTENT PERMITTED BY         license with a dated receipt for
        APPLICABLE LAW,             a full refund. If the store is
        INTUIT, ITS AFFILIATES,     unable or unwilling to issue a
        LICENSORS,                  refund or you obtained the
        PARTICIPATING               Software directly from Intuit,
        FINANCIAL                   you may uninstall and delete all
        INSTITUTIONS, THIRD-        copies of the Software and
        PARTY CONTENT OR            return the Software with a
        SERVICE PROVIDERS,          dated receipt or packing slip
        DEALERS AND                 within 60 days of purchase via
        SUPPLIERS                   U.S. mail to Intuit Inc., Returns
        (COLLECTIVELY,              Department, PO Box 190004,
        "SUPPLIERS") DISCLAIM       Greenville, SC 29390-9004 or
        ALL GUARANTEES AND          via UPS to Intuit Inc., Returns
        WARRANTIES,                 Department, 1 l0 Hidden Lake
        WHETHER EXPRESS,            Circle, Duncan, SC 29334....
        IMPLIED OR                  (ii) Limited Warranty. (a) If the
        STATUTORY,                  CDROM on which the
        REGARDING THE               Software is stored is defective,
        SOFTWARE, SERVICES,         then return the CDROM to
        CONTENT, CDROMS             Intuit Inc., Returns Department,
        AND RELATED                 PO Box 19004, Greenville, SC
        MATERIALS....               29390-9004 within 60 days of
                                    shipment (or in the case of a
                                    retail purchase, within 60 days
                                    of purchase) with a dated
                                    receipt or packing slip, and a
                                    replacement CDROM will be
                                    mailed to you....

6       ... the Software and        6. LIMITED WARRANTY.
        access to any websites,     Except as may be otherwise
        online services and CD      provided in Section 14, Adobe
        Services as- is and with    warrants to the individual or
        all faults and expressly    entity that first purchases a
        disclaim all other          license for the Software for use
        Warranties, conditions,     pursuant to the terms of this
        representations or terms,   agreement that the Software
        express or implied,         will perform substantially in
        whether by statute,         accordance with the
        common law, custom, usage   Documentation for the ninety
        or otherwise....            (90) day period following
                                    receipt of the Software when
                                    used on the recommended
                                    operating system and hardware
                                    configuration. Non-substantial
                                    variation of performance from
                                    the Documentation does not
                                    establish a warranty right.

8       EXCEPT FOR THE              6. Limited Warranty on Media.
        LIMITED WARRANTY            Apple warrants the media on
        ON MEDIA SET FORTH          which the Apple Software is
        ABOVE AND TO THE            recorded and delivered by
        MAXIMUM EXTENT              Apple to be free from defects in
        PERMITTED BY                materials and workmanship
        APPLICABLE LAW, THE         under normal use for a period
        APPLE SOFTWARE AND          of ninety (90) days from the
        ANY SERVICES                date of original retail purchase.
        PERFORMED OR
        PROVIDED BY THE
        APPLE SOFTWARE
        ("SERVICES") ARE
        PROVIDED "AS IS,"
        WITH ALL FAULTS AND
        WITHOUT WARRANTY
        OF ANY KIND, AND
        APPLE AND APPLE'S
        LICENSORS
        (COLLECTIVELY
        REFERRED TO AS
        "APPLE" FOR THE
        PURPOSES OF SECTIONS
        7 and 8) HEREBY
        DISCLAIM ALL
        WARRANTIES AND
        CONDITIONS WITH
        RESPECT TO THE APPLE
        SOFTWARE AND ANY
        SERVICES, EITHER
        EXPRESS, IMPLIED OR
        STATUTORY....

9       TO THE MAXIMUM              6. Limited Warranty: Symantec
        EXTENT PERMITTED BY         warrants that the media on
        APPLICABLE LAW, THE         which the Software is
        ABOVE WARRANTY IS           distributed will be free from
        EXCLUSIVE AND IN            defects for a period of sixty
        LIEU OF ALL OTHER           (60) days from the date of
        WARRANTIES,                 delivery of the Software to
        WHETHER EXPRESS OR          You. Your sole remedy in the
        IMPLIED....                 event of a breach of this
                                    warranty will be that Symantec
                                    will, at its option, replace any
                                    defective media returned to
                                    Symantec within the warranty
                                    period or refund the money
                                    You paid for the Software.
                                    Symantec does not warrant that
                                    the Software will meet Your
                                    requirements or that operation
                                    of the Software will be
                                    uninterrupted or that the
                                    Software will be error-free.

11      ... DISCLAIM ALL            9. SATISFACTION
        GUARANTEES AND              GUARANTEED. If you are not
        WARRANTIES,                 satisfied with the Software and
        WHETHER EXPRESS,            (a) You purchased the Software
        IMPLIED OR                  from a retail store, you may
        STATUTORY,                  uninstall and delete all copies
        REGARDING THE               of the Software from your
        SOFTWARE. FURTHER,          computers) and return it within
        INTUIT DOES NOT             60 days of purchase to the store
        WARRANT ACCESS TO           where you purchased your
        THE INTERNET OR TO          license with a dated receipt for
        ANY OTHER SERVICE           a full refund. If the store is
        OR CONTENT OR DATA          unable or unwilling to issue a
        THROUGH THE                 refund or you obtained the
        SOFTWARE....                Software directly from Intuit,
                                    you may uninstall and delete all
                                    copies of the Software and
                                    return the Software with a
                                    dated receipt or packing slip
                                    within 60 days of purchase via
                                    U.S. mail to Intuit Inc., Returns
                                    Department, PO Box 190004,
                                    Greenville, SC 29390-9004 or
                                    via UPS to Intuit Inc., Returns
                                    Department, 110 Hidden Lake
                                    Circle, Duncan, SC 29334. (b)
                                    You obtained the Software
                                    directly from Intuit via an
                                    Internet download, you may
                                    submit a written request to
                                    Intuit including your name,
                                    contact and product order
                                    information to Intuit Inc.,
                                    Returns Department, PO Box
                                    19004, Greenville, SC 29390-
                                    9004.

12      EXCEPT FOR THE              6. Limited Warranty on Media.
        LIMITED WARRANTY            Apple warrants the media on
        ON MEDIA SET FORTH          which the Apple Software is
        ABOVE AND TO THE            recorded and delivered by
        MAXIMUM EXTENT              Apple to be free from defects in
        PERMITTED BY                materials and workmanship
        APPLICABLE LAW, THE         under normal use for a period
        APPLE SOFTWARE AND          of ninety (90) days from the
        ANY SERVICES                date of original retail purchase.
        PERFORMED OR
        PROVIDED BY THE
        APPLE SOFTWARE
        ("SERVICES") ARE
        PROVIDED "AS IS,"
        WITH ALL FAULTS AND
        WITHOUT WARRANTY
        OF ANY KIND, AND
        APPLE AND APPLE'S
        LICENSORS
        (COLLECTIVELY
        REFERRED TO AS
        "APPLE" FOR THE
        PURPOSES OF SECTIONS
        7 and 8) HEREBY
        DISCLAIM ALL
        WARRANTIES AND
        CONDITIONS WITH
        RESPECT TO THE APPLE
        SOFTWARE AND ANY
        SERVICES, EITHER
        EXPRESS, IMPLIED OR
        STATUTORY....

13      WITH THE EXCEPTION          9. Limited Warranty.
        OF THE FOREGOING            PARALLELS ONLY
        EXPRESS WARRANTY,           WARRANTS THAT THE
        THE SOFTWARE IS             SOFTWARE WILL BE FREE
        LICENSED "AS IS," AND       FROM MATERIAL
        PARALLELS DISCLAIMS         DEFECTS FOR A PERIOD
        ANY AND ALL OTHER           OF 90 DAYS FOLLOWING
        WARRANTIES,                 ITS PURCHASE. IF A
        WHETHER EXPRESS OR          MATERIAL DEFECT
        IMPLIED....                 OCCURS WITHIN 90 DAYS,
                                    YOU MAY RETURN THE
                                    SOFTWARE TO
                                    PARALLELS FOR A FREE
                                    REPLACEMENT.

15      NO OTHER                    LIMITED WARRANTY. If
        WARRANTIES. THE             you follow the instructions, the
        LIMITED WARRANTY IS         software will perform
        THE ONLY DIRECT             substantially as described in the
        WARRANTY FROM               Microsoft materials that you
        MICROSOFT.                  receive in or with the software.
        MICROSOFT GIVES NO
        OTHER EXPRESS
        WARRANTIES,
        GUARANTEES OR
        CONDITIONS.

19      THE LIMITED                 20. LIMITED WARRANTY
        WARRANTY THAT               FOR SOFTWARE
        APPEARS ABOVE IS THE        PRODUCTS ACQUIRED IN
        ONLY EXPRESS                THE US AND CANADA.
        WARRANTY MADE TO            Microsoft warrants that the
        YOU AND IS PROVIDED         SOFTWARE PRODUCT will
        IN LIEU OF ANY OTHER        perform substantially in
        EXPRESS WARRANTIES          accordance with the
        (IF ANY) CREATED BY         accompanying materials for a
        ANY DOCUMENTATION           period of ninety (90) days from
        OR PACKAGING.               the date of receipt. If an
        EXCEPT FOR THE              implied warranty or condition
        LIMITED WARRANTY            is created by your
        AND TO THE MAXIMUM          state/jurisdiction and federal or
        EXTENT PERMITTED BY         state/provincial law prohibits
        APPLICABLE LAW,             disclaimer of it, you also have
        MICROSOFT AND ITS           an implied warranty or
        SUPPLIERS PROVIDE           condition, BUT ONLY AS TO
        THE SOFTWARE                DEFECTS DISCOVERED
        PRODUCT AND                 DURING THE PERIOD OF
        SUPPORT SERVICES (IF        THIS LIMITED WARRANTY
        ANY) AS IS AND WITH         (NINETY DAYS). AS TO
        ALL FAULTS, AND             ANY DEFECTS
        HEREBY DISCLAIM ALL         DISCOVERED AFTER THE
        OTHER WARRANTIES            NINETY (90) DAY PERIOD,
        AND CONDITIONS,             THERE IS NO WARRANTY
        EITHER EXPRESS,             OR CONDITION OF ANY
        IMPLIED OR                  KIND....Any supplements or
        STATUTORY....               updates to the SOFTWARE
                                    PRODUCT, including without
                                    limitation, any (if any) service
                                    packs or hot fixes provided to
                                    you after the expiration of the
                                    ninety (90) day Limited
                                    Warranty period are not
                                    covered by any warranty or
                                    condition, express, implied or
                                    statutory.

21      The Limited Warranty that   17. LIMITED WARRANTY
        appears above is the only   FOR SOFTWARE
        express warranty made to    ACQUIRED IN THE US AND
        you and is provided in      CANADA. Microsoft warrants
        lieu of any other express   that the Software will perform
        warranties or similar       substantially in accordance
        obligations (if any)        with the accompanying
        created by any              materials for a period of ninety
        advertising,                (90) days from the date of
        documentation, packaging,   receipt. if an implied warranty
        or other communications.    or condition is created by your
        Except for the Limited      state/jurisdiction and federal or
        Warranty and to the         state/provincial law prohibits
        maximum extent permitted    disclaimer of it, you also have
        by applicable law,          an implied warranty or
        Microsoft and its           condition, BUT ONLY AS TO
        suppliers provide the       DEFECTS DISCOVERED
        Software and support        DURING THE PERIOD OF
        services (if any) AS IS     THIS LIMITED WARRANTY
        AND WITH ALL FAULTS, and    (NINETY DAYS). AS TO
        hereby disclaim all other   ANY DEFECTS
        warranties and              DISCOVERED AFTER THE
        conditions, whether         NINETY-DAY PERIOD,
        express, implied or         THERE IS NO WARRANTY
        statutory....               OR CONDITION OF ANY
                                    KIND. Some
                                    states/jurisdictions do not allow
                                    limitations on how long an
                                    implied warranty or condition
                                    lasts, so the above limitation
                                    may not apply to you. Any
                                    supplements or updates to the
                                    Software, including without
                                    limitation, any (if any) service
                                    packs or hot fixes provided to
                                    you after the expiration of the
                                    ninety day Limited Warranty
                                    period are not covered by any
                                    warranty or condition, express,
                                    implied or statutory

22      N/A                         N/A

23      NO OTHER                    LIMITED WARRANTY. If
        WARRANTIES. THE             you follow the instructions, the
        LIMITED WARRANTY IS         software will perform
        THE ONLY DIRECT             substantially as described in the
        WARRANTY FROM               Microsoft materials that you
        MICROSOFT.                  receive in or with the software.
        MICROSOFT GIVES NO
        OTHER EXPRESS
        WARRANTIES,
        GUARANTEES OR
        CONDITIONS.

24      EXCEPT FOR THE              1.8 LIMITED WARRANTY:
        EXPRESS LIMITED             Except as may be otherwise
        WARRANTY ABOVE              provided in this Agreement or
        AND FOR ANY                 unless the Product is a Trial
        WARRANTY,                   Version as set forth in Section
        CONDITION,                  3 or a Pre-Release Version as
        REPRESENTATION OR           set out in Section 7, Corel
        TERM TO THE EXTENT          warrants to the person or entity
        TO WHICH THE SAME           that first purchases a license to
        CANNOT OR MAY NOT           Use this Product that this
        BE EXCLUDED OR              Product will be free from defect
        LIMITED BY LAW              in materials and workmanship
        APPLICABLE TO YOU IN        for ninety (90) days from the
        YOUR JURISDICTION,          date you acquire it. If such a
        THE PRODUCT IS              defect occurs, contact Corel
        PROVIDED ON AN "AS          Customer Service at
        IS" BASIS, WITHOUT          www.corel.com to obtain a
        ANY OTHER                   RMA Number to return the
        WARRANTIES,                 media and Corel will replace it
        REPRESENTATIONS,            free of charge. THIS REMEDY
        CONDITIONS OR TERMS,        IS YOUR EXCLUSIVE
        EXPRESS OR IMPLIED,         REMEDY AND COREL'S
        WHETHER BY LAW,             AND ITS SUPPLIERS' AND
        STATUTE, USAGE OF           DEALERS' ENTIRE
        TRADE, COURSE OF            LIABILITY FOR BREACH
        DEALING OR                  OF THIS WARRANTY OR,
        OTHERWISE,                  WHERE PERMITTED BY
        INCLUDING, BUT NOT          APPLICABLE LAW, FOR
        LIMITED TO,                 ANY OTHER CAUSE OF
        WARRANTIES OF NON-          ACTION (INCLUDING
        INFRINGEMENT OF             NEGLIGENCE)
        THIRD PARTY RIGHTS,         CONCERNING ANY
        INTEGRATION,                DEFECT IN MATERIALS OR
        MERCHANTABLE                WORKMANSHIP IN
        QUALITY,                    RELATION TO THE
        SATISFACTORY                PRODUCT. THIS LIMITED
        QUALITY,                    WARRANTY GIVES YOU
        MERCHANTABILITY OR          CERTAIN LEGAL RIGHTS.
        FITNESS FOR A               YOU MAY HAVE
        PARTICULAR PURPOSE.         ADDITIONAL LEGISLATED
        COREL AND ITS               RIGHTS WHICH MAY
        SUPPLIERS AND               VARY FROM
        DEALERS DO NOT AND          JURISDICTION TO
        CANNOT WARRANT THE          JURISDICTION.
        PERFORMANCE OR
        RESULTS YOU MAY
        OBTAIN BY USING THE
        PRODUCT.

30      NO OTHER                    LIMITED WARRANTY. If
        WARRANTIES. THE             you follow the instructions, the
        LIMITED WARRANTY IS         software will perform
        THE ONLY DIRECT             substantially as described in the
        WARRANTY FROM               Microsoft materials that you
        MICROSOFT.                  receive in or with the software.
        MICROSOFT GIVES NO
        OTHER EXPRESS
        WARRANTIES,
        GUARANTEES OR
        CONDITIONS.

31      NO OTHER                    LIMITED WARRANTY. If
        WARRANTIES. THE             you follow the instructions, the
        LIMITED WARRANTY IS         software will perform
        THE ONLY DIRECT             substantially as described in the
        WARRANTY FROM               Microsoft materials that you
        MICROSOFT.                  receive in or with the software.
        MICROSOFT GIVES NO
        OTHER EXPRESS
        WARRANTIES,
        GUARANTEES OR
        CONDITIONS.

32      The Limited Warranty that   17. LIMITED WARRANTY
        appears above is the only   FOR SOFTWARE
        express warranty made to    ACQUIRED IN THE US AND
        you and is provided in      CANADA. Microsoft warrants
        lieu of any other express   that the Software will perform
        warranties or similar       substantially in accordance
        obligations (if any)        with the accompanying
        created by any              materials for a period of ninety
        advertising,                (90) days from the date of
        documentation, packaging,   receipt. If an implied warranty
        or other communications.    or condition is created by your
        Except for the Limited      state/jurisdiction and federal or
        Warranty and to the         state/provincial law prohibits
        maximum extent permitted    disclaimer of it, you also have
        by applicable law,          an implied warranty or
        Microsoft and its           condition, BUT ONLY AS TO
        suppliers provide the       DEFECTS DISCOVERED
        Software and support        DURING THE PERIOD OF
        services (if any) AS IS     THIS LIMITED WARRANTY
        AND WITH ALL FAULTS, and    (NINETY DAYS). AS TO
        hereby disclaim all other   ANY DEFECTS
        warranties and              DISCOVERED AFTER THE
        conditions, whether         NINETY-DAY PERIOD,
        express, implied or         THERE IS NO WARRANTY
        statutory....               OR CONDITION OF ANY
                                    KIND....Any supplements or
                                    updates to the Software,
                                    including without limitation,
                                    any (if any) service packs or
                                    hot fixes provided to you after
                                    the expiration of the ninety day
                                    Limited Warranty period are
                                    not covered by any warranty or
                                    condition, express, implied or
                                    statutory.

33      DISCLAIMER OF               10. SATISFACTION
        WARRANTIES. EXCEPT          GUARANTEED/LIMITED
        AS EXPRESSLY                WARRANTY. (i) Satisfaction
        PROVIDED IN SECTION         Guarantee. If you are not
        10 ABOVE, THE               satisfied with the Software and
        SOFTWARE, SERVICES,         (a) You purchased the Software
        AND ANY CONTENT             from a retail store, you may
        ACCESSIBLE THROUGH          uninstall and delete all copies
        THE SOFTWARE OR             of the Software from your
        SERVICES ARE                computers) and return it within
        PROVIDED "AS-IS" AND,       60 days of purchase to the store
        TO THE MAXIMUM              where you purchased your
        EXTENT PERMITTED BY         license with a dated receipt for
        APPLICABLE LAW,             a full refund. If the store is
        INTUIT, ITS AFFILIATES,     unable or unwilling to issue a
        LICENSORS,                  refund or you obtained the
        PARTICIPATING               Software directly from Intuit,
        FINANCIAL                   you may uninstall and delete all
        INSTITUTIONS, THIRD-        copies of the Software and
        PARTY CONTENT OR            return the Software with a
        SERVICE PROVIDERS,          dated receipt or packing slip
        DEALERS AND                 within 60 days of purchase via
        SUPPLIERS                   U.S. mail to Intuit Inc., Returns
        (COLLECTIVELY,              Department, PO Box 190004,
        "SUPPLIERS") DISCLAIM       Greenville, SC 29390-9004 or
        ALL GUARANTEES AND          via UPS to Intuit Inc., Returns
        WARRANTIES,                 Department, 110 Hidden Lake
        WHETHER EXPRESS,            Circle, Duncan, SC 29334.
        IMPLIED OR                  ...(ii) Limited Warranty. (a) If
        STATUTORY,                  the CDROM on which the
        REGARDING THE               Software is stored is defective,
        SOFTWARE, SERVICES,         then return the CDROM to
        CONTENT, CDROMS             Intuit Inc., Returns Department,
        AND RELATED                 PO Box 19004, Greenville, SC
        MATERIALS                   29390-9004 within 60 days of
                                    shipment (or in the case of a
                                    retail purchase, within 60 days
                                    of purchase) with a dated
                                    receipt or packing slip, and a
                                    replacement CDROM will be
                                    mailed to you....

34      DISCLAIMER OF               10. SATISFACTION
        WARRANTIES. EXCEPT          GUARANTEED/LIMITED
        AS EXPRESSLY                WARRANTY. (i) Satisfaction
        PROVIDED IN SECTION         Guarantee. If you are not
        10 ABOVE, THE               satisfied with the Software and
        SOFTWARE, SERVICES,         (a) You purchased the Software
        AND ANY CONTENT             from a retail store, you may
        ACCESSIBLE THROUGH          uninstall and delete all copies
        THE SOFTWARE OR             of the Software from your
        SERVICES ARE                computers) and return it within
        PROVIDED "AS-IS" AND,       60 days of purchase to the store
        TO THE MAXIMUM              where you purchased your
        EXTENT PERMITTED BY         license with a dated receipt for
        APPLICABLE LAW,             a full refund. If the store is
        INTUIT, ITS AFFILIATES,     unable or unwilling to issue a
        LICENSORS,                  refund or you obtained the
        PARTICIPATING               Software directly from Intuit,
        FINANCIAL                   you may uninstall and delete all
        INSTITUTIONS, THIRD-        copies of the Software and
        PARTY CONTENT OR            return the Software with a
        SERVICE PROVIDERS,          dated receipt or packing slip
        DEALERS AND                 within 60 days of purchase via
        SUPPLIERS                   U.S. mail to Intuit Inc., Returns
        (COLLECTIVELY,              Department, PO Box 190004,
        "SUPPLIERS") DISCLAIM       Greenville, SC 29390-9004 or
        ALL GUARANTEES AND          via UPS to Intuit Inc., Returns
        WARRANTIES,                 Department, 110 Hidden Lake
        WHETHER EXPRESS,            Circle, Duncan, SC 29334.
        IMPLIED OR                  ...(ii) Limited Warranty. (a) If
        STATUTORY,                  the CDROM on which the
        REGARDING THE               Software is stored is defective,
        SOFTWARE, SERVICES,         then return the CDROM to
        CONTENT, CDROMS             Intuit Inc., Returns Department,
        AND RELATED                 PO Box 19004, Greenville, SC
        MATERIALS                   29390-9004 within 60 days of
                                    shipment (or in the case of a
                                    retail purchase, within 60 days
                                    of purchase) with a dated
                                    receipt or packing slip, and a
                                    replacement CDROM will be
                                    mailed to you....

35      DISCLAIMER OF               A. LIMITED WARRANTY
        WARRANTIES: OTHER           AND DISCLAIMER: Licensor
        THAN AS STATED IN           warrants that the Software will
        THIS SECTION 10. A.         perform substantially in
        ABOVE, AND TO THE           accordance with the
        MAXIMUM EXTENT              descriptions and specifications
        PERMITTED BY THE            in the documentation
        LAW NEITHER                 accompanying such Software
        LICENSOR NOR ITS            for a period of ninety (90) days
        THIRD PARTY                 after purchase of the Software
        LICENSORS MAKE ANY          under normal use.
        OTHER WARRANTIES            Notwithstanding anything to
        OR PROMISES,                the contrary, Licensor makes
        WHETHER EXPRESS OR          no representation or warranty
        IMPLIED....                 with respect to any third party
                                    software, and undertakes no
                                    obligations with respect to any
                                    third party software.

36      TO THE MAXIMUM              6. Limited Warranty: Symantec
        EXTENT PERMITTED BY         warrants that the media on
        APPLICABLE LAW, THE         which the Software is
        ABOVE WARRANTY IS           distributed will be free from
        EXCLUSIVE AND IN            defects for a period of sixty
        LIEU OF ALL OTHER           (60) days from the date of
        WARRANTIES,                 delivery of the Software to
        WHETHER EXPRESS OR          You. Your sole remedy in the
        IMPLIED....                 event of a breach of this
                                    warranty will be that Symantec
                                    will, at its option, replace any
                                    defective media returned to
                                    Symantec within the warranty
                                    period or refund the money
                                    You paid for the Software.
                                    Symantec does not warrant that
                                    the Software will meet Your
                                    requirements or that operation
                                    of the Software will be
                                    uninterrupted or that the
                                    Software will be error-free.

38      ... the Software and        6. LIMITED WARRANTY.
        access to any websites,     Except as may be otherwise
        online services and CD      provided in Section 14, Adobe
        Services as- is and with    warrants to the individual or
        all faults and expressly    entity that first purchases a
        disclaim all other          license for the Software for use
        warranties, conditions,     pursuant to the terms of this
        representations or terms,   agreement that the Software
        express or implied,         will perform substantially in
        whether by statute,         accordance with the
        common law, custom, usage   Documentation for the ninety
        or otherwise....            (90) day period following
                                    receipt of the Software when
                                    used on the recommended
                                    operating system and hardware
                                    configuration. Non-substantial
                                    variation of performance from
                                    the Documentation does not
                                    establish a warranty right.

40      ... the Software and        6. LIMITED WARRANTY.
        access to any websites,     Except as may be otherwise
        online services and CD      provided in Section 14, Adobe
        Services as- is and with    warrants to the individual or
        all faults and expressly    entity that first purchases a
        disclaim all other          license for the Software for use
        warranties, conditions,     pursuant to the terms of this
        representations or terms,   agreement that the Software
        express or implied,         will perform substantially in
        whether by statute,         accordance with the
        common law, custom, usage   Documentation for the ninety
        or otherwise....            (90) day period following
                                    receipt of the Software when
                                    used on the recommended
                                    operating system and hardware
                                    configuration. Non-substantial
                                    variation of performance from
                                    the Documentation does not
                                    establish a warranty right.

41      ... the Software and        6. LIMITED WARRANTY.
        access to any websites,     Except as may be otherwise
        online services and CD      provided in Section 14, Adobe
        Services as- is and with    warrants to the individual or
        all faults and expressly    entity that first purchases a
        disclaim all other          license for the Software for use
        warranties, conditions,     pursuant to the terms of this
        representations or terms,   agreement that the Software
        express or implied,         will perform substantially in
        whether by statute,         accordance with the
        common law, custom, usage   Documentation for the ninety
        or otherwise....            (90) day period following
                                    receipt of the Software when
                                    used on the recommended
                                    operating system and hardware
                                    configuration. Non-substantial
                                    variation of performance from
                                    the Documentation does not
                                    establish a warranty right.

44      ... DISCLAIM ALL            9. SATISFACTION
        GUARANTEES AND              GUARANTEED. If you are not
        WARRANTIES,                 satisfied with the Software and
        WHETHER EXPRESS,            (a) You purchased the Software
        IMPLIED OR                  from a retail store, you may
        STATUTORY,                  uninstall and delete all copies
        REGARDING THE               of the Software from your
        SOFTWAREY FURTHER,          computers) and return it within
        INTUIT DOES NOT             60 days of purchase to the store
        WARRANT ACCESS TO           where you purchased your
        THE INTERNET OR TO          license with a dated receipt for
        ANY OTHER SERVICE           a full refund. If the store is
        OR CONTENT OR DATA          unable or unwilling to issue a
        THROUGH THE                 refund or you obtained the
        SOFTWARE....                Software directly from Intuit,
                                    you may uninstall and delete all
                                    copies of the Software and
                                    return the Software with a
                                    dated receipt or packing slip
                                    within 60 days of purchase via
                                    U.S. mail to Intuit Inc... (b) You
                                    obtained the Software directly
                                    from Intuit via an Internet
                                    download, you may submit a
                                    written request to Intuit
                                    including your name, contact
                                    and product order information
                                    to Intuit Inc....(c) The
                                    Software was pre-installed on
                                    your computer when you
                                    bought it, or if CDROMs came
                                    packaged with your computer
                                    at no extra charge, follow the
                                    manufacturer's applicable
                                    return policy; or (d) You
                                    obtained the Software by
                                    downloading it on your
                                    computer, contact the [site
                                    provider].

47      NO OTHER                    9. Limited Warranty.
        WARRANTIES. EXCEPT          Pinnacle warrants to the
        AS SET FORTH ABOVE,         original licensee that the
        THE SOFTWARE IS             Software, as delivered, will
        PROVIDED ON AN "AS          perform in accordance with the
        IS" BASIS. YOU ASSUME       accompanying documentation
        ALL RESPONSIBILITIES        for a period of 30 days from the
        FOR THE QUALITY AND         date of the original purchase
        PERFORMANCE OF THE          ("Limited Warranty").
        SOFTWARE. TO THE            Pinnacle's entire liability and
        MAXIMUM EXTENT              your exclusive remedy for
        PERMITTED BY                breach of the preceding
        APPLICABLE LAW,             Limited Warranty shall be, at
        PINNACLE DISCLAIMS          Pinnacle's sole option, repair or
        ALL WARRANTIES,             replacement of the Software
        EITHER EXPRESS OR           that does not meet the warranty
        IMPLIED....                 set forth herein and that is
                                    returned to Pinnacle. This
                                    limited warranty shall be void
                                    if failure of the Software has
                                    resulted from any accident,
                                    abuse, misuse or misapplication
                                    by you. Any replacement
                                    Software will be warranted for
                                    the remainder of the original
                                    warranty period or 30 days,
                                    whichever is longer.

48      DISCLAIMER OF               A. LIMITED WARRANTY
        WARRANTIES: OTHER           AND DISCLAIMER: Licensor
        THAN AS STATED IN           warrants that the Software will
        THIS SECTION 10. A.         perform substantially in
        ABOVE, AND TO THE           accordance with the
        MAXIMUM EXTENT              descriptions and specifications
        PERMITTED BY THE            in the documentation
        LAW NEITHER                 accompanying such Software
        LICENSOR NOR ITS            for a period of ninety (90) days
        THIRD PARTY                 after purchase of the Software
        LICENSORS MAKE ANY          under normal use.
        OTHER WARRANTIES            Notwithstanding anything to
        OR PROMISES,                the contrary, Licensor makes
        WHETHER EXPRESS OR          no representation or warranty
        IMPLIED....                 with respect to any third party
                                    software, and undertakes no
                                    obligations with respect to any
                                    third party software.

50      The warranties and          5. Limited Warranty. (i)
        conditions stated in this   Kaspersky Lab warrants that
        Agreement are in lieu of    for six (6) months from first
        all other conditions,       download or installation the
        warranties or other terms   Software purchased on a
        concerning the supply or    physical medium will perform
        purported supply of,        substantially in accordance
        failure to supply or        with the functionality described
        delay in supplying the      in the Documentation when
        Software or the             operated properly and in the
        Documentation which might   manner specified in the
        but for this paragraph      Documentation.
        (vi) have effect between
        the Kaspersky Lab and
        your or would otherwise
        be implied into or
        incorporated into this
        Agreement or any
        collateral contract,
        whether by statute,
        common law or otherwise,
        all of which are hereby
        excluded (including,
        without limitation, the
        implied conditions,
        warranties or other terms
        as to satisfactory
        quality, fitness for
        purpose or as to the use
        of reasonable skill and
        care).

52      The Limited Warranty that   17. LIMITED WARRANTY
        appears above is the only   FOR SOFTWARE
        express warranty made to    ACQUIRED IN THE US AND
        you and is provided in      CANADA. Microsoft warrants
        lieu of any other express   that the Software will perform
        warranties or similar       substantially in accordance
        obligations (if any)        with the accompanying
        created by any              materials for a period of ninety
        advertising,                (90) days from the date of
        documentation, packaging,   receipt. If an implied warranty
        or other communications.    or condition is created by your
        Except for the Limited      state/jurisdiction and federal or
        Warranty and to the         state/provincial law prohibits
        maximum extent permitted    disclaimer of it, you also have
        by applicable law,          an implied warranty or
        Microsoft and its           condition, BUT ONLY AS TO
        suppliers provide the       DEFECTS DISCOVERED
        Software and support        DURING THE PERIOD OF
        services (if any) AS IS     THIS LIMITED WARRANTY
        AND WITH ALL FAULTS, and    (NINETY DAYS). AS TO
        hereby disclaim all other   ANY DEFECTS
        warranties and              DISCOVERED AFTER THE
        conditions, whether         NINETY-DAY PERIOD,
        express, implied or         THERE IS NO WARRANTY
        statutory....               OR CONDITION OF ANY
                                    KIND. Some
                                    states/jurisdictions do not allow
                                    limitations on how long an
                                    implied warranty or condition
                                    lasts, so the above limitation
                                    may not apply to you. Any
                                    supplements or updates to the
                                    Software, including without
                                    limitation, any (if any) service
                                    packs or hot fixes provided to
                                    you after the expiration of the
                                    ninety day Limited Warranty
                                    period are not covered by any
                                    warranty or condition, express,
                                    implied or statutory.

53      ... the Software and        6. LIMITED WARRANTY.
        access to any websites,     Except as may be otherwise
        online services and CD      provided in Section 14, Adobe
        Services as-is and with     warrants to the individual or
        all faults and expressly    entity that first purchases a
        disclaim all other          license for the Software for use
        warranties, conditions,     pursuant to the terms of this
        representations or terms,   agreement that the Software
        express or implied,         will perform substantially in
        whether by statute,         accordance with the
        common law, custom, usage
        or otherwise....

                                    Documentation for the ninety
                                    (90) day period following
                                    receipt of the Software when
                                    used on the recommended
                                    operating system and hardware
                                    configuration. Non-substantial
                                    variation of performance from
                                    the Documentation does not
                                    establish a warranty right.

55      The Limited Warranty that   16. LIMITED WARRANTY
        appears above is the only   FOR SOFTWARE
        express warranty made to    ACQUIRED IN THE US AND
        you and is provided in      CANADA. Microsoft warrants
        lieu of any other express   that the Software will perform
        warranties or similar       substantially in accordance
        obligations (if any)        with the accompanying
        created by any              materials for a period of ninety
        advertising,                (90) days from the date of
        documentation, packaging,   receipt.
        or other communications.
        Except for the Limited
        Warranty and to the
        maximum extent permitted
        by applicable law,
        Microsoft and its
        suppliers provide the
        Software and support
        services (if any) AS IS
        AND WITH ALL FAULTS, and
        hereby disclaim all other
        warranties and
        conditions, whether
        express, implied or
        statutory....

56      NO OTHER                    B. LIMITED WARRANTY
        WARRANTIES. TO THE          FOR SOFTWARE
        MAXIMUM EXTENT              ACQUIRED IN THE U.S.
        PERMITTED BY                AND CANADA. Microsoft
        APPLICABLE LAW,             warrants that (a) the software
        MICROSOFT AND ITS           will perform substantially in
        SUPPLIERS DISCLAIM          accordance with the
        ALL OTHER                   accompanying written
        WARRANTIES AND              materials for a period of ninety
        CONDITIONS, EITHER          (90) days from the date of
        EXPRESS OR IMPLIED....      receipt, and (b) any support
                                    services provided by Microsoft
                                    shall be substantially as
                                    described in applicable written
                                    materials provided to you by
                                    Microsoft, and Microsoft
                                    support engineers will make
                                    commercially reasonable
                                    efforts to solve any problem
                                    issues. Some states and
                                    jurisdictions do not allow
                                    limitations on duration of an
                                    implied warranty, so the above
                                    limitation may not apply to
                                    you. To the extent allowed by
                                    applicable law, implied
                                    warranties on the software, if
                                    any, are limited to ninety (90)
                                    days.

57      NO OTHER                    A. LIMITED WARRANTY. If
        WARRANTIES. THE             you follow the instructions and
        LIMITED WARRANTY IS         the software is properly
        THE ONLY DIRECT             licensed, the software will
        WARRANTY FROM               perform substantially as
        MICROSOFT.                  described in the Microsoft
        MICROSOFT GIVES NO          materials that you receive in or
        OTHER EXPRESS               with the software. B. TERM
        WARRANTIES,                 OF WARRANTY;
        GUARANTEES OR               WARRANTY RECIPIENT;
        CONDITIONS.                 LENGTH OF ANY IMPLIED
                                    WARRANTIES. The limited
                                    warranty covers the software
                                    for one year after acquired by
                                    the first user.

58      ... the Software and        6. LIMITED WARRANTY.
        access to any websites,     Except as may be otherwise
        online services and CD      provided in Section 14, Adobe
        Services as- is and with    warrants to the individual or
        all faults and expressly    entity that first purchases a
        disclaim all other          license for the Software for use
        warranties, conditions,     pursuant to the terms of this
        representations or terms,   agreement that the Software
        express or implied,         will perform substantially in
        whether by statute,         accordance with the
        common law, custom, usage   Documentation for the ninety
        or otherwise....            (90) day period following
                                    receipt of the Software when
                                    used on the recommended
                                    operating system and hardware
                                    configuration. Non-substantial
                                    variation of performance from
                                    the Documentation does not
                                    establish a warranty right.

61      TO THE MAXIMUM              8. Limited Warranty: Symantec
        EXTENT PERMITTED BY         warrants that the media on
        APPLICABLE LAW, THE         which the Software is
        ABOVE WARRANTY IS           distributed will be free from
        EXCLUSIVE AND IN            defects for a period of sixty
        LIEU OF ALL OTHER           (60) days from the date of
        WARRANTIES,                 delivery of the Software to
        WHETHER EXPRESS OR          You. Your sole remedy in the
        IMPLIED....                 event of a breach of this
                                    warranty will be that Symantec
                                    will, at its option, replace any
                                    defective media returned to
                                    Symantec within the warranty
                                    period or refund the money
                                    You paid for the Software.
                                    Symantec does not warrant that
                                    the Software will meet Your
                                    requirements or that operation
                                    of the Software will be
                                    uninterrupted or that the
                                    Software will be error-free. For
                                    the avoidance of doubt,
                                    references to "Software" in the
                                    foregoing sentence shall
                                    include, but not be limited to,
                                    the Online Backup Feature and
                                    Technical Support.

62      DISCLAIMER OF WARRANTIES.   16. LIMITED WARRANTY
        The Limited Warranty that   FOR SOFTWARE
        appears above is the only   ACQUIRED IN THE US AND
        express warranty made to    CANADA. Microsoft warrants
        you and is provided in      that the Software will perform
        lieu of any other express   substantially in accordance
        warranties or similar       with the accompanying
        obligations (if any)        materials for a period of ninety
        created by any              (90) days from the date of
        advertising,                receipt.
        documentation, packaging,
        or other communications.

63      DISCLAIMER OF               10. SATISFACTION
        WARRANTIES. EXCEPT          GUARANTEED/LIMITED
        AS EXPRESSLY                WARRANTY. (i) Satisfaction
        PROVIDED IN SECTION         Guarantee. If you are not
        l0 ABOVE, THE               satisfied with the Software and
        SOFTWARE, SERVICES,         (a) You purchased the Software
        AND ANY CONTENT             from a retail store, you may
        ACCESSIBLE THROUGH          uninstall and delete all copies
        THE SOFTWARE OR             of the Software from your
        SERVICES ARE                computers) and return it within
        PROVIDED "AS-IS" AND,       60 days of purchase to the store
        TO THE MAXIMUM              where you purchased your
        EXTENT PERMITTED BY         license with a dated receipt for
        APPLICABLE LAW,             a full refund. If the store is
        INTUIT, ITS AFFILIATES,     unable or unwilling to issue a
        LICENSORS,                  refund or you obtained the
        PARTICIPATING               Software directly from Intuit,
        FINANCIAL                   you may uninstall and delete all
        INSTITUTIONS, THIRD-        copies of the Software and
        PARTY CONTENT OR            return the Software with a
        SERVICE PROVIDERS,          dated receipt or packing slip
        DEALERS AND                 within 60 days of purchase via
        SUPPLIERS                   U.S. mail to Intuit Inc., Returns
        (COLLECTIVELY,              Department, PO Box 190004,
        "SUPPLIERS") DISCLAIM       Greenville, SC 29390-9004 or
        ALL GUARANTEES AND          via UPS to Intuit Inc., Returns
        WARRANTIES,                 Department, 110 Hidden Lake
        WHETHER EXPRESS,            Circle, Duncan, SC 29334....
        IMPLIED OR                  (ii) Limited Warranty. (a) If the
        STATUTORY,                  CDROM on which the
        REGARDING THE               Software is stored is defective,
        SOFTWARE, SERVICES,         then return the CDROM to
        CONTENT, CDROMS             Intuit Inc., Returns Department,
        AND RELATED                 PO Box 19004, Greenville, SC
        MATERIALS....               29390-9004 within 60 days of
                                    shipment (or in the case of a
                                    retail purchase, within 60 days
                                    of purchase) with a dated
                                    receipt or packing slip, and a
                                    replacement CDROM will be
                                    mailed to you....

64      NO OTHER                    10. LIMITED WARRANTY.
        WARRANTIES OR               Trend Micro warrants that the
        REMEDIES. EXCEPT FOR        Software will perform
        THE EXPRESS LIMITED         substantially in accordance
        WARRANTY IN SECTION         with the accompanying
        10, THE TERMS OF THIS       documentation for 30 days
        AGREEMENT ARE IN            from the date of purchase.
        LIEU OF ALL                 Trend Micro does not warrant
        WARRANTIES, (EXPRESS        that the Software will meet
        OR IMPLIED),                your requirements or that your
        CONDITIONS,                 use of the Software will be
        UNDERTAKINGS....            uninterrupted or error-free.
                                    GIVEN THE NATURE AND
                                    VOLUME OF MALICIOUS
                                    AND UNWANTED
                                    ELECTRONIC CONTENT,
                                    TREND MICRO DOES NOT
                                    WARRANT THAT THE
                                    SECURITY COMPONENTS
                                    OF THE SOFTWARE
                                    (PATTERN FILES,
                                    DEFINITIONS OR RULES)
                                    AND RELATED UPDATES
                                    ARE COMPLETE OR
                                    ACCURATE OR THAT
                                    THEY DETECT, REMOVE
                                    OR CLEAN ALL, OR ONLY,
                                    MALICIOUS OR
                                    UNWANTED
                                    APPLICATIONS AND FILES.

66      DISCLAIMER OF               A. LIMITED WARRANTY
        WARRANTIES: OTHER           AND DISCLAIMER: Licensor
        THAN AS STATED IN           warrants that the Software will
        THIS SECTION 10. A.         perform substantially in
        ABOVE, AND TO THE           accordance with the
        MAXIMUM EXTENT              descriptions and specifications
        PERMITTED BY THE            in the documentation
        LAW NEITHER                 accompanying such Software
        LICENSOR NOR ITS            for a period of ninety (90) days
        THIRD PARTY                 after purchase of the Software
        LICENSORS MAKE ANY          under normal use.
        OTHER WARRANTIES            Notwithstanding anything to
        OR PROMISES,                the contrary, Licensor makes
        WHETHER EXPRESS OR          no representation or warranty
        IMPLIED....                 with respect to any third party
                                    software, and undertakes no
                                    obligations with respect to any
                                    third party software.

67      THE PROGRAM IS              LIMITED WARRANTY AND
        PROVIDED AS IS              DISCLAIMER: FINAL
        WITHOUT WARRANTY            DRAFT, INC. WARRANTS
        OF ANY KIND. YOU            THE MEDIA ON WHICH
        ASSUME THE ENTIRE           THE PROGRAM [S
        RISK AS TO THE              PROVIDED TO BE FREE
        RESULTS AND                 FROM DEFECTS IN
        PERFORMANCE OF THE          MATERIALS AND
        PROGRAM. FINAL              WORKMANSHIP FOR 30
        DRAFT, INC. MAKES NO        DAYS AFTER PURCHASE.
        REPRESENTATION OR           DEFECTIVE MEDIA MAY
        WARRANTIES WITH             BE RETURNED FOR
        RESPECT TO THE              REPLACEMENT WITHOUT
        CONTENTS HEREOF             CHARGE DURING THE 30-DAY
        AND SPECIFICALLY            WARRANTY PERIOD
        DISCLAIMS ANY               UNLESS THE MEDIA HAS
        IMPLIED WARRANTIES          BEEN DAMAGED BY
        OF NONINFRINGEMENT,         ACCIDENT OR MISUSE.
        MERCHANTABILITY OR
        FITNESS FOR ANY
        PARTICULAR PURPOSE.
        FURTHER, FINAL
        DRAFT, INC. DOES NOT
        WARRANT,
        GUARANTEE, OR MAKE
        ANY REPRESENTATIONS
        REGARDING THE
        CORRECTNESS,
        ACCURACY,
        RELIABILITY,
        COMPATIBILITY OR
        UNINTERRUPTED
        OPERATION OF THE
        PROGRAM, OR
        OTHERWISE....

70      ... the Software and        6. LIMITED WARRANTY.
        access to any websites,     Except as may be otherwise
        online services and CD      provided in Section 14, Adobe
        Services as- is and with    warrants to the individual or
        all faults and expressly    entity that first purchases a
        disclaim all other          license for the Software for use
        warranties, conditions,     pursuant to the terms of this
        representations or terms,   agreement that the Software
        express or implied,         will perform substantially in
        whether by statute,         accordance with the
        common law, custom, usage   Documentation for the ninety
        or otherwise....            (90) day period following
                                    receipt of the Software when
                                    used on the recommended
                                    operating system and hardware
                                    configuration. Non-substantial
                                    variation of performance from
                                    the Documentation does not
                                    establish a warranty right.

73      DISCLAIMER OF               10. SATISFACTION
        WARRANTIES. EXCEPT          GUARANTEED/LIMITED
        AS EXPRESSLY                WARRANTY. (i) Satisfaction
        PROVIDED IN SECTION         Guarantee. If you are not
        10 ABOVE, THE               satisfied with the Software and
        SOFTWARE, SERVICES,         (a) You purchased the Software
        AND ANY CONTENT             from a retail store, you may
        ACCESSIBLE THROUGH          uninstall and delete all copies
        THE SOFTWARE OR             of the Software from your
        SERVICES ARE                computers) and return it within
        PROVIDED "AS-IS" AND,       60 days of purchase to the store
        TO THE MAXIMUM              where you purchased your
        EXTENT PERMITTED BY         license with a dated receipt for
        APPLICABLE LAW,             a full refund. If the store is
        INTUIT, ITS AFFILIATES,     unable or unwilling to issue a
        LICENSORS,                  refund or you obtained the
        PARTICIPATING               Software directly from Intuit,
        FINANCIAL                   you may uninstall and delete all
        INSTITUTIONS, THIRD-        copies of the Software and
        PARTY CONTENT OR            return the Software with a
        SERVICE PROVIDERS,          dated receipt or packing slip
        DEALERS AND                 within 60 days of purchase via
        SUPPLIERS                   U.S. mail to Intuit Inc., Returns
        (COLLECTIVELY,              Department, PO Box 190004,
        "SUPPLIERS") DISCLAIM       Greenville, SC 29390-9004 or
        ALL GUARANTEES AND          via UPS to Intuit Inc., Returns
        WARRANTIES,                 Department, 110 Hidden Lake
        WHETHER EXPRESS,            Circle, Duncan, SC 29334....
        IMPLIED OR                  (ii) Limited Warranty. (a) if the
        STATUTORY,                  CDROM on which the
        REGARDING THE               Software is stored is defective,
        SOFTWARE, SERVICES,         then return the CDROM to
        CONTENT, CDROMS             Intuit Inc., Returns Department,
        AND RELATED                 PO Box 19004, Greenville, SC
        MATERIALS                   29390-9004 within 60 days of
                                    shipment (or in the case of a
                                    retail purchase, within 60 days
                                    of purchase) with a dated
                                    receipt or packing slip, and a
                                    replacement CDROM will be
                                    mailed to you....

75      ... DISCLAIM ALL            9. SATISFACTION
        GUARANTEES AND              GUARANTEED. If you are not
        WARRANTIES,                 satisfied with the Software and
        WHETHER EXPRESS,            (a) You purchased the Software
        IMPLIED OR                  from a retail store, you may
        STATUTORY,                  uninstall and delete all copies
        REGARDING THE               of the Software from your
        SOFTWARE, FINANCIAL         computers) and return it within
        INSTITUTION SERVICES,       60 days of purchase to the store
        THIRD PARTY                 where you purchased your
        SERVICES, CONTENT,          license with a dated receipt for
        AND RELATED                 a full refund. If the store is
        MATERIALS,                  unable or unwilling to issue a
        INCLUDING ANY               refund or you obtained the
        WARRANTY OF FITNESS         Software directly from Intuit,
        FOR A PARTICULAR            you may uninstall and delete all
        PURPOSE, TITLE,             copies of the Software and
        MERCHANTABILITY,            return the Software with a
        AND NON-                    dated receipt or packing slip
        INFRINGEMENT.               within 60 days of purchase via
                                    U.S. mail to Intuit Inc., Returns
                                    Department, PO Box 190004,
                                    Greenville, SC 29390-9004 or
                                    via UPS to Intuit Inc., Returns
                                    Department, 110 Hidden Lake
                                    Circle, Duncan, SC 29334. (b)
                                    You obtained the Software
                                    directly from Intuit via an
                                    Internet download, you may
                                    submit a written request to
                                    Intuit including your name,
                                    contact and product order
                                    information to Intuit Inc.,
                                    Returns Department, PO Box
                                    19004, Greenville, SC 29390-
                                    9004.

79      DISCLAIMER OF               No limited warranty despite the
        WARRANTIES. EXCEPT          language in the disclaimer.
        FOR THE LIMITED
        WARRANTY PROVIDED
        ABOVE, THE SOFTWARE
        IS PROVIDED "AS IS." TO
        THE FULL EXTENT
        PERMITTED BY
        APPLICABLE LOCAL
        LAW, SONY AND THE
        THIRD PARTY
        PROVIDERS DISCLAIM
        ALL OTHER
        WARRANTIES,
        REPRESENTATIONS AND
        CONDITIONS, EXPRESS
        OR IMPLIED,
        INCLUDING, BUT NOT
        LIMITED TO, THE
        IMPLIED WARRANTIES,
        REPRESENTATIONS AND
        CONDITIONS OF
        MERCHANTABILITY,
        FITNESS FOR A
        PARTICULAR PURPOSE
        AND NON-
        INFRINGEMENT. NO
        ORAL OR WRITTEN
        INFORMATION OR
        ADVICE GIVEN BY
        SONY OR A SONY
        AUTHORIZED
        REPRESENTATIVE
        SHALL CREATE A
        WARRANTY.

81      NO OTHER                    LIMITED WARRANTY. If
        WARRANTIES. THE             you follow the instructions, the
        LIMITED WARRANTY IS         software will perform
        THE ONLY DIRECT             substantially as described in the
        WARRANTY FROM               Microsoft materials that you
        MICROSOFT.                  receive in or with the software.
        MICROSOFT GIVES NO
        OTHER EXPRESS
        WARRANTIES,
        GUARANTEES OR
        CONDITIONS.

83      NO OTHER                    A. LIMITED WARRANTY. If
        WARRANTIES. THE             you follow the instructions and
        LIMITED WARRANTY IS         the software is properly
        THE ONLY DIRECT             licensed, the software will
        WARRANTY FROM               perform substantially as
        MICROSOFT.                  described in the Microsoft
        MICROSOFT GIVES NO          materials that you receive in or
        OTHER EXPRESS               with the software
        WARRANTIES,
        GUARANTEES OR
        CONDITIONS.

84      TO THE EXTENT               No limited warranty despite the
        PERMITTED BY                language in the disclaimer.
        APPLICABLE LAW AND
        EXCEPT AS EXPRESSLY
        PROVIDED ABOVE, THE
        SOFTWARE IS "AS-IS"
        AND PALO ALTO
        SOFTWARE, INC....
        DISCLAIMS] ALL
        WARRANTIES, EXPRESS
        OR IMPLIED,
        REGARDING THE
        SOFTWARE, DISK AND
        RELATED MATERIALS....

86      DISCLAIMER OF               A. LIMITED WARRANTY
        WARRANTIES: OTHER           AND DISCLAIMER: Licensor
        THAN AS STATED IN           warrants that the Software will
        THIS SECTION 10. A.         perform substantially in
        ABOVE, AND TO TI-IE         accordance with the
        MAXIMUM EXTENT              descriptions and specifications
        PERMITTED BY THE            in the documentation
        LAW NEITHER                 accompanying such Software
        LICENSOR NOR ITS            for a period of ninety (90) days
        THIRD PARTY                 after purchase of the Software
        LICENSORS MAKE ANY          under normal use.
        OTHER WARRANTIES            Notwithstanding anything to
        OR PROMISES,                the contrary, Licensor makes
        WHETHER EXPRESS OR          no representation or warranty
        IMPLIED....                 with respect to any third party
                                    software, and undertakes no
                                    obligations with respect to any
                                    third party software.

89      NO OTHER                    A. LIMITED WARRANTY. If
        WARRANTIES. THE             you follow the instructions, the
        LIMITED WARRANTY IS         software will perform
        THE ONLY DIRECT             substantially as described in the
        WARRANTY FROM               Microsoft materials that you
        MICROSOFT.                  receive in or with the software.
        MICROSOFT GIVES NO
        OTHER EXPRESS
        WARRANTIES,
        GUARANTEES OR
        CONDITIONS.

93      DISCLAIMER OF               10. SATISFACTION
        WARRANTIES. EXCEPT          GUARANTEED/LIMITED
        AS EXPRESSLY                WARRANTY. (i) Satisfaction
        PROVIDED IN SECTION         Guarantee. If you are not
        10 ABOVE, THE               satisfied with the Software and
        SOFTWARE, SERVICES,         (a) You purchased the Software
        AND ANY CONTENT             from a retail store, you may
        ACCESSIBLE THROUGH          uninstall and delete all copies
        THE SOFTWARE OR             of the Software from your
        SERVICES ARE                computers) and return it within
        PROVIDED "AS-IS" AND,       60 days of purchase to the store
        TO THE MAXIMUM              where you purchased your
        EXTENT PERMITTED BY         license with a dated receipt for
        APPLICABLE LAW,             a full refund. If the store is
        INTUIT, ITS AFFILIATES,     unable or unwilling to issue a
        LICENSORS,                  refund or you obtained the
        PARTICIPATING               Software directly from Intuit,
        FINANCIAL                   you may uninstall and delete all
        INSTITUTIONS, THIRD-        copies of the Software and
        PARTY CONTENT OR            return the Software with a
        SERVICE PROVIDERS,          dated receipt or packing slip
        DEALERS AND                 within 60 days of purchase via
        SUPPLIERS                   U.S. mail to Intuit Inc., Returns
        (COLLECTIVELY,              Department, PO Box 190004,
        "SUPPLIERS") DISCLAIM       Greenville, SC 29390-9004 or
        ALL GUARANTEES AND          via UPS to Intuit Inc., Returns
        WARRANTIES,                 Department, l 10 Hidden Lake
        WHETHER EXPRESS,            Circle, Duncan, SC 29334.
        IMPLIED OR                  ...(ii) Limited Warranty. (a) If
        STATUTORY,                  the CDROM on which the
        REGARDING THE               Software is stored is defective,
        SOFTWARE, SERVICES,         then return the CDROM to
        CONTENT, CDROMS             Intuit Inc., Returns Department,
        AND RELATED                 PO Box 19004, Greenville, SC
        MATERIALS                   29390-9004 within 60 days of
                                    shipment (or in the case of a
                                    retail purchase, within 60 days
                                    of purchase) with a dated
                                    receipt or packing slip, and a
                                    replacement CDROM will be
                                    mailed to you....

97      NO OTHER                    LIMITED WARRANTY. If
        WARRANTIES. THE             you follow the instructions, the
        LIMITED WARRANTY IS         software will perform
        THE ONLY DIRECT             substantially as described in the
        WARRANTY FROM               Microsoft materials that you
        MICROSOFT.                  receive in or with the software.
        MICROSOFT GIVES NO
        OTHER EXPRESS
        WARRANTIES,
        GUARANTEES OR
        CONDITIONS.

99      EXCEPT FOR THE              1.8 LIMITED WARRANTY:
        EXPRESS LIMITED             Except as may be otherwise
        WARRANTY ABOVE              provided in this Agreement or
        AND FOR ANY                 unless the Product is a Trial
        WARRANTY,                   Version as set forth in Section
        CONDITION,                  3 or a Pre-Release Version as
        REPRESENTATION OR           set out in Section 7, Corel
        TERM TO THE EXTENT          warrants to the person or entity
        TO WHICH THE SAME           that first purchases a license to
        CANNOT OR MAY NOT           Use this Product that this
        BE EXCLUDED OR              Product will be free from defect
        LIMITED BY LAW              in materials and workmanship
        APPLICABLE TO YOU IN        for ninety (90) days from the
        YOUR JURISDICTION,          date you acquire it. If such a
        THE PRODUCT IS              defect occurs, contact Corel
        PROVIDED ON AN "AS          Customer Service at
        IS" BASIS, WITHOUT          www.corel.com to obtain a
        ANY OTHER                   RMA Number to return the
        WARRANTIES,                 media and Corel will replace it
        REPRESENTATIONS,            free of charge. THIS REMEDY
        CONDITIONS OR TERMS,        IS YOUR EXCLUSIVE
        EXPRESS OR IMPLIED,         REMEDY AND COREL'S
        WHETHER BY LAW,             AND ITS SUPPLIERS' AND
        STATUTE, USAGE OF           DEALERS' ENTIRE
        TRADE, COURSE OF            LIABILITY FOR BREACH
        DEALING OR                  OF THIS WARRANTY OR,
        OTHERWISE,                  WHERE PERMITTED BY
        INCLUDING, BUT NOT          APPLICABLE LAW, FOR
        LIMITED TO,                 ANY OTHER CAUSE OF
        WARRANTIES OF NON-          ACTION (INCLUDING
        INFRINGEMENT OF             NEGLIGENCE)
        THIRD PARTY RIGHTS,         CONCERNING ANY
        INTEGRATION,                DEFECT IN MATERIALS OR
        MERCHANTABLE                WORKMANSHIP IN
        QUALITY,                    RELATION TO THE
        SATISFACTORY                PRODUCT. THIS LIMITED
        QUALITY,                    WARRANTY GIVES YOU
        MERCHANTABILITY OR          CERTAIN LEGAL RIGHTS.
        FITNESS FOR A               YOU MAY HAVE
        PARTICULAR PURPOSE.         ADDITIONAL LEGISLATED
        COREL AND ITS               RIGHTS WHICH MAY
        SUPPLIERS AND               VARY FROM
        DEALERS DO NOT AND          JURISDICTION TO
        CANNOT WARRANT THE          JURISDICTION.
        PERFORMANCE OR
        RESULTS YOU MAY
        OBTAIN BY USING THE
        PRODUCT.


Robert A. Hillman * & Ibrahim Barakat **

* Edwin H. Woodruff Professor of Law, Cornell Law School. The author is Reporter, Principles of the Law of Software Contracts, American Law Institute. All ideas expressed herein are the authors' and not those of the American Law Institute. We thank Mark Grube for able research assistance and the faculty of Boston University Law School for very helpful comments at a workshop presentation.

** Associate, White and Case, L.L.P.; J.D. 2008, Cornell Law School.

(1) We focus on consumer transactions here, but recognize that the analysis could extend to small-business end users of software. See AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF SOFTWARE CONTRACTS [section] 2.02, Tentative Draft No. 1 (2008) [hereinafter ALI PRINCIPLES] (defining and explaining standard-form transfers of generally available software).

(2) The standard form record is often called an End User License Agreement (EULA).

(3) See generally Robert A. Hillman & Jeffrey Rachlinski, Standard-Form Contracting in the Electronic Age, 77 N.Y.U.L. REV. 429 (2002).

(4) A full integration clause states that the parties intend the record to be the complete and exclusive agreement between them on the subject matter.

(5) See infra notes 11-15 and accompanying text.

(6) ALI PRINCIPLES, supra note 1, [section] 1.01(i) ("A 'record' is information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form." (citing UNIF. COMPUTER INFO. TRANSACTIONS ACT (U.C.I.T.A.) [section] 102(a)(55) (2002) and U.C.C. Revised [section] 1-201(b)(31) (2001))).

(7) ALI PRINCIPLES, supra note 1, [section] 2.02, cmt. g ("Many licensors already maintain archival records of website content, including when material was introduced, modified, and removed. Server logs also indicate when and if a web page was modified.").

(8) Contract law's enforcement of standard forms facilitates commerce in a number of ways:
   Standard form exchanges obviously do not constitute the paradigm
   'bargain" of classical contract law with the parties on equal
   footing and each term separately negotiated. Yet standard forms
   benefit both sellers and consumers. By using the form for each
   transaction, sellers standardize risks and reduce bargaining costs.
   Moreover, sellers avoid costly litigation by crafting their form to
   accommodate various judicial interpretations. Sellers likely pass
   along some of these savings to consumers in the form of lower
   prices. Moreover, sellers can best determine the 'particular set of
   terms that "fits" the practical problems and needs that arise ...
   in carrying out the transactions,' and therefore produce the most
   efficient allocation of risks for both parties. Consumers also
   benefit from judicial decisions that weed out offensive clauses. In
   fact, because of the efficiencies and benefits of standard forms,
   it is not a reach to predict that the economy would come to a
   screeching halt without them.


Robert A. Hillman, Rolling Contracts, 71 FORDHAM L. REV. 743, 747 (2002) (quoting Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 HARV. L. REV. 1174, 1230 (1983).

(9) See, e.g., John D. Calamari & Joseph M. Perillo, THE LAW OF CONTRACTS [section] 9-42 (3d ed. 1987) ("[A] party who signs an instrument manifests assent to it and may not later complain that he did not read the instrument or that he did not understand its contents.... The thought is that no one could rely on a signed document if the other party could avoid the transaction by saying that he had not read or did not understand the writing.").

(10) The guidelines are modeled after the ALI PRINCIPLES, supra note 1.

(11) Amazon compiles its Top 100 on an hourly basis, so our sample is a snapshot of software titles with some degree of randomness. On November 25, 2007, for example, there were twenty-seven titles that were not on the November 5 list. We did not collect our data on November 5, but used the date only to compile our list of software titles to investigate.

(12) This itself is significant because it shows the lack of visibility of a significant number of EULAs prior to a consumer engaging in a transaction. See infra notes 14, 74-76 and accompanying text.

(13) For example, the number-one best "seller" in the Top 100 on November 5 was Apple's Mac OS X Version 10.5 Leopard, while number three was Apple's Mac OS X Version 10.5 Leopard (5-user family pack). The EULA for both programs is identical. Similarly, Microsoft Office Professional Upgrade (number 39) has the same EULA as Microsoft Office Professional Full Version (number 30).

(14) The EULA in our data for Microsoft Streets and Trips 2008 (number 23) is actually for Microsoft Streets and Trips 2006, and the EULA for Adobe Photoshop Elements 4.0 (Mac) (number 41) is actually for Photoshop Elements 5.0. We kept these two titles in our data, expecting to update these titles when the software developers posted the EULAs on their websites for the actual titles. At the time of this writing, the developers still had not posted the EULAs. We decided not to omit these titles because we believe the EULAs in our data likely represent the EULAs that actually come with the software. In fact, a representative of Microsoft confirmed this for number 23. We note that even well-known and successful software developers apparently fail to post all of the EULAs for their programs and fail to regularly post updated EULAs for new versions of the same software.

(15) Of the fifty-three titles, one Microsoft title (number 19) contains the language "[m]anage your projects ... in one convenient place" that, because of its marginal specificity, is on the borderline between puffing and an express warranty. Another, Nero (number 22), did not disclaim express warranties. We have no reason to believe that the thirty-four titles that hide their EULAs would be less inclined to disclaim their warranties, but even if all thirty-four did not disclaim, at least fifty out of eighty-eight would still have done so.

(16) Some of the "terms of use" are ambiguous as to exactly what is disclaimed. For example, Intuit, the creators of Quicken software set forth the following guarantee on their website:
   100% Satisfaction Guaranteed. If you're not 100% satisfied, return
   Quicken Premier Software 2008 with your dated receipt within 60
   days of purchase for a refund of the purchase price (Return
   shipping and handling charges are not included).


Quicken Premier 2008 Features & Benefits, http://quicken.intuit.com/ personal-finance/premier-portfolio-management.jsp (last visited June 16, 2008). However, Intuit's "Terms of Service" "Disclaimer of Warranties" states that
   Your use of the Site, including any ... content contained therein,
   is entirely at your own risk. The service is provided "As Is," and
   to the maximum extent permitted by applicable law, Intuit ...
   disclaim[s] all guarantees and warranties, whether express,
   implied, or statutory regarding the site and related materials
   including any warranty of fitness for a particular purpose, title,
   merchantability and non-infringement.


Quicken.com Terms of Service, http://help.quicken.com/support/termsofservice/index.shtml (last visited Dec. 12, 2008). The disclaimer governs "use of the Site," and the "service" provided by the site, but the reference to a disclaimer of "content" and "related materials" suggests that the disclaimer covers express warranties on the site.

Similar 100% satisfaction guarantees are made on the Rosetta Stone website titles, numbers 35, 48, 66, and 86. But these websites' "terms of use" state:
   The material on this Website is provided "as is", without any
   conditions, warranties or other terms of any kind. Accordingly, to
   the maximum extent permitted by law, Rosetta Stone provides you
   with this Website on the basis that Rosetta Stone excludes all
   representations, warranties, conditions and other terms....


Rosetta Stone: Website Terms and Conditions, http://www.rosettastone.com/global/terms (last visited Dec. 12, 2008).

(17) Typically, a consumer can reach the terms of use only if she finds a hyperlink buried at the bottom of a web page somewhere on a licensor's website. This should not constitute sufficient notice. See, e.g., ALI PRINCIPLES, supra note 1, [section] 2.02(c)(2) & cmt. c. Further, courts have found this controversial "browsewrap" presentation unenforceable on offer and acceptance grounds, holding that mere use of the site does not constitute acceptance of the terms of use. See, e.g., Specht v. Netscape Commc'ns Corp., 306 F.3d 17, 31-32 (2d Cir. 2002). In addition, as we discuss later, contract law favors express quality assertions over conflicting language that seeks to negate them so even absent notice and formation problems a warranty should trump the terms-of-use disclaimer. See infra notes 67-71 and accompanying text.

(18) Apple Mac OS X Leopard, Features, http://www.apple.com/macosx/features/bootcamp.html (last visited Dec. 12, 2008).

(19) Mac OS X (Leopard) Software License, http://images.apple.com/legal/sla/docs/macosx105.pdf (last visited Nov. 24, 2008).

(20) Id.

(21) The eighteen titles are 1, 5, 8, 9, 11, 12, 33, 34, 36, 44, 61, 63, 67, 73, 75, 79, 84, 93. To complete the picture of this category, the Intuit titles (numbers 5, 11, 33, 34, 44, 63, 73, 75, and 93) contain "satisfaction" guarantees in their EULAs, authorizing for a limited time a return of the software for a refund, notwithstanding the EULAs' disclaimers of express warranties. Although these guarantees offer some protection, consumers may still be enticed to enter a transaction because of express warranties, but fail to take advantage of the guarantee because of the guarantee's limited time and other requirements. Further, a consumer cannot seek consequential damages for breach of the express warranties or otherwise enforce them under the satisfaction clause.

(22) Retail Software License Terms for Microsoft Office Home and Student 2007, Limited Warranty, [section] A, http://download.microsoft.com/documents/ useterms/Office%20Home%20and%20Student_2007_English_bc25f42d-51f94e57-8 a41-846bca63054a.pdf (last visited June 16, 2008).

(23) Id. [section] G.

(24) For a discussion of the materials that accompany the software, see infra notes 29-31 and accompanying text.

(25) Titles 2, 13, 15, 23, 24, 30, 31, 35, 47, 48, 50, 56, 57, 64, 66, 81, 83, 86, 89, 97, 99 belong in this category. Although disclaiming express warranties, titles 13, 24, and 99 also allow a return of the software for a limited time for "defects" in material or workmanship.

(26) Windows XP Professional Overview: Access Files and Applications Remotely, http://www.microsoft.com/windowsxp/evaluation/features/remoteaccess.mspx (last visited June 16, 2008).

(27) Section 18's disclaimer provides:
   The Limited Warranty that appears [in section 17] is the only
   express warranty made to you and is provided in lieu of any
   other express warranties or similar obligations (if any) created by
   any advertising, documentation, packaging, or other
   communications. Except for the Limited Warranty and to the
   maximum extent permitted by applicable law, Microsoft and its
   suppliers provide the software and support services (if any) AS
   IS AND WITH ALL FAULTS, and hereby disclaim all other
   warranties and conditions, whether express, implied or statutory....


Microsoft Windows XP Professional: End-User License Agreement, [section] 18, http://download.microsoft.com/documents/useterms/Windows%20XP%20 SP2_Professional_English_29e61d64-43e3-4ca3-b20l-fe0c62507034.pdf (last visited Nov. 24, 2008).

(28) Id.

(29) Microsoft Information on Terms of Use, http://www.microsoft.com/info/cpyright.mspx (last visited Nov. 24, 2008).

(30) Titles 4, 6, 19, 21, 32, 38, 40, 41, 52, 53, 55, 58, 62, 70 belong in this third category.

(31) We sought to track down whether licensors that provided that their software would perform "substantially in accordance with accompanying materials or documentation" repeated their website express promises and representations in their "'accompanying materials". However, many of these "materials" were unavailable without a purchase. From those that were available, a small sample yielded mixed results. Four user guides (numbers 6, 50, 53 and 57) were lengthy and thorough, explicitly repeating the representations captured in our appendix (and probably most if not all of what is on the licensor's website); however, two of these user guides from Adobe (numbers 6 and 53) contained the following disclaimer:
   The content of this guide is furnished for informational use only,
   is subject to change without notice, and should not be construed
   as a commitment by Adobe Systems Incorporated. Adobe
   Systems Incorporated assumes no responsibility or liability for
   any errors or inaccuracies that may appear in the informational
   content contained in this guide.


Adobe Photoshop Elements 6 User Guide, at ii (2007), http://help.adobe.com/en_US/PhotoshopElements/6.0/pselements_6_help.pdf; Adobe Acrobat 8.0 Professional User Guide, at ii (2007), http://help.adobe.com/en_US/Acrobat/8.0/Professional/help.pdf.

Adobe Acrobat 8.0 Standard (number 38) contains the same disclaimer in its user guide. Adobe Acrobat 8.0 Standard User Guide, at ii (2007), http://help.adobe.com/en_US/Acrobat/8.0/Standard/help.pdf. Further, tile representations on their website appear broader than in the user guide. The representation on the website provides: "Save Adobe PDF files as Microsoft Word documents, retaining the layout, fonts, formatting, and tables, to facilitate reuse of content." Adobe Acrobat 8 Standard, http://www.adobe.com/products/acrobatpro/acrobatstd.html (last visited Mar. 31, 2008). However, the instruction in the user guide contains the following:
   If you don't have the original file from which a PDF was
   created, you can save the PDF as a Word document that you can
   then edit in Word.... Note: When you save a PDF to Word
   format, the resulting file isn't equivalent to a file created in
   Word; some coding information may be lost.


Adobe Acrobat 8.0 Standard User Guide, supra, at 131. See also id. at 136.

The universal user guide furnished by Rosetta Stone for the four titles on our list (numbers 35, 48, 66, and 86) do not repeat their website representations captured in our appendix. However, even if the representations were included in the guide, the following disclaimer is set forth on page ii of the user guide:
   All information in this document is subject to change without
   notice. This document is provided for informational purposes
   only and Rosetta Stone Ltd. makes no guarantees,
   representations or warranties, either express or implied, about the
   information contained within the document or about the
   document itself.


Rosetta Stone User's Guide, at ii (2007), http://www.rosettastone.com/us_assets/documentation/ RSV3_UG_CD)_English_(US).pdf.

(32) See supra note 31.

(33) Additionally, start-up software licensors are most likely to transfer problematic software and therefore be more interested in disclaiming warranties.

(34) See, e.g., Inter-Mark USA, Inc. v. Intuit, 2008 U.S. Dist. LEXIS 18834 (Feb. 27, 2008 N.D. Cal.) (dismissing a claim for breach of implied warranty of merchantability because of the software's disclaimer of warranties); Jordan v. Doonan Truck & Equip., 552 P.2d 881 (Kan. 1976) (holding that evidence of an oral express warranty that a truck would run for three to four months without any work was inadmissible because the disclaimer of warranties was the final expression of the parties' agreement).

(35) Hillman & Rachlinski, supra note 3, at 478.

(36) Robert A. Hillman, Online Consumer Standard Form Contracting Practices: A Survey and Discussion of Legal Implications, in CONSUMER PROTECTION IN THE AGE OF THE "INFORMATION ECONOMY" 285 (2006) [hereinafter Hillman, Survey].

(37) Id. at 286-94.

(38) Id. The survey found that few respondents read their e-standard forms beyond price and description of the goods or services "as a general matter." Further, beyond price and description, a large minority of respondents do not read their forms at all. However, more than a third of the respondents read their forms when the value of the contract is high and more than a third read when the licensor is unknown. Further, a small cadre of respondents read particular terms beyond price and description, primarily warranties and product information warning. Id.

The survey also illustrates that impatience accounts most often for the failure of respondents to read their forms. Not surprisingly, therefore, the survey also reveals that respondents rarely shop for advantageous terms, despite their greater availability on the Internet. Id.

(39) See supra note 9, reciting the duty-to-read rule.

(40) See supra note 8 and accompanying text.

(41) For a recent judicial defense of form contracts, see IFC Credit Corp. v. United Bus. & Indus. Credit Union, 512 F.3d 989,992-93 (7th Cir. 2008) (Easterbrook, C.J.):
   Ever since Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585,
   111 S.Ct. 1522, 113 L.Ed.2d 622 (1991), enforced a forum-selection
   clause printed in tiny type on the back of a cruise-ship
   ticket, it has been hard to find decisions holding terms invalid on
   the ground that something is wrong with non-negotiable terms in
   form contracts.... As long as the market is competitive, sellers
   must adopt terms that buyers find acceptable; onerous terms just
   lead to lower prices .... If buyers prefer juries, then an
   agreement waiving a jury comes with a lower price to
   compensate buyers for the loss--though if bench trials reduce
   the cost of litigation, then sellers may be better off even at the
   lower price, for they may save more in legal expenses than they
   forego in receipts from customers.

   There is no difference in principle between the content of a
   seller's form contract and the content of that seller's products.
   The judiciary does not monitor the content of the products,
   demanding that a telecom switch provide 50 circuits even though
   the seller promised (and delivered) 40 circuits. It does not matter
   that the seller's offer was non-negotiable (if, say, it offered
   40-circuit boxes and 100-circuit boxes, but nothing in between);
   just so with procedural clauses, such as jury waivers. As long as
   the price is negotiable and the customer may shop elsewhere,
   consumer protection comes from competition rather than judicial
   intervention. Making the institution of contract unreliable by
   trying to adjust matters ex post in favor of the weaker party will
   just make weaker parties worse off in the long run.


For recent defenses of boilerplate in the law reviews, see, for example, Lucian A. Bebchuk & Richard Posner, One-Sided Contracts in Competitive Consumer Markets, 104 MICH. L. REV. 827 (2006); and Jason S. Johnston, The Return of Bargain: An Economic Theory of How Standard-Form Contracts Enable Cooperative Negotiation Between Businesses and Consumers, 104 MICH. L. REV. 857 (2006).

(42) See supra notes 15-30 and accompanying text; see also Appendix 1. For another example, Intuit's Quicken 2008 software (number 75) states that "Quicken can now import your transaction data directly from PayPal." Quicken Deluxe[R] Software: What's New in 2008, http://quicken.intuit.com/ personalfinance/deluxe-money-management.jsp (last visited June 16, 2008). The EULA "disclaim[s] all guarantees and warranties, whether express, implied, or statutory, regarding the software...." Quicken 2008 End User License Agreement, http://help.quicken.com/support/eula/eula_qw2008/(last visited Nov. 24, 2008). The EULA does include a "satisfaction guaranteed" term, but see supra note 21.

(43) See ALI PRINCIPLES, supra note 1, at 155 n.23. See also Larry Magid, It Pays to Read License Agreements, http://www.pcpitstop.com/spycheck/eula.asp (last visited Dec. 12, 2008); Annalee Newitz, Dangerous Terms, A User's Guide to EULAs, Electronic Frontier Foundation, http://www.eff.org/wp/ dangerous-terms-users-guide-eulas (last visited Dec. 12, 2008). Butsee Ronald J. Mann & Travis Siebeneicher, Just One Click. The Reality of Internet Retail Contracting, 108 COLUM. L. REV. 984 (2008).

(44) See ALI PRINCIPLES, supra note 1, [section] 1.11 cmt. c.

(45) See Alan Schwartz & Louis L. Wilde, Imperfect Information in Markets for Contract Terms: The Examples o[ Warranties and Security Interests, 69 VA. L. REV. 1387, 1409 (1983).

(46) See Hillman & Rachlinski, supra note 3, at 469-70 & n.222; Avery Katz, Standard Form Contracts, in 3 NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW 505 (Peter Newman ed., 1998) ("If reputational concerns lead drafters of forms to moderate their opportunism, regulation may be largely unnecessary.").

(47) See, e.g., Hillman & Rachlinski, supra note 3, at 443; ALI PRINCIPLES, supra note 1, [section] 2.02 cmt. h.

(48) Hillman & Rachlinski, supra note 3, at 472

(49) Id. at 481-82; Hillman, Survey, supra note 36, at 290-92.

(50) Express warranties "must be objective in nature, i.e., verifiable or capable of being proven true or false." Boud v. SDNCO, Inc., 54 P.3d 1131, 1135 (Utah 2002). See supra notes 16-26 and accompanying text.

(51) See infra, Appendix.

(52) The ALI sought to promulgate the Principles of the Law of Software Contracts to govern software transactions directly. See ALI PRINCIPLES, supra note 1, at 22-23. The UCC's "basis of the bargain" test for determining the existence of an express warranty has caused confusion over precisely what the test means. Id. [section] 3.02, cmt. b. The ALI Principles have therefore adopted a new test based on whether a copyholder could reasonably rely on the words or conduct, a test based on the UCC commentary explaining the meaning of "basis of the bargain." Id.

(53) See, e.g., id. [section] 3.08.

(54) See id. [section] 3.02, illus. 1.

(55) See, e.g., Eskimo Pie Corp. v. Whitelawn Dairies, Inc., 284 F. Supp. 987, 991 (S.D.N.Y. 1968) (course of performance, usage of trade, course of dealing); Mitchill v. Lath, 160 N.E. 646, 647 (N.Y. 1928) ("[A]n inspection of the written contract, read in the light of surrounding circumstances, must not indicate that the writing appears to contain the engagements of the parties, and to define the object and measure the extent of such engagement.") (internal quotations omitted); Johnson Bldg. Co. v. River Bluff Dev. Co., 374 N.W.2d 187, 193 (Minn. App. 1985) ("The parol evidence rule is inapplicable to exclude evidence of fraudulent oral representations by one party which induce another to enter into a written contract.").

Determining what constitutes "the record" that the parties intend to be complete constitutes a fourth potential exception. If the fully-integrated record includes promises and representations made on the website, then there is no parol evidence issue, only one of interpretation of the conflicting terms.

(56) Harrison v. Fred S. James, P.A., inc., 558 F.Supp. 438,442 (E.D.Pa 1983).

(57) See, e.g., Rumsfeld v. Freedom NY, 329 F.3d 1320, 1328-29 (Fed. Cir. 2003)

("Like 'most courts' we elect to follow the 'traditional rule'.., namely that an integration clause 'conclusively establishes that the integration is total unless (a) the document is obviously incomplete or (b) the merger clause was included as a result of fraud or mistake or any other reason to set aside the contract." (quoting Calamari & Perillo, supra note 9, [section] 3.4(c)); Johnson Bldg. Co., 374 N.W.2d at 193 ("The fact that the purchase agreement contained a 'full integration' clause does not alter our conclusion that the trial court properly admitted parol evidence. A 'full integration' clause does not prevent proof of fraudulent representations by a party to the contract.").

(58) See U.C.C. [section] 2-207; Douglas G. Baird & Robert Weisberg, Rules, Standards, and the Battle o/the Forms: A Reassessment of [section] 2-207, 68 VA. L. REV. 1217 (1982).

(59) A fraudulent misrepresentation occurs if a party knows that the representation is false or the party makes the representation recklessly, with the intention of inducing the other party to rely, which the other party does. Gibb v. Citicorp Mortgage, Inc., 518 N.W.2d 910, 916 (Neb. 1994).

(60) A fraudulent concealment occurs if a party conceals a material fact that is not within the reasonable observation of the other party in order to mislead that party. Gibb, 518 N.W.2d at 916.

(61) See, e.g., Eskimo Pie Corp. v. Whitelawn Dairies, Inc., 284 F. Supp. 987, 991 (S.D.N.Y. 1968).

(62) The UCC proclaims that express terms trump course of dealing, but directs courts to construe them consistently if possible. See U.C.C. [section] 1-303(e)(1) (2001).

(63) Id.

(64) ALI PRINCIPLES, supra note 1, [section] 3.08 provides:

Integration and Parol Evidence

(a) A full integration constitutes a record or records intended by the parties as a complete and exclusive statement of the terms of an agreement. A partial integration constitutes a record or records intended by the parties as the complete and exclusive statement of one or more terms of an agreement.

(b) The court should determine whether a record is fully integrated, partially integrated, or not integrated prior to applying subsections (e) and (f). In making this determination, the court should consider all credible and relevant extrinsic evidence, including evidence of agreements and negotiations prior to or contemporaneous with the adoption of the record.

(c) If the transfer is a standard-form transfer of generally-available software, a term in a record indicating that the record is fully integrated or partially integrated should be probative but not conclusive on the issue.

(d) The court should determine whether a term in a record is ambiguous prior to applying subsections (e) and (f). In making this determination, the court should consider all credible and relevant extrinsic evidence, including agreements and negotiations prior to or contemporaneous with the adoption of the record, if a term or terms is ambiguous, extrinsic evidence is admissible to prove the meaning of the term or terms.

(e) Unambiguous terms set forth in a fully integrated record may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement, but may be explained by course of performance, course of dealing, or usage of trade.

(f) Unambiguous terms set forth in a partially integrated record may not be contradicted by evidence of conflicting terms, but may be explained by evidence of course of performance, course of dealing, usage of trade, or consistent additional terms.

(g) Notwithstanding subsections (e) and (f),

(1) evidence is admissible to prove

(A) illegality, fraud, duress, mistake, or other invalidating causes; and

(B) independent agreements; and

(2) evidence of course of performance, course of dealing, and usage of trade is admissible to supplement a record.

(65) Id. [section] 3.08(c).

(66) See supra note 6 and accompanying text.

(67) See supra notes 16-26 and accompanying text.

(68) Section 2-316 directs courts to interpret language or conduct creating warranties and language or conduct negating them as "consistent" unless unreasonable: "Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other ... negation or limitation is inoperative to the extent that such construction is unreasonable." See Ajay Ayyappan, UCITA: Uniformity at the Price of Fairness ?, 69 FORDHAM L. REV. 2471,2478-85 (2001).

(69) See ALI PRINCIPLES, Supra note 1, [section] 3.06, cmt. a, and cases cited therein.

(70) See ALL PRINCIPLES, Supra note 1, [section] 3.06(a).

(71) Emphasis added. The ALI Principles follow this comment in [section] 3.06, but omit the superfluous "unbargained" language.

(72) Hillman, supra note 8, at 755. This relied on Karl Llewellyn, The Common Law Tradition: Deciding Appeals 370 (1960). See also K.N. Llewellyn, Book Review, 52 HARV. L. REV. 700, 704 (1939) (reviewing O. PRAUSNITZ, THE STANDARDIZATION OF COMMERCIAL CONTRACTS IN ENGLISH AND CONTINENTAL LAW (1937)) (asserting that the presumption of assent does not apply to "utterly unreasonable clauses").

(73) "[D]ifficulties arise in determining when a contracting party has sufficient information about the contract subject matter or future course of events affecting the value of the contract subject matter for a conclusion to be sustained that the choices in question were autonomous. Although contracting choices made with false information or in the absence of highly material information may, at one level, be regarded as non-autonomous, at another level the decision to forgo opportunities to acquire further information may itself be an autonomous choice." Michael Trebilcock, THE LIMITS OF FREEDOM OF CONTRACT 242 (1993).

(74) ALI PRINCIPLES, supra note 1, [section] 2.02. Our data reveals that 34% of the Top 100 titles did not make their EULAs available before a consumer engaged in a transaction. See supra notes 11-12 and accompanying text.

(75) Certain warranty disclaimers must be conspicuous under Article 2 of the UCC. See, e.g., U.C.C. [section] 2-316 (1998).

(76) For a discussion of clickwrap and browsewrap forms of acceptance, see ALI PRINCIPLES, supra note 1, [section] 2.01, cmt. b; id. [section] 2.02, cmt. b; and id. at 150-56.

(77) See Federal Trade Commission, Frequently Asked Advertising Questions: A Guide for Small Business, http://www.ftc.gov/bcp/edu/pubs/business/ adv/bus35.shtm (last visited Nov. 24, 2008).

(78) Robert A. Hillman, Online Boilerplate: Would Mandatory Website Disclosure of E-Standard Terms Backfire?, 104 MICH. L. REV. 837, 851 (2006) (discussing Junghyun Kim & Robert La Rose, Interactive E-Commerce: Promoting Consumer Efficiency or Impulsivity?, 10 J. OF COMPUTER-M EDIATED COMM. (Nov. 2004), available at http://jcmc.indiana.edu/vo110/issue1/kim_larose.html).

(79) Kim & LaRose, supra note 78.

(80) Id.

(81) Id. (citing Dennis W. Rook & Robert J. Fisher, Normative Influences in Impulsive Buying Behavior, 22 J. OF CONSUMER RES. 305-13 (1995)).

(82) Id. See also Xiaoni Shang, Victor R. Prybutok, & Chang E. Koh, The Role of Impulsiveness in a TAM-Based Online Purchasing Behavior Model, in INNOVATIVE TECHNOLOGIES FOR INFORMATION RESOURCE MANAGEMENT 334, 335 (Mehdi Khosrow-Pour ed., 2008) ("he development of the digital economy makes impulsive purchasing even more convenient and pervasive.... Online vendors are convinced that a substantial portion of their sales is attributed to impulse purchases .... Impulsive purchasing is bound to increase as the Internet makes it easier for consumers to access a wide range of brands and to compare different products without ever leaving home.").

(83) Kim and LaRose, supra note 78.

(84) Id.

(85) See Miriam J. Metzger, Privacy Trust, and Disclosure: Exploring Barriers to Electronic Commerce, 9 J. COMPUTER-MEDIATED COMM. (July 2004), available at http://jcmc.indiana.edu/vol9/issue4/metzger.html ("Web sites of respected organizations that were visually pleasing were rated high in trustworthiness and expertise.").

(86) Kim & LaRose, supra note 78 (citing Sharon E. Beatty & M. Elizabeth Ferrell, Impulse Buying: Modeling Its Precursors, 74 J. OF RETAILING 169 (1998)).

(87) The more formalities and processes required to make a commitment, the more likely a party will be cautioned about the seriousness of what she is doing. See Lon L. Fuller, Consideration and Form, 41 COLUM. L. REV. 799, 799-802 (1941).

(88) Hillman's survey of first-year law students reported that 15 out of 92 respondents read warranty terms. See Hillman, Survey, supra note 36, at 308 n.30. But see Chang-Hoan Cho, Jaewon Kang, & Hongsik John Cheon, Online Shopping Hesitation, 9 CYBERPSYCHOL. & BEHAVIOR 261 (2006).

(89) Hillman, supra note 78, at 853-55.

(90) See id.

(91) Analogous strategies in the paper world have not been very successful, in part

because consumers are unlikely to be riveted to attention by such formalities.

(92) See supra notes 16-17 and accompanying text.

(93) See supra text accompanying notes 39-41.
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