Moving the discussion related to the limitation of liability here:
Agreed, but disclaimers come last. We need to see what tasks we’re taking on before we can write an effective disclaimer. Otherwise we’ll end up with something that makes things worse, not better (because if something is not clearly excluded when something else is, the inference is that we accept liability).
That’s why liability clauses need to be broad and cover everything, including things you didn’t think about at the time of writing liability clause. Liability clauses are designed to limit liability from everything and anything. Here’s an example from one of our agreements:
LIMITATION OF LIABILITY
IN NO EVENT WILL PARENT OR SERVICE PROVIDERS OR CONTRACTORS OR THIRD PARTY BENEFICIARIES BE LIABLE TO THE CUSTOMER FOR ANY LOSS OF REGISTRATION AND USE OF DOMAIN NAME, OR FOR INTERRUPTIONS OF BUSINESS, OR ANY SPECIAL, INDIRECT, ANCILLARY, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF PARENT AND/OR ITS SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
PARENT FURTHER DISCLAIMS ANY AND ALL LOSS OR LIABILITY RESULTING FROM, BUT NOT LIMITED TO:
(1) LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF AUTHENTICATION INFORMATION;
(2) LOSS OR LIABILITY RESULTING FROM FORCE MAJEURE EVENTS;
(3) LOSS OR LIABILITY RESULTING FROM ACCESS DELAYS OR ACCESS INTERRUPTIONS;
(4) LOSS OR LIABILITY RESULTING FROM NON-DELIVERY OF DATA OR DATA MISS-DELIVERY;
(5) LOSS OR LIABILITY RESULTING FROM ERRORS, OMISSIONS, OR MISSTATEMENTS IN ANY AND ALL INFORMATION OR PARENT PRODUCT(S) PROVIDED UNDER THIS AGREEMENT;
(6) LOSS OR LIABILITY RESULTING FROM THE INTERRUPTION OF SERVICE.
I bolded last part in the paragraph as it is relevant to this discussion, especially the part of taking plugin down for whatever reason and/or re-assigning ownership of plugins.
Again, this is just a suggestion. WordPress doesn’t include it, and they’ve been fine. But they also don’t plan on re-assigning ownership of abandoned plugins and such. That opens up a whole new avenue for lawsuits.
Just my 2 cents.
I understand the point you’re making, but that phrase illustrates my point precisely. What else is the disclaimer supposed to cover? In English-speaking jurisdictions at least, it opens a hornet’s nest of problems.
That’s included specifically to protect from what’s not on the list. Of course you want to include the main items, but you’re not limited to them when push comes to shove.
But that’s precisely what it won’t do in English-speaking jurisdictions. That’s the trouble with providing a specific list. Attempts to say “this also covers anything we’ve overlooked” just don’t wash.
In the end, it is really up to the court to decide if limited liability clause is enforceable or not. In the US, there are cases where courts upheld limited liability clauses even though they were found to be unconscionable (unreasonably excessive). Here’s one example.
It used similar wording to what I quoted:
“LIMIT OF LIABILITY: It is understood and agreed that should Palmetto and/or its
agents or employees be found liable for any loss or damages resulting from a
failure to perform any of it’s obligations, including but not limited to negligence,
breach of contract or otherwise, the the liability of Palmetto and/or it’s
agents or employees shall be limited to a sum equal to the amount of the fee paid
by the client for this inspection and report.
Either way. I hope the committee will consider adding liability clause it deems appropriate. Thanks.
We weren’t discussing whether it’s possible to disclaim liability where unconscionable. We were discussing what is covered (if anything) when a notice provides a list and then purports to cover stuff not on that list. As I said, that opens a hornet’s nest, because what precisely that means is then all over the place, depending on the jurisdiction. There’s no point drafting contract terms that cause more confusion than they resolve.
Which is why, as I said before, we work out what tasks we’re dealing with first, and then we consider how to draft any exclusions or disclaimers.
I think this is one where proper legal advice would need to be taken to ensure it is valid.
Yes, I was thinking the same thing. The IANAL* disclaimer kept coming to mind.
(*I Am Not A Lawyer)
My two cents here…
First we need to have rules in place, then we need to workout the liability limitations coming from them, then we need a proper lawyer to word them for us in a coherent way.
IANAL is not the way to go, neither is the “we are not liable also for what we forgot to mention or what we weren’t able to foresee”. We MUST set rules first, and decide which future such rules are most likely to shape (better wording: we should decide what future we want and set rules shaping it the way we see it - ruling on plugin ownership are an example of that, since wp plugin repo is a mess, we are drafting rules avoiding this outcome). And be specific on this.
Or else we may be considered liable for everything for lack of specificity.
Sorry, I wasn’t saying that CP should adopt that approach. It was more a general comment about the limitations of people debating legal issues who don’t have any legal training. It’s only ever going to be guesswork. I agree for this sort of stuff you need a proper lawyer.
Sorry if my wording was unclear. What I meant is I agree with you about a non professional approach to legal matters. Reading the thread it seemed to me that was one point left behind.
Moreover, I know we can’t predict everything but I wanted to outline rules serve the purpose of guiding things our way and aren’t meant to cover one’s back. Just because the presence of a certain rule direct how future is able to evolve. The more our rules are clear and precise the more the outcome we want is going to be obtainable.
One of us on here IS a lawyer!
Excellent! Could that person put IAAL after all their posts.
Spoiler: it’s Tim.
3 posts were split to a new topic: Forking and re-releasing plugins