business law assignment

Introduction:

Law provides protection in the individual life and corporate sector because without having legal

binding it will be difficult for any individual to pass their lives without any ambiguity and fear of

injustice (Khoury, 2007). Therefore, it is necessary to use law where it essential to avoid any

mis-presentation or compulsion. For this contract and agreements come into action for an

individual or for organizations as well. Contract and agreements comes under the legal binding

and it can be reached between two or more then individuals with the mutual understanding.

Written conditions and terms enable the each other parties to perform the agreed task on time

otherwise legal action can be taken by the either party or get the penalty through agreed terms

and condition (Coleman, 2001). The difference between contract and agreement is minor;

contract is more form then the agreement because it does not include such clauses that are out

of the legal binding. Contracts and agreements are being agreed between two parties. The

contract is a legal entity and can be enforced by the court of law (Matthews Groves, 2005).

Therefore, in the corporate sector contract is being used to set the condition for both parties.

In this essay, author has selected the Intel License agreement which include different sections

and terms. The agreements present about the different condition under the usage of software

only on the Intel devices. This essay will extract the terms that is being used as the legal

language need to be explained in a simple language.

i) Use of term in the agreement mentioned below:

EXCEPT AS PROVIDED ABOVE, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY EXPRESS OR

IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY,

NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. Intel does not warrant or

assume responsibility for the accuracy or completeness of any information, text, graphics, links

or other items contained within the Software.

Source: Extracted from Intel Lincense Agreement (Appendix – A)

1) Warranty (meaning): Written promise about the sale product

Warranty (definition): it is a promise from the seller about the product if it is

damaged then it will be replaced or repair whichever is possible in a certain time

frame (Carter, 2011). For example; Television Manufacturer Company offers one

year warranty after the sale to the buyer.

2) Merchantability (meaning): ready to be sold or purchase

Merchantability (definition): The product should be ready for the market and meet

the quality standard as per the given rule (Peter, 2010). For example; Soap

manufacturer company products are merchantable if it is as per the quality and did

not harm others.

3) Non-infringement (meaning): non-validate, not exceeding the limits

Non-infringement (definition): It refers to the original work which is being produced

by the inventor and no one else uses it or copies it. In other words, the product is

not for all (Catharine, 2010). For example; software are being produced and only

software developer is entitled to give to others, it cannot be used or purchased

without permission.

ii) Using other terms to explain:

No rights or licenses are granted by Intel to You, expressly or by implication, with respect to any

proprietary information or patent, copyright, mask work, trademark, trade secret, or other

intellectual property right owned or controlled by Intel, except as expressly provided in this

Agreement. You may not reverse engineer, decompile, or disassemble the Software. This

Software is licensed for use only in conjunction with Intel component products.

Source: Extracted from Intel Lincense Agreement (Appendix – A)

1) Intellectual property (meaning): creativity from mind, invention

Intellectual property (definition): The inventions that are being created by human

brain which are pertain to a person such as Windows, Software and others (James

Allop, 2011).

2) Decompile (meaning): recollect, compose, re-arrange

Decompile (definition): It is used as a term of compiling the invention into different

way by working on it (Barak, 2005). For example; using Java source code to develop

different application.

3) Conjunction (meaning): Coincidence, simultaneity

Conjunction (definition): Different events happen at the same time. For example;

political and economic stability benefit the entrepreneurs (Khoury, 2007).

iii) Six terms selected from the agreements with explanation:

The selected six terms are as follows:

1) Warranty,

2) Merchantability,

3) Non infringement,

4) Intellectual property,

5) Decompile

6) Conjunction.

Warranty: Warranty is the condition in the agreement. The selection of this word as a term is

that in software warranty is the most important aspect of delivering the best quality after sale if

the problem or issues exist in enabling the software then the buyer will be facing problem in

fixing it (Coleman, 2001). So, it is the responsibility of the seller to provide after sales services to

ensure quality of their services should be standardized.

Issue in the term is that if the seller is failing to provide the warranty in the case of damage or

others ways then the agreement will be breached. Rule about this suggest that it comes under

the condition in the contract as per the law if the warranty is not being fulfilled then the law will

be breach and seller has to face the legal implications (Carter, 2011). Poussard v Spiers and

Pond [1876] 1 QBD 410 in which breach of contract is being found that was breaching the

condition of the agreement. Application of the law about the warranty suggests that seller has

to fulfill the obligation by providing the after sales services whether it is repair or replacement

of product to the other party. It is concluded that warranty is used as a term because it is

having significance in the said agreement and seller is liable and according to the law warranty

should be given about the product and give the services after sales if necessary (Peter, 2010).

Merchantability: Merchantability is the second term which is selected from the agreement and

it is also a condition in this context. The suggests if the software is not ready for the sale then

buyer cannot sell the product to the buyer and if it does then agreement will be breached and

can be sued in the court of law (Catharine, 2010). So, it is important from the seller aspect that

product should be merchantable which will give the maximum benefit to the buyer rather than

facing the problem after using it.

Issue in the term of merchantability is that it is highly sensitive due to the nature of the contract

or agreement along with product that should be produced on the basis of given quality and

standard in the market. Rule suggests that product should maintain the standard production

procedure and include complete features which come under the category of finished product

(Matthew Groves, 2005). Bettini v Gye [1876] 1 QB 183, singer was hired and clearly disclosed

that two week did not allow to sing in other programs but singer did not abide the condition

and it was found the breach of the condition. Application is the seller should ensure that

product is merchantable after meeting the every criterion of production and ready to sell. It is

concluded that seller is liable according to the agreement that product is merchantable for the

market and buyer will not face any issues after buying it (Barak, 2005).

Non Infringement: This term is the third term selected from the agreement and it comes under

the warranty; which suggest that agreement cannot be breached only the offender has to pay

the penalty and there will be no need of re-design the contract (James Allsop, 2011). The

importance of this term suggests that non infringement of the software does not allow any

other party to copy it or use it without permission. Therefore, buyer is liable to ensure the non

infringement should be secure and avoid the legal complication.

Issue in this term suggests that usually buyer give the product to other for the purpose of usage

which is against the contract of agreement and it can be penalized as per law. Rule suggests

that buyer is bound to abide the terms and conditions of the contract (Coleman, 2001). The

penalty should be imposed and buyer have to bear it along with this seller will be getting

compensation accordingly. Wills v Amber [1954] 1 Lloyd's Rep 253; the seller has sold the

product which was not having enough capability to live for long but the warranty was not

issued therefore, condition of the agreement was breached. Application of the rule suggests

that software in this scenario is important and should be used personally or at the corporate

level by abiding the contract condition and terms (Barak, 2005). It is concluded that non

infringement cannot be possible due to the software rights are being reserved for the inventor.

Intellectual Property: This is the fourth term selected from the contract. This term comes under

the warranty category. The concept of this term is that software or any other product which is

being invented through mind is the property of the investor and others are not allowed to use it

or take benefit from until and unless inventor sell or lend to others (Khoury, 2007). So,

intellectual property can be secured by the patent, trademark and other ways. As per the

selected contract software is the intellectual property of the Intel that are allowed to sell their

product to the buyer other parties cannot access it without taking the license.

Issue in this term is evident that intellectual property cannot be taken by any means even by

the buyer because it is against the contract therefore, it comes under the warranty. Rule of the

law suggest that intellectual property is the responsibility of the inventor and other cannot

access it without permission (Catharine, 2010). Schuler AG v Wickman Machine Tool Sales Ltd

[1974] AC 235, the product was not good enough for the buyer to purchase but warranty was

given about the product and it is being claimed the damage according to the case of law.

Application of the law suggests that buyer is also entitled to secure the intellectual property

rights and maintain the contract terms and conditions. It is concluded that intellectual property

is the inventor right and buyer should abide the law by using the product under license (Carter,

2011).

Decompile: This term is the fifth term selected from the contract because it is having its

significance in the agreement which suggests that software are having source code from which

software can be modified and can be developed different programs after further processing it

or adding the application in to it. So, therefore, this comes under the condition of the

agreement category (James Allsop, 2011). So decompile is not being allowed according to the

agreement and it is strictly restricted to use it for the further compilation.

Issue in this term is that de-compilation can be done by using the key of the software and other

programs can be developed in no time. Rule suggests that it is a breach of the contract or using

it in different ways by decompiling the features and produce the other product. Application of

the rule suggests that it will be a breach of contract and seller can claim the damage to the

reputation which is being caused due to the decompiling the product (Peter, 2010). It is

concluded that de-compilation is not acceptable and it will be breaching the contracts and can

be challenged in the court of law.

Conjunction: This is the sixth term which is selected from the contract. This term comes under

the condition rather than warranty because if the software is used on the other Intel product

than it will give the result and cannot be used on the other application or products. Therefore,

conjunction can be possible if the buyer uses the product only on the Intel products.

Issue in this term suggests that it cannot be possible that Intel software is being used on the

other program if the buyer breaches the contract will be terminated (Matthew Groves, 2005).

Rule suggests that condition s being applied to it is important for the buyer to consider the

given restriction and avoid the usage of the product on the other manufacturer products.

Application is that buyer is liable to maintain the condition of the agreement in order to

continue the contract with the organization (Carter, 2011). It is concluded that conjunction is

possible if the software is being used only on the Intel products.

References:

Barak A, (2005). Purposive Interpretation in Law (Princeton University Press).

Coleman J, (2001). The Practice of Principle: In Defence of a Pragmatist Approach to Legal

Theory (OUP).

Catharine MacMillan, (2010). Mistakes in Contract Law. 2nd Edition. Hart Publishing, 2010, 38

Khoury, D and Y Yamouni, (2007). Understanding Contract Law 7th ed,. LexisNexis, press Russia.

James Allsop, (2011). ‘Good Faith and Australian Contract Law: A Practical Issue and a Question

of Theory and Principle’ (2011) 85(6) Australian Law Review 341, 352.

J W Carter, (2011). Carter’s Guide to Australian Contract Law (LexisNexis, 2nd ed, 2011) 521.

Matthew Groves (2005), Law and Government in Australia . 9th Edition. Federation Press.

Peter Radan and John Gooley, (2010). Principles of Australian Contract Law (LexisNexis, 2nd ed,

2010) 489.

Appendix – A

INTEL SOFTWARE LICENSE AGREEMENT

IMPORTANT - READ BEFORE COPYING, INSTALLING OR USING

Do not use or load this software and any associated materials (collectively, the "Software") until you have carefully read the following terms and conditions. By loading or using the Software, you agree to the terms of this Agreement. If you do not wish to so agree, do not install or use the Software.

LICENSES:Please note:

If you are a network administrator, the "Site License" below shall apply to you. If you are an end user, the "Single User License" shall apply to you. If you are an original equipment manufacturer (OEM), the "OEM License" shall apply to you.

SITE LICENSE:You may copy the Software onto your organization's computers for your organization's use, and you may make a reasonable number of back-up copies of the Software, subject to these conditions:

1. This Software is licensed for use only in conjunction with Intel component products. Use of the Software in conjunction with non-Intel component products is not licensed hereunder.

2. You may not copy, modify, rent, sell, distribute or transfer any part of the Software except as provided in this Agreement, and you agree to prevent unauthorized copying of the Software.

3. You may not reverse engineer, decompile, or disassemble the Software.4. You may not sublicense or permit simultaneous use of the Software by more than one user.5. The Software may include portions offered on terms in addition to those set out here, as set out in a license

accompanying those portions.

SINGLE USER LICENSE:You may copy the Software onto a single computer for your personal, noncommercial use, and you may make one back-up copy of the Software, subject to these conditions:



3. You may not reverse engineer, decompile, or disassemble the Software.4. You may not sublicense or permit simultaneous use of the Software by more than one user.5. The Software may include portions offered on terms in addition to those set out here, as set out in a license

accompanying those portions.OEM LICENSE:You may reproduce and distribute the Software only as an integral part of or incorporated in Your product or as a standalone Software maintenance update for existing end users of Your products, excluding any other standalone products, subject to these conditions:



3. You may not reverse engineer, decompile, or disassemble the Software.4. You may only distribute the Software to your customers pursuant to a written license

agreement. Such license agreement may be a "break-the-seal" license agreement. At a minimum such license shall safeguard Intel's ownership rights to the Software.

5. The Software may include portions offered on terms in addition to those set out here, as set out in a license accompanying those portions.

NO OTHER RIGHTS:No rights or licenses are granted by Intel to You, expressly or by implication, with respect to any proprietary information or patent, copyright, mask work, trademark, trade secret, or other

intellectual property right owned or controlled by Intel, except as expressly provided in this Agreement.

OWNERSHIP OF SOFTWARE AND COPYRIGHTS:Title to all copies of the Software remains with Intel or its suppliers. The Software is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. You may not remove any copyright notices from the Software. Intel may make changes to the Software, or to items referenced therein, at any time without notice, but is not obligated to support or update the Software. Except as otherwise expressly provided, Intel grants no express or implied right under Intel patents, copyrights, trademarks, or other intellectual property rights. You may transfer the Software only if the recipient agrees to be fully bound by these terms and if you retain no copies of the Software.

LIMITED MEDIA WARRANTY:If the Software has been delivered by Intel on physical media, Intel warrants the media to be free from material physical defects for a period of ninety days after delivery by Intel. If such a defect is found, return the media to Intel for replacement or alternate delivery of the Software as Intel may select.

EXCLUSION OF OTHER WARRANTIES:EXCEPT AS PROVIDED ABOVE, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF

MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. Intel does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the Software.

LIMITATION OF LIABILITY:IN NO EVENT SHALL INTEL OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOST INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF INTEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS PROHIBIT EXCLUSION OR LIMITATION OF LIABILITY FOR IMPLIED WARRANTIES OR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

TERMINATION OF THIS AGREEMENT:Intel may terminate this Agreement at any time if you violate its terms. Upon termination, you will immediately destroy the Software or return all copies of the Software to Intel.

APPLICABLE LAWS:Claims arising under this Agreement shall be governed by the laws of California, excluding its principles of conflict of laws and the United Nations Convention on Contracts for the Sale of Goods. You may not export the Software in violation of applicable export laws and regulations. Intel is not obligated under any other agreements unless they are in writing and signed by an authorized representative of Intel.

GOVERNMENT RESTRICTED RIGHTS:The Software is provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the Government is subject to restrictions as set forth in FAR52.227-14 and DFAR252.227-7013 et seq. or its successor. Use of the Software by the Government constitutes acknowledgment of Intel's proprietary rights therein. Contractor or Manufacturer is Intel.

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