In the case of consumers, certain clauses restricting consumer remedies would be unlawful due to legislation protecting consumers in any event.
This includes removing implied terms like the implied term to exercise reasonable care and skill in the provision of a service. A consumer could argue that a developer has failed in this duty if they provide software which had an avoidable defect. As the article identifies, the problem is it would be a difficult process to identify what is truly avoidable. Due to the complexity of software and the ingenuity of hackers (for want of a better word) certain flaws will always be present. There is also the issue of contributory factors like the user's own failings in updating etc.
In reality, I think the main barrier to consumers bringing an action would be the cost and expense of litigation, not necessarily the terms of a EULA.
Comments
In the case of consumers, certain clauses restricting consumer remedies would be unlawful due to legislation protecting consumers in any event.
This includes removing implied terms like the implied term to exercise reasonable care and skill in the provision of a service. A consumer could argue that a developer has failed in this duty if they provide software which had an avoidable defect. As the article identifies, the problem is it would be a difficult process to identify what is truly avoidable. Due to the complexity of software and the ingenuity of hackers (for want of a better word) certain flaws will always be present. There is also the issue of contributory factors like the user's own failings in updating etc.
In reality, I think the main barrier to consumers bringing an action would be the cost and expense of litigation, not necessarily the terms of a EULA.