Please do not confuse ownership and/or licensing with anything.... What part of "I'm not a party to the EULA" do you not understand? Last I checked, in every state except Washington, the disclaimer for fitness of purpose has been overruled. The product conforms to the documented claims, or you have a cause of action. Also, there is no "comparitive" in this negligence. The driver is not responsible for design flaws in the car that killed the third party while unattended. As for the rest, I used to run a QA department, some years before drafting the appropriations language to fund a little thing called the "NSFnet".... I will affirmatively state that you know your analysis even less well than you know your law. Roeland Meyer wrote:
Please, do not confuse "governing law" and "jurisdiction" with applicability. With most commercial software, you don't own it. The actual owners retain full ownership rights. That makes a huge legal difference. BTW, MHSC shrink-wrap, and all other MHSC contracts, are under Delaware law, with alternative jurisdiction in Colorado, and neither of the other two jurisdictions that you mention. It has to do with where the corporate home is. Further, lawyers make big bucks arguing "comparative negligence". None of us gets paid well enough to do so here. FWIW, almost all commercial software developers carry "Errors and Omissions" coverage, as a second-level backup to the lawyers.
That said and in most jurisdictions, the driver has primary responsibility. This is due to the fact that the driver has primary responsibility for maintenance and application. This is the primary reason for the "fitness of purpose" clause.
-- William Allen Simpson Key fingerprint = 17 40 5E 67 15 6F 31 26 DD 0D B9 9B 6A 15 2C 32