It comes as no surprise when you read a EULA to see it disclaims all warranties and excludes all damages. But one reader recently got to thinking about this in regards to the online backup services he was evaluating for purchase. Since backup vendors are in the reliability business, would the good ones perhaps be less prone to disclaiming all responsibility? "I'm discouraged that the there is virtually no recogn It comes as no surprise when you read a EULA to see it disclaims all warranties and excludes all damages. But one reader recently got to thinking about this in regards to the online backup services he was evaluating for purchase. Since backup vendors are in the reliability business, would the good ones perhaps be less prone to disclaiming all responsibility?“I’m discouraged that the there is virtually no recognition of EULAs as differentiators,” the reader wrote. “Consequently, companies have nothing to fear absolving themselves of responsibility for their products. This is perhaps a redundant complaint, but I was reminded of this situation in my recent search for an online backup service.”“Online backup services must be considered as a type of mission-critical application, even for non-business customers. The only reason that someone would pay for such a service is for the promise that the data will be there when it’s needed, typically as a last resort. The availability of data, in essence, completely defines the service itself. Yet, all of the online backup companies I surveyed expressly disclaim any responsibility for actually delivering on the service they claim to offer. What’s more, many of these companies also disavow any responsibility for keeping the customer’s data secure.” The reader looked at the terms for five services: Mozy, Iron Mountain, Carbonite, Xdrive, and SOSonlinebackup. (SOSonlineback’s terms of service were not to be found on its website — always a bad sign — so the reader downloaded a trial version and examined the EULA from it.) There weren’t as many differentiators between the EULAs as he might have hoped.The reader found that all five disclaimed the warranty of merchantability, fitness for purpose, and all damages beyond price paid. All disavowed that the product had to actually function at all except Iron Mountain, which in its warranty promises to at least try to fix bugs, and only Iron Mountain doesn’t say the product is sold “as is.” Mozy, Iron Mountain, and SOS disavow damages even for negligence on their part. SOS and Xdrive disclaim responsibility for making sure their product is virus-free, and SOS also refuses to be responsible for any duty of good faith or reasonable care. (From what the reader sent me, in fact, it looks like the SOSonlinebackup EULA has some very original disclaimers, so we may have to take a look at it in more detail at a later date.)“Of these firms, Iron Mountain seems to have the least offensive policy,” the reader wrote. “But even they still limit damages and disclaim basic warranties, even for negligence. Sure, most software and services have similar disclaimers. But then again, most of the former are not marketed as failsafe services, there to catch you when you are most in need. Who would buy life insurance if the carrier’s terms of service has a clause that says that if you die, they have no real obligation to pay the claim? Of course, there can never be 100% guarantees. Disclaiming responsibility is at least understandable in cases of acts of God, or acts of war, or even unusual events that adversely affect Internet service. But these companies offer 0% guarantees.” After all, says the reader, any online backup service that doesn’t actually take responsibility for its customer data isn’t going to be in business very long. “It’s not as if these companies don’t need a reasonably robust and reliable service in order to survive. It wouldn’t take a high rate of complaints to sink one of these firms. So why not commit to such a level of service? And it’s not as if online backup is rocket science. The data is minimally processed. We’re not talking about an operating system or database. We’re talking about transmitting data over secure channels, and storing it securely at multiple locations.”If more people pay attention to what their EULAs say, perhaps the online backup services will differentiate their terms more. “Would it kill them to commit to good faith?” the reader wrote. “Or that their employees will exercise reasonable care for the security of our data? Are most these companies so unsure of their own competence that they need a safety net to protect them against gross negligence? Perhaps this is an outgrowth of a climate in which the public is stunned when politicians accept responsibility, or suffer consequences, for errors and misdeeds. Perhaps this is why these EULA terms are ignored in product reviews by publications such as PC Magazine.”As one of the few if not the only computer magazine editor who has ever tried to compare EULAs from different products, I can tell you it wouldn’t be easy for any publication to include license terms as part of their product reviews. But it would certainly be interesting to see how the EULAs in a product category might change if they were subjected to public scrutiny. Would it be worth the effort? I don’t know, frankly. Tell us what you think. Post your comments below, write me at Foster@gripe2ed.com or phone the Gripe Line voice mail at 1 888 875-7916.Read and post comments about this story here. Technology Industry