&quot;Lifetime Warranty&quot; terms and conditions changed after purchase Around four years ago I purchased a pair of William Painter sunglasses through a successful Kickstarter campaign. The campaign advertised a 'Lifetime Warranty', which they clarified in an FAQ on Kickstarter as follows: What are the details of the Lifetime Guarantee? At William Painter we back up the amazing quality of The Empire with an equally exceptional lifetime guarantee. Our Lifetime Manufacturer’s Warranty Covers the following: (You will receive a free brand new replacement pair with no time limit restrictions, but you must return your damaged item at your own shipping costs) Screws fall out Hinges break Breaking under the pressure of your badass life. Paint Chipping Lenses are warrantied if the following conditions occur: Breaking, popping out, or bubbling Lenses scratching in first 30 days Lifetime Manufacturer’s Warranty DOES NOT COVER the following: Does not cover lens scratching after 30 days Hinges becoming loose over time Lost Sunglasses If you lose your sunglasses or they get stolen, we still have your back! We know it sucks to be apart with your amazing William Painter sunglasses, so we'll hook you up a discount to replace your lost pair. (just show us your order number) Last updated: Wed, May 24 2017 1:49 AM AEST Two years ago I did have to go through the warranty process as the hinge had broken. It was no drama, and as outlined on the original Kickstarter all I had to do was organise and pay for return of the damaged glasses. This time when I started the warranty process I was immediately asked to pay around $70AUD in processing fees, in addition to covering the return shipping. Their website now shows the following regarding their warranty: LIFETIME WARRANTY We stand by our products and back them up with our William Painter lifetime guarantee. This means if you break them, shatter them, blow them up, or run them over with a semi-truck we still guarantee them for life. With a small processing and handling fee you receive a brand new pair every time! Don't get me wrong, I understand why they've changed it in the last two years... but is that legal? I purchased the sunglasses because of that fantastic warranty, and now the terms and conditions of it have changed after purchase.
It's not legal The terms that you agree when you enter a contract can only be changed if: the contract provides for variation of its terms and then, only in accordance with that procedure. This may allow unilateral changes - these are common in ongoing relationships like telephone and ISP contracts but it appears from the Kickstarter page that this was not the case here. the parties agree to vary the contract either by deed or by another contract. If by deed then the law of making deeds must be followed, if by contract then the laws of contract must be followed. You mention &quot;around $70AUD&quot; which leads me to guess that you are in Australia. If you were there when you entered the contract then the Australian Consumer Law will apply to the transaction and, more generally, to William Painter since they explicitly &quot;do business in&quot; Australia because they ship there. It is illegal to make misleading and deceptive claims under the ACL and the fines can be huge. Perhaps a note pointing this out to them and letting them know that if they waive their fees in you case(s), you wont feel the need to report them to the ACCC.
There is no &quot;normal&quot; or &quot;standard situation&quot;. The parties are free to negotiate whatever terms they like within any limitations imposed by law. If you're unhappy with the proposed terms then you should either negotiate to include a liability limitation clause, refuse to agree the NDA, or consider whether the benefits of signing it outweigh your concerns. If you are entering into the NDA as a consumer and with a trader, then in england-and-wales, you might have some protection from Section 62 of the Consumer Rights Act 2015 which provides: (1) An unfair term of a consumer contract is not binding on the consumer. (4) A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer. For example, a contract which imposes unlimited liability on a consumer, while capping the liability of the trader, could be unfair. This will very much depend on all the circumstances and what the contract as a whole says: (5) Whether a term is fair is to be determined — (a) taking into account the nature of the subject matter of the contract, and (b) by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends. A term also can't be assessed for fairness if it specifies the main subject matter of the contract (which arguably a liability clause in a NDA does) and the term is transparent and prominent (see Section 64). &quot;I also don't understand the following wording: ...breach of this Agreement may cause irreparable harm to XXXXXX. Therefore, in addition to any other remedies available to XXXXXX, XXXXXX may obtain injunctive relief in the event of any breach or alleged breach of this Agreement without proving actual damages.&quot; What this is saying is that, in addition to all the usual actions that the other party could take against you for breaching the NDA (e.g. suing you for damages in the event that they suffer a loss from your breach), they can also apply to a court for an injunction without needing to prove that your breach caused them any loss. An injunction in this case would be a court order requiring you to stop breaching the NDA (e.g. to stop divulging information subject to the NDA).
Yet I publicly wear shirts with copyrighted designs all the time. I'm unclear about this; do you mean T-shirts you have made yourself using copyrighted images or T-shirts you have bought? If the former then it is a prima facie breach and you could be sued by the copyright holder. You would probably not be as it would be impracticable. If the latter then there are 2 possibilities: The manufacturer/distributer/retailer chain all hold valid licences to put the image on a T-shirt and display it in the usual way so there is no breach involved. The manufacturer/distributer/retailer chain does not hold a valid licence in which case there is a breach and the copyright holder would target, say Wall-Mart rather than you. what about displaying ... works of art in my yard? Notwithstanding that it can be viewed from a public space, your yard is not public; therefore this is not public display.
Since you bought these online the Consumer Contract Regulations are going to be in effect here (if the price of the goods was over £42 anyway), (legislation) Where your cutting the tags off and wearing them outside for an hour comes into play is that would probably be considered &quot;excessive handling&quot; and they might be able to make a deduction from the amount of the refund. Your business can make a deduction from the value of the goods if you consider the customer has handled the goods excessively. You can’t deduct monies from the refund simply because the goods have been removed from the packaging or because the goods have been tried on or checked. In essence, distance selling purchasers are entitled to handle goods in the same way that they would in a normal retail store. That therefore includes touching the item or trying it on. Since no retail store is going to let you cut the tags from a pair of shoes and walk outside for an hour in them I'd say that test is probably met here. How much can they deduct? As the CCR puts it (emphasis mine): (9) If (in the case of a sales contract) the value of the goods is diminished by any amount as a result of handling of the goods by the consumer beyond what is necessary to establish the nature, characteristics and functioning of the goods, the trader may recover that amount from the consumer, up to the contract price. Which is likely where the &quot;saleable condition&quot; aspect is coming from - if they aren't in a condition where the retailer can sell them on they've essentially lost their full value. If the retailer makes returned goods available for sale on the site at reduced prices (like the &quot;Amazon warehouse&quot; deals) then a deduction of the difference in sale price between that and full retail is more likely.
Does a situation like this constitute breach of contract and/or a violation of advertising laws? No. There is not enough information that would lead to a finding of either. It is unclear how customers would be allegedly affected (if at all) by the release of a product at a different store, let alone where the goods or services at issue are digital and require no physical presence at a venue or premise. Except for very specific factual circumstances, a change of sales venue would hardly be cognizable as deceptive or unfair practice. Also, prior to purchasing or reserving a game, there is no contract between the public and the developer/supplier. Potential customers typically are not entitled to a specific performance by the developer. Even if [Phoenix Point] supporters' decision were provably based on the prospect of release at Steam, your description nowhere reflects that there was a mutually conscious exchange (or promise of an exchange) of considerations involving the parties' support of a game and the counterparty's release of the game at a specific venue. Absent that meeting of the minds, either party's reliance or expectation on the other is irrelevant. Generally speaking, the sole cruciality of either party's motives does not create legal obligations.
In the US, the author would be able to wind an infringement lawsuit against the re-publisher. Title 17, the US copyright law codified, grants the author the exclusive right to authorize republication, and does not require that a person use their real name. The argument "It was on the internet, it's in the public domain" is utterly without legal merit. The same goes for the assertion that a person loses his rights if he is uncontactable. The author has stated the terms of the license, so there isn't even a reasonable argument that the infringement is innocent (unknowing: "I thought it was with permission). There is no requirement that you have to allow a potential user to hassle you about the license terms. The one thing that is special regarding anonymous and pseudonymous works is that under 17 USC 302, "copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first". For a work whose author is identified, copyright "endures for a term consisting of the life of the author and 70 years after the author’s death". This assumes that the host site has not preempted author's license: Stack Exchange, for example, preempts an author's exclusive right, so you can copy stuff from here accorting to the SE terms of usage.
Your app is a simple case of copyright infringement. All the Pokémon are copyrighted, the lettering and names are also protect by trademarks. Trying to claim fair use will be outright impossible: you'll use huge portions of the individually protected Pokemon (the iconic ones like Pikachu) and you are usurping a market they are already in. They have given licenses for apps (Pokemon Go). Pokemon are artistic and some form of fiction. The last straw might be if you'd do a rather obvious parody, but even then, I see no way to show Fair Use with what you stated. No disclaimer can change that, and publishing your work might open you to a huge lawsuit with damages for each individually protected Pokemon you infringed on. With between 750 $ minimum and 150,000 $ absolute upper limit per infringed item (last is for willful infringement), you don't want to infringe on Pokemon, as you could be very easily liable for a number in the 6 to 9 digits! Even if Nintendo might only try to get the statutory damages for all the 900 Pokémon, that is a number of at least 675,4000 $. And that's before looking at Trademarks. Pikachu has about 6 live word marks and there are 111 different Pokémon trademarks filed (some expired or dead)!
Statutes of limitations (hereinafter "SOL") vary from jurisdiction-to-jurisdiction. If it is only one-year in New York (I've not confirmed this) that would not be surprising. SOLs exist for all civil matters and nearly all criminal matters. I'd just like to point out that your question is not really limited to defamation or to the time frame for which the specific SOL runs for libel/slander ... at least as I've read it. It seems you are asking the broader question pertaining to what the philosophical or practical purpose(s) for SOLs in general are, as well as what effect these limits can have on the ability of a would-be claimant/plaintiff to get relief through the courts. So, to answer whether a person who believes they've been defamed can still bring a cause of action after the SOL has passed: the short answer is no. But, that is only the short answer. SOL is an affirmative defense, meaning that it can only be asserted if it is pled in the answer to a complaint. So, if John Doe feels he's been defamed by a libelous statement in the Times, and he files suit 4 years after the statement was made (and the SOL is 1 year), the court will still accept the filing of the complaint and Times must still be served. You do not lose the right to file your claim, when the SOL has passed, which is a very common misconception of the law. And, Times must still file an Answer to avoid defaulting. However, in that answer Times (no doubt by and through qualified counsel) will most likely assert a variety of affirmative defenses pro forma, which will include the passage of SOL (the claim is stale). If, in fact, the SOL has passed and the affirmative defense is pled, the next thing the Times will do is file a motion to dismiss. The judge will view the complaint in a light most favorable to Doe, the plaintiff, which will lay out all the facts (including when the libelous statement was published). If the cause of action accrued (this just means when the injury was sustained) and the claim was not filed prior to the expiration of the SOL, Doe's case will be dismissed. If the Times does not assert SOL though, it is deemed to have been waived for that and any subsequent related proceedings. There are ways to toll (extend) the statute of limitations. There is a discovery rule (this does not mean Doe didn't read it until after the SOL, even though he was able to). It means that the SOL can be tolled in cases where one could not have discovered the tort occurred. In these instances, the SOL doesn't begin to run until the discovery was either made or should have been made. This is most typically seen in medical malpractice cases (e.g., a surgeon leaves a sponge or instrument in your abdomen, and after years of failed treatments for IBS your doc sends you for an x-ray and an MRI and it's discovered) or in asbestos cases (you don't know you breathed it until you have asbestosis) &ndash; those types of scenarios. In cases like that, the SOL begins to run when you find out the tort occurred. This has also been successful in recovered memory cases where childhood sexual abuse occurred but was suppressed. Incapacitation is another way the SOL can be tolled. So, in Doe's libel case, the SOL can be tolled if he is incapacitated (in a coma and didn't wake for 4 years, in a mental hospital in a break from reality for 5 years) &ndash; in such circumstances you can still file a claim and have it survive a motion to dismiss based on SOL once you are rehabilitated. Also, Absence due to military service is reason to toll in some jurisdictions. Lastly, (at least the last one I can recall) is that minors can often toll the SOL however long the statute is (say 1 year) after they turn 18. As for why there are SOLs: That is more public policy than anything else. It is one of the oldest rules of law known to modern man, dating back all the way to early Greek and Roman law. Statutes of limitations are a fundamental part of EU and US law, as well as most other modern legal systems. They function to prevent fraudulent and stale claims from arising after all evidence has been lost or after the facts have become dubious and unclear due to the progression of time, which can lead to lost or uncertain memories, death of witnesses (for each side), or disappearance/inability to locate witnesses. The policies behind SOLs are also for judicial economy and to protect defendants from having a never-ending potential suit looming over them. Often, the seriousness of the crime or the tort, or some element of it, dictates the time frame of the SOL. It is a means to ensure that plaintiffs pursue their claims with reasonable diligence: I.e., if it matters to you, file it. Also, as I touched on above, time disadvantages defendants. Plaintiffs are the "injured" party, so they tend to retain evidence much longer than a defendant, who might not even realize he has done wrong &ndash; especially in civil matters. So, in a libel case, the whole basis of the claim is the irreparable damage to your reputation. If more than a year has passed and you didn't know about it, one could assume the damage never rose to the level of having sufficed to make a valid claim in the first place. That is why they run fast in those cases. They run fast in medical malpractice claims too, but this is a result of tort reform &ndash; the public policy that litigation against doctors/hospitals causes increased health care costs for everyone. So, policy suggests it's best for society to dispose of these claims quickly (not so much if you're the plaintiff). Whereas most regular negligence claims can have SOLs as long as six years in some jurisdictions where I have practiced. So there are clearly policy determinations going into these legislative acts. The Golden Rule of Law that I tell all of my clients is this: If you think you have a claim, talk to a lawyer right away, because if you don't you can lose the right to pursue relief, much, much quicker than one may ever imagine! I know this is a long answer, but I get asked this (type) of question all the time. Plaintiffs feel the SOLs run too fast, while Defendants cannot believe they can still be on the hook!