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ARTICLE 2B and QUALITY/COST ANALYSIS
cost of quality across the life of a
product.
Note that these are all costs of the seller. A cost of the customer is an externalized cost that is not
reflected in the seller’s cost analysis. Customer costs are partially and indirectly reflected when they
bounce back as external failure costs.
External failure costs include:
Customer support costs
Lost sales
Legal costs.
Article 2B is a multi-pronged assault on external failure costs. It drives these costs way down in
mass-market cases, and keeps them low even when quality declines. This reduces the economic
pressure on software publishers to improve their products, resulting, I believe, in a weaker domestic
industry over the long term. And, of course, in crummier products. The table on the next page
provides examples of the costs that are driven down. Article 2B authorizes these measures, and in
this world of you-can’t-see-the-terms-until-after-you-buy-it contracting, we should expect to
routinely see terms like these.
For more details on quality/cost analysis and 2B, e-mail me for a copy of:
Bad Software—Who is Liable?
Invited address to the American Society for Quality, May, 1998.
Keynote address to the Quality Assurance Institute, June, 1998.
You might also be interested in:
Kaner, C. & D. Pels (1997). Article 2B and Software Customer Dissatisfaction.
(unpublished.) Meeting of the National Conference of Commissioners on Uniform State
Laws' Article 2B Drafting Committee, Cincinnati, OH, May 30, 1997. Available at
www.badsoftware.com/stats.htm.
CUSTOMER SUPPORT LOST SALES LEGAL RISKS
Reduce net support costs and
obligations
Reduce effects of competition Reduce probability and cost of
lawsuits
Charge customers for all calls
for support, even for defects.
No refund for these calls
even if the customer returns
the software. 2B-703(a)(2)
allows refund of purchase
price after return of the
software as the sole remedy.
No implied warranties. 2B
–406 allows post-sale
disclaimer with no
opportunity pre-sale for
customer to discover the
disclaimer.
Goods-based consumer
protection laws (such as
Magnuson-Moss and
California’s Song-Beverly
Act) may become
inapplicable. Their scope is
goods--2B transactions are
transactions in an intangible
(a license to use IP).
No duty to mass-market
customers or consumers
(only to big customers) to
cure defects. 2B-606.
Lesser right to a refund.
(Perfect tender rule available
only to mass market. 2B
material breach definition is
much more publisherfriendly
than Restatement’s.)
No pre-sale disclosure of
terms, so there’s no
competition on qualityrelated
promises. 2B-208.
License agreements prohibit
disclosure of details of the
product, including banning
writing magazine reviews
without publisher’s
permission. Some publishers
already have such terms,
though they probably don’t
work in mass-market today.
2B-102(a)(13) includes
nondisclosure in
“contractual use
restrictions”, which are
deemed as OK in contracts.
No reverse engineering
(harder to compete, and
harder to do 3rd party
maintenance). (Use
restriction.)
No reverse engineering for
interoperability, to make two
products compatible. (Use
restriction.)
Can make the contract noncancellable
for breach 2B-
703.
Seller chooses its favorite
state or country, for its
choice of law. 2B-107.
Seller chooses its favorite
forum. 2B-108 (but choice
can’t be “unfair & unjust”
as term is used in Carnival
Cruise Lines.)
No damages. Rescission is
the only remedy, and
rescission doesn’t include
repayment of fees for
“support” (such as the call to
ask for a refund.) 2B-
703(a)(2)
Remedies can be excluded
inconspicuously, post-sale.
Eliminates the concept of the
“minimum adequate remedy”
which was an influential
comment in Article 2. If the
sole remedy fails, too bad.
There are, of course, no
damage limitations available
to mass market customer
with respect to vendor’s
recovery from the customer.
Vendor is exclusive definer
of what constitutes a breach
on the customer’s part.
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可不可不要这么样徘徊在目光内
你会察觉到我根本寂寞难耐
即使千多百个深夜曾在梦境内
我有吻过你这毕竟并没存在
人声车声开始消和逝
无声挣扎有个情感奴隶
是我多么的想她
但我偏偏只得无尽叹谓
其实每次见你我也着迷
无奈你我各有角色范围
就算在寂寞梦内超出好友关系
唯在暗里爱你暗里着迷
无谓要你惹上各种问题
共我道别吧别让空虚使我越轨
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[楼 主]
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Posted: 2006-06-23 17:13 |
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软件测试基地论坛 -> 英语天天看 -> ARTICLE 2B and QUALITY/COST ANALYSIS
