2009-04-11, 02:49 PM
DrRusty Wrote:Well to the people who think it's not enforceable...... I really don't think that Nexon just thought up a ToS and wrote it up out of their ass without knowing if it would be enforceable or not. With a company like that, they definitely had lawyers with them to make sure the contract was a binding one. One that they could act on.
Legal departments add scare clauses all the time, knowing full well they haven't a snowballs chance in hell of enforcing them. It's just an intimidation tactic.
Most contracts actually contain a clause specifically stating that if any portion of the contract is deemed invalid the rest of the contract remains in full force, because there are several places where a single invalid clause will terminate the entire contract, and most contracts are not flexible enough to be valid in all places in all times.
As for this particular "Contract", it falls under jurisdiction of the UCITA, the Uniform Information Transactions Act, being an agreement to license computer information/rights. More specificallly this is an "access contract" between Nexon America, and the end user.
UCITA only permits the recovery of damages once for the same loss, and the remedy clause of the contract may not impose damages that exceed the loss caused by the breach ( UCITA § 801). UCITA, like common law, requires that liquidated damages specified in a contract must be reasonable in light of the loss anticipated at the time of contracting, or the anticipated difficulties of proving loss. Unreasonably large liquidated damages are considered void ( UCITA § 804 ). This is again where I pointed out that Nexon being free to play, means they can't prove damages are being sustained unless you take an action that wholesale interrupts service and eliminates all potential for them to have had income. "He disconnected a player who might have spent money with us" doesn't cut it, sorry bub. Can't even claim that someone drove off people who otherwise might've spent money because you can't quantify a loss on income that wasn't guaranteed. If you drove off players and they cancelled their paid suscriptions you could be considered liable for the loss of those subscription fees, but even those are hard to quantify.
The UCITA can be found here for the curious.
It's not having what you want - It's wanting what you've got.