Unnamed

Hello,
In response to http://clientforums.tcadmin.com/showthread.php?goto=newpost&t=2426

And with reference to http://tcadmin.com/license.php

Specifically Section 1, Subsection 1
1.1. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND Balance Servers.

The point is of any privity in contract limiting to YOU is not in dispute, what is in dispute is who YOU can be. Where X purchases a Licence under company Y, the contract formed will be assumed under Y, where YOU will be the company not X. Anything else would be to suggest that an employee of our company who physically purchases the license is actually the owner.

All I am interpretting is the definition of YOU. I would dislike the thought of Z who is acting as an agent for company Y, purchases the licence for Y and then to Y's dismay finds out then when Z leaves the company he has legal entitlement/ownership to the licence. This would definately not be how it would be interpretted to mean although a literal reading of YOU may include that. I think the problem is that on a quick read the Licence agreement is written in a way that it gives the impression that the company is ran as a Sole Trader by one person which we know obviously not to be the case for a majority of companies.

Anyway, to the point of this whole email. I am looking at figures of wether upon purchase of several more licences wether it is feasable at this time in moment to purchase an enterprise licence. The point being that this is a right which the company (Y) will have as an accet, so that if company Y some time in the near future does decide to sell up everything, servers, domain, clients, the licence is legitmately passed with the licence.

Im sure you should be able to understand the purpose behind the post now in the forum and it was the reason why I edited it to remove the content because I didnt want to go into details of 'Selling' companies and ownership on the forum.

Anyway,
Thanks.
Steve Doyle 	 
	Posted On: 02 Jun 2007 07:52 PM
As stated in the forum post. Licenses are non-transferable and non-saleable. If you sell the company the license cannot be part of the sale. If you do, as stated in the forum post, the license will be disabled and deleted, which will cause a legal issue for you as the person(s) that you try to sell it to will most likely be coming to you asking why the license is disabled.

This is clearly stated in the following section of the software license.

Grant of license
2.1. You are not permitted to install or use Our Software except in accordance with this license. In consideration of your agreement to the terms of this License, BalanceServers grants you a non-exclusive right ('License') to install and use Our Software as permitted by this License.

The license agreement states you are granted the right to install and run the software under said licensing contracr. You do not own the software in any way, shape or form. You simply are granted to run the the licensed amount of servers.

Again, to be absolutely clear. You cannot sell your licenses along with your company. If you do they will be disabled and you will have a very upset buyer.




Steve Doyle
TCAdmin - The Game Hosting Control Panel
http://www.tcadmin.com
Chris Atkinson 	 
	Posted On: 02 Jun 2007 08:12 PM
Hello,
The following is written as a very direct approach, please dont take offence or consider any of it rude because of its bluntness.

Firstly, as to half of your terms, I am not sure at all of US law, but if it follows any of the principles of UK law a majority of your terms are void as to UCTA or the EU Regulatations to Consumer Contracts.

I do actually know what Im talking about with Law and Contracts since I have a degree in Law. Basically either you claims 1: The contacts is owned by the person who purchases it.
This would be stuck down by a civil claim that it is never the intention of the person who purchses it to hold any onwership right because it is purchased as as agent of the company. You essentially CANNOT decide you you contract with. The contract is between the company, not with a person. We can dispute this and if you like I can find you cases which point this out. Freedom of contract, a fundamental principle of any legal system will say that a person is free to make a contract and you cannot enforce it upon them, it follows as a consequence that you cannot force a person acting as an agent to be the person who is bound by the terms.

It really follows from an analogous situation where by, Z purchases for Y the licence of TCAdmin, but later Z dies. Does this mean the contract dies with him since from your interpretation, which is wholly unequitable and was deifnately not the intention of company Y, would mean it does.
Secondly, company Y purchases for themselves the licence but comes under new management. The company purchases the licence but is then bought out by Q, it follows that the sale of the company is not at all a transfer of the licence. The licence does not pass from one entity to another but to the person who purchases the company, at the heart of the sale, the company will still own the licence and there is no sale. The point can even be applied to a recent situation, Boots Pharmaceuticals: the buy out here, does this mean that all of the licences software that boots owns is non transferable? Its an obvious answer that, Yes, it is non transferable. The cannot sell there Oracle licence for the databases they most probably use, but the point is, new ownership does not mean the entity which purchased it changes.

You are wholly missing the point, the is no transfer of the licence, because YOU is the company which still owns the software.

To apply this the given situation, I want TCAdmin to become a part of the companies accets upon purchase of the licence. IG is not acting as a sole trader, so why should it follow that the person who purchases the licence is the entity that has sole ownership, again the courts of equity and civil proceedures (at least with UK) would most certainly rule that he doesn't.

There is no violation of any of your terms because there is NO TRANSFER. The sale of the company does not preclude the avaiability of the ability of that company to continue its usage under company X (under new management), of the software which is has leased legally.

Basic rules of 'Privity' apply.

Once again, excuse the bluntness of the email and no intention of rudeness or avoidance of your terms is intended, I only want to make sure that in 6 months if the company is set for sale, TCAdmin is a legitmate accet owned by the company.