Question regarding a new local license approach

[Chuck Swiger]

On Mar 10, 2005, at 5:11 AM, Walter van Holst wrote:
> On top of that,
> in order to limit liability and warranties (oh, and BTW, there is no
> difference between warranties, implied warranties and guarantees in
> Dutch law, it is all either a guarantee or it isn't), you need a
> contract. It is just impossible to have a user surrender rights to
> claim damages by using a bare license.

What about CDDL clause #5:

"5. DISCLAIMER OF WARRANTY.

COVERED SOFTWARE IS PROVIDED UNDER THIS LICENSE ON AN AS IS BASIS, 
WITHOUT WARRANTY OF ANY KIND,  EITHER EXPRESSED OR IMPLIED, INCLUDING, 
WITHOUT LIMITATION, WARRANTIES THAT THE COVERED SOFTWARE IS FREE OF 
DEFECTS,  MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. 
  THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE  COVERED 
SOFTWARE IS WITH YOU. SHOULD ANY COVERED SOFTWARE  PROVE DEFECTIVE IN 
ANY RESPECT, YOU (NOT THE INITIAL DEVELOPER  OR ANY OTHER CONTRIBUTOR) 
ASSUME THE COST OF ANY NECESSARY SERVICING, REPAIR OR CORRECTION. THIS 
DISCLAIMER OF WARRANTY  CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE. 
NO USE OF ANY  COVERED SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER 
THIS  DISCLAIMER."

Is this invalid under Dutch law, meaning that it is impossible to use 
software covered by this license?

> There has to be a point where
> the user can agree to the license or not (and there are restrictions
> on the extent to which those rights can be surrendered in a contract).

I write and publish open source software, just like many other people 
on this list who are developers.  I make that software available for 
free, and in return I expect a disclaimer from warranty much as the 
CDDL has above.  If your country's law does not permit that to take 
place without having a contract signed between the two parties, I guess 
that means people there are being excluded from a lot of Open Source 
Software...?

-- 
-Chuck