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Complainant is Beyoncé Knowles of California, United States of America, represented by Keats McFarland & Wilson, LLP, United States of America.
Respondent is Sonny Ahuja of Wisconsin, United States of America.
The disputed Domain Name <beyoncefragrance.com> is registered with Wild West Domains, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 25, 2010. On August 26, 2010, the Center transmitted by email to Wild West Domains, Inc. a request for registrar verification in connection with the disputed Domain Name. On August 27, 2010, Wild West Domains, Inc. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on August 27, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was September 16, 2010. On September 15, 2010, Respondent contacted the Center by email requesting a 15-day extension of time to answer the Complaint.
The Center contacted Complainant for Complainant’s response to the request. On September 20, 2010, Complainant declined to agree to an extension of time to answer. The Center, having found no exceptional circumstances for the request (Rules, paragraph 5(d)) denied the same. Respondent was notified of this fact on September 20, 2010 and was given until September 21, 2010 to submit a Response. No formal Response was filed.
The Center appointed Barbara A. Solomon as the sole panelist in this matter on October 1, 2010. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
Upon review of the case file, the Panel, in the interest of fairness, issued an Administrative Procedural Order on October 4, 2010 giving Respondent an opportunity to file a Response by October 9, 2010. No Response was filed by Respondent.
Complainant is Beyoncé Knowles a well-known recording artist, actress and spokesmodel who has had significant commercial success and fame over the last decade or more. Complainant began her career as a singer in the late 1990’s as part of the R&B group Destiny’s Child. In 2003 she became a solo artist and has been recognized as the most successful female artist of the 2000s decade, the top radio artist of the decade and the top certified artist of the decade. Complainant’s fame as a singer has allowed her to expand into other areas including films such as the movie version of the Broadway musical Dreamgirls. Complainant also has worked as a spokeswoman for fashion and fragrances and has developed her own fragrance Beyoncé Heat. Complainant owns at least two United States registrations for the mark BEYONCÉ.
Respondent registered the disputed Domain Name (the “Domain Name”) on November 21, 2008. At the time of the Panel’s decision, the Domain Name resolved to a website containing sponsored links all of which appear to relate to fragrances.
Complainant’s submissions can be summarized as follows: (a) Complainant has rights in the mark BEYONCÉ by virtue of existing United States Federal trademark registrations for said mark; (b) Complainant, by extensive commercial use of her own name in the entertainment industry including as a recording artist, actress and spokesmodel, has acquired common law trademark rights in the name Beyoncé; (c) the Domain Name includes the entirety of Complainant’s BEYONCE mark and is identical or confusingly similar to Complainant’s BEYONCÉ mark; (d) Respondent is not commonly known by the name “beyoncefragrance.com”, and is not authorized or licensed by Complainant to use Beyoncé in or as part of any mark or Domain Name; (e) Respondent cannot claim any legitimate, noncommercial or fair use of the Domain Name; (f) Respondent is using the Domain Name for his commercial benefit, specifically for an ad farm which contains pay-for-click and sponsored listings; (g) use of the Domain Name is intended to divert consumers to Respondent’s site for the purpose of generating revenues from sponsored listings; (h) registration of the Domain Name is intended to attract Internet users to Respondent’s website for Respondent’s commercial gain by creating a likelihood of confusion with Complainant.
While Respondent did not put in a further or formal response following the Panel’s Procedural Order, in emails submitted to the Center dated September 15, 16 and 22, Respondent advised of the following: (a) Respondent has been in the perfume business for 13 years and sells Beyoncé fragrance in his stores and through online websites; (b) Respondent intended to sell the Beyoncé fragrance on the website “www.beyoncefragrance.com”; (c) Respondent purchased the Domain Name in order to sell Complainant’s fragrance; (d) Respondent has not sought to sell the Domain Name.
Under paragraph 4(a) of the Policy, the burden of proof lies with Complainant to show each of the following three elements: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used by Respondent in bad faith.
As an initial matter, Complainant must first establish rights in BEYONCÉ as a mark. Regardless of how famous the Complainant may be, this does not lessen Complainant’s burden of proof, a burden that requires Complainant to prove trademark rights through appropriate evidence. In the case of Complainant, there should be a plethora of supporting evidence. Unfortunately, Complainant, through counsel, failed to provide such evidence, leaving the Panel with little actual evidence on which to base its opinion. For example, Complainant’s evidence consists in significant part of a printout from Wikipedia.org and “www.beyonceonline.com” (annex C to Complainant’s submission). Courts have hesitated to give any weight to Wikipedia references given that the listings on Wikipedia can be created by individuals and are not subject to any fact checking. See, e.g., June 23, Letter from INTA to Commissioner Lynne Beresford objecting to use of Wikipedia to establish rights because “anyone can alter the content of Wikipedia at any time, casting doubt on the validity of the information contained therein”; Campbell v. Sec’y of Health and Human Science, 69 Fed. Cl. 775, 781 (Ct. Cl. 2006) (criticizing Wikipedia as source of evidence); In re IP Carrier Consulting Group, 84 U.S.P.Q.2d 1028, 1032-1033 (T.T.A.B. 2007) (noting that better practice is to corroborate information with other sources). Complainant has not offered any other evidence to support or corroborate most of the claims made in the third party Wikipedia account or in the Complaint.
Complainant also refers to the website “www.beyonceonline.com”. However, Complainant has failed to identify who owns “www.beyonceonline.com” and who is responsible for the content on that website. Further, Complainant has not bothered to indicate when “www.beyonceonline.com” actually went live or to indicate whether the registration of the url “www.beyonceonline.com” or the availability of the website predates the registration of the Domain Name. In addition, it does not appear that anything from the “www.beyonceonline.com” website references any use of BEYONCÉ as a name or a mark prior to the November 21, 2008 registration of the disputed Domain Name.
Another concern about Complainant’s evidentiary submission is its failure to provide either copies of the United States Registrations for the BEYONCÉ trademarks relied on or printouts from the official website of the United States Patent and Trademark Office showing current status of and title in the pleaded registrations. Complainant instead provided printouts from the Trademark Electronic Search System which provides no such information directly but which, based on the information contained therein, allowed the Panel to verify the publicly-available status of United States Registration Numbers 2879852 and 3734682 and to determine that based on the official record of the United States Patent and Trademark Office these Registrations are valid and subsisting and remain in effect.
Although a proper evidentiary showing likely would establish extraordinarily strong common law rights in BEYONCÉ as a mark, on the record presented the Panel cannot make such a finding. However, this is not necessary given that Complainant owns United States Registrations for the BEYONCÉ trademark which establish rights in the BEYONCÉ mark prior to the registration date of the Domain Name.
Having determined that Complainant has rights in the mark BEYONCÉ, the next issue is whether the Domain Name is identical or confusingly similar to Complainant’s mark. The Domain Name adds to the name BEYONCÉ the generic word “fragrance.” It is well settled that adding a generic term to a mark is not sufficient to avoid confusion. Volvo Trademark Holding AB v. Nicklas Uvelov, WIPO Case No. D2002-0521 (including a generic term with a famous mark aggravates rather than diminishes the likelihood of confusion); Bayerische Motoren Werke AG v. bmwcar.com, WIPO Case No. D2002-0615 (domain name that wholly incorporates registered trademark establishes confusing similarity); Quixtar Investments, Inc. v. Dennis Hoffman, WIPO Case No. D2000-0253 (domain name with addition of generic term found legally identical to complainant’s mark). In this case, the Domain Name clearly is dominated by Complainant’s BEYONCÉ mark and the source identifying and distinctive element of the Domain Name and Complainant’s mark are identical. The fact that Complainant was not offering any fragrances under her name prior to the registration of the Domain Name is of no consequence. It is well known that celebrities often lend their name or image to ancillary products such as fragrances; witness Britney Spears, Jennifer Lopez, Sean Combs, Elizabeth Taylor, and Sarah Jessica Parker to name just a few. Combining this industry custom with Complainant’s history of being a spokesperson, the Domain Name inevitably would be associated with Complainant.
Accordingly, the Panel finds that paragraph 4(a)(i) of the Policy has been satisfied and notes that in the informal submissions by Respondent, Respondent has not suggested otherwise or argued to the contrary.
It is uncontested that Complainant has not licensed or otherwise authorized Respondent to use the BEYONCÉ mark for any purpose. This then shifts the burden to Respondent to show by concrete evidence that he has rights or legitimate interests in the Domain Name. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270. Pursuant to paragraph 4(c) of the Policy, Respondent may satisfy his burden by demonstrating any of the following: (i) before any notice of the dispute, Respondent’s use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or (ii) Respondent (as an individual, business, or other organization) has been commonly known by the Domain Name, even if he has acquired no trademark or service mark rights; or (iii) Respondent is making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Respondent has been given ample opportunity to present a Response to the Complaint and to establish his rights or legitimate interests in the Domain Name. He has not come forward with any such evidence. Indeed notwithstanding the claims made by Respondent in his emails, the only evidence that exists is the actual website that is associated with the Domain Name. That website contains nothing more than sponsored links to a variety of third party sites that sell third-party fragrances. Respondent undoubtedly collects referral fees for these links. Prior UDRP decisions have made it clear that such use does not constitute a legitimate use of a Domain Name or the legitimate offering of goods or services. PRL USA Holdings, Inc. v. LucasCobb, WIPO Case No. D2006-0162. Respondent has not submitted any materials to overcome this finding of illegitimacy.
The fact that Respondent is in the fragrance business does not allow Respondent to register the Domain Name at issue. Several WIPO panels have ruled that a re-seller, even an authorized re-seller, cannot use another mark in a Domain Name without the express consent of the mark owner, consent that obviously does not exist here. See, e.g., The Stanley Works and Stanley Logistics, Inc. v. Camp Creek Co. Inc., WIPO Case No. D2000-0113; Avon Products, Inc. v. Jongsoo Lee, WIPO Case No. D2001-0272.1 Similarly, the fact that Respondent may desire to sell BEYONCÉ fragrance does not give him an absolute right to take <beyoncefragrance.com> as a domain name. See Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903; see also WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Section 2.3. Under the majority view, for a re-seller to make a bona fide use of a protected term in a domain name, Respondent must, inter alia, accurately disclose the respondent’s relationship with the trademark owner. In this case, Respondent has not satisfied this requirement. Indeed, other than asserting in an email that his intention in registering the Domain Name was to establish a website that sold BEYONCÉ fragrance, there is no evidence that this was the purpose.
Complainant suggests that there is evidence of bad faith because Respondent attempted to sell the Domain Name. The exhibits annexed to the Complaint, however do not support this conclusion. There is no evidence that Respondent registered the Domain Name for the sole purpose of selling it. Further, no offer was made for sale upon acquisition of the Domain Name or even shortly thereafter. Any discussion of sale was initiated by or on behalf of Complainant. Further, Complainant appears to have continued to push the issue of sale by sending a steady stream of emails to Respondent asking him to sell the Domain Name. These include emails dated December 17 2009, February 12, 2010, February 17, 2010, March 17, 2010, March 24, 2010, and April 2, 2010. These emails do not show that Respondent took the Domain Name for the purpose of selling it, only that Complainant made repeated efforts to try and buy it. Certainly, this evidence does not support a claim of bad faith under the UDRP. Puky GmbH v. Ignatius Agnello, WIPO Case No. D2001-1345.
Complainant must show both bad faith registration and bad faith use. A. Nattermann & Cie GmbH and Sanofi-aventis v. Watson Pharmaceuticals, Inc., WIPO Case No. D2010-0800. As to bad faith registration, given the statements made by Respondent, it is clear that Respondent knew of Complainant at the time he registered the Domain Name. Indeed, Respondent all but admits that the Domain Name was registered because of his knowledge of and to create an association with Complainant. In addition, Respondent knew at the time he registered the Domain Name that he was not authorized to sell any of Complainant’s fragrances and that he was not a licensed re-seller of the fragrances. Accordingly, there is sufficient evidence to find that the Domain Name was registered in bad faith.
It is also clear from the evidence that the Domain Name is being used in bad faith. The website to which the Domain Name currently resolves contains sponsored ads to various websites that sell third-party fragrance. As such, Respondent is trading on consumer interest in Complainant and her fragrance in order to generate Internet traffic and to commercially benefit from the sponsored links that appear on the website. Respondent clearly derives commercial advantage in the form of referral fees. This constitutes bad faith. Fox News Networks, LLC v. Warren Reid, WIPO Case No. D2002-1085; Volvo Trademark Holding AB v. Unasi, Inc., WIPO Case No. D2005-0556; Lewis Black v. Burke Advertising, LLC, WIPO Case No. D2006-1128. The Panel therefore finds that Respondent has registered and is using the Domain Name in bad faith and that paragraph 4(a)(iii) of the Policy has been satisfied.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <beyoncefragrance.com>, be transferred to Complainant.
1 The Complaint states that Complainant’s fragrance Beyoncé Heat is available at the websites”www.beyoncefragrances.com” and “www.beyonceparfums.com”. Complainant, however, has failed to indicate whether she owns these websites, whether these websites are associated with Complainant, or whether Complainant has authorized the use of the Beyoncé name in connection with these websites.

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A third of the reported ADA and FHA decisions in the last three weeks involved a single plaintiff, Scott Johnson. Mr. Johnson’s name is often found in this blog because he has been a fertile source of decisions on a wide range of ADA issues. As discussed below, outrage is one common response to his lawsuits.
Outside the courts my ADA news feed delivers two kinds of articles for the most part. One kind complains about serial filers and their impact on local businesses. The other complains about the lack of accessibility in public accommodations and governmental entities. Neither seems to ask the big question that I have asked for years: Can’t we find some better way to increase accessibility than wasteful private litigation? The present system is a failure, as evidenced by the fact that decades after passage of the ADA private lawsuits continue to increase in number. Nonetheless, the two sides of the serial litigation issue seem stuck on a fruitless debate about the morality of serial filing instead of trying to address the possibility of a genuinely effective system of enforcement. And with that sermon behind us, here are your tax day cases.
Cases decided on an unopposed summary judgment motion don’t usually merit much notice, but there is a footnote in Johnson v. AutoZone, Inc., 2019 WL 1245143, at *4 (N.D. Cal. Mar. 18, 2019) worth remembering. The Court points out that there is no kind of barrier removal that is per se readily achievable. In more substantial cases this can make a difference in the plaintiff’s ability to obtain a summary judgement. It also contradicts other decisions like Johnson v Sammy’s Restaurant cite below that find certain kinds of remediation are per se readily achievable.
Johnson v. Mattioli, 2019 WL 1437099 (E.D. Cal. Mar. 29, 2019) is another agreed summary judgment case. This and the preceding case raise a simple question. Why, if the defendant did not intend to defend, did the case make it as far as summary judgment? For most ADA cases the outcome is inevitable the day the Complaint is filed. Either there are barriers to access that must be fixed or there are not. If there are barriers to access then fixing them should not require a court order. More important, the expense of mounting any defense other than mootness is money wasted. The entire strategy for the defense should be to reach a final resolution as cheaply and quickly as possible so as to maximize the ratio of remediation cost to legal expenditures.
Johnson v. RK Investment Properties, Inc., 2019 WL 1575206 (N.D. Cal. Mar. 18, 2019) is a case in which default as a strategy seems to have worked very well. The plaintiff’s claims were limited to those in his original pleading, as required in a default judgment context, and besides the inevitable injunction the magistrate judge awarded only the minimum $4000 statutory damages under the Unruh Act along with $4,457.50 in attorneys’ fees and costs. The case could hardly have been defended for less.
Outrage is not a defense.
Johnson v. Sammy’s Rest., Inc., 2019 WL 1517572 (E.D. Cal. Apr. 8, 2019) is another reminder that mere outrage at the abuse of the ADA by serial plaintiffs is not a defense when real architectural barriers remain. Scott Johnson and his lawyers are among the most prolific serial filers in the United States, but the Ninth Circuit has eliminated any meaningful standing requirement in ADA cases, so the only real defense is compliance with the law. In this case the defendants apparently complained a good deal about how Johnson misuses the ADA, but didn’t go so far as to remediate the architectural barriers at issue, meaning the fees spent on defense were simply wasted.
Don’t make a promise you can’t keep.
These are now so numerous they justify their own category in these blogs. Mitchell v. BMI Fed. Credit Union, 2019 WL 1242663 (S.D. Ohio Mar. 18, 2019) is a puzzling case because was decided based on insufficient allegations of an intent to return – always a prerequisite in ADA cases because injunctive relief is the only relief available. The plaintiff’s lawyers are experienced in website litigation** so the failure was not accidental. My guess is that the intent to return allegations were omitted to avoid filing a knowingly false pleading – claims that will withstand a motion to dismiss may not withstand the closer scrutiny of discovery. In the meantime the discussion merits close analysis by defense counsel hoping to find ground for an early dismissal.
Advoc. Ctr. v. Louisiana Tech U., 2019 WL 1303212, at *7 (W.D. La. Mar. 6, 2019), report and recommendation adopted, 2019 WL 1301983 (W.D. La. Mar. 21, 2019) has a useful discussion of the 5th Circuit’s requirements for standing by organizations that purport to act for those with disabilities. There is nothing unusual about the discussion, but it is a good reminder that just having a nice name and a willingness to file suit is not sufficient to give any group standing to sue.
Death eliminates standing in ADA cases.
Mims v. Rodeway Inn and Suites, 2019 WL 1283867 (W.D. Wis. Mar. 20, 2019) points out something so obvious that the pending appeal is a surprise. When only injunctive relief is available the death of the plaintiff eliminates standing, for the Court cannot order any relief that will benefit a plaintiff who is no longer here.
Biting the hand that feeds you.
In Access Living of Metro. Chicago, Inc. v. City of Chicago, 2019 WL 1429647, (N.D. Ill. Mar. 29, 2019) an organization dedicated to access by the disabled sued one of its governmental donors for not doing enough to insure that projects funded by the City were accessible. The City moved to dismiss based on a lack of standing and failure to state a claim, but the Court was not buying either. What is most interesting about the case is the grotesque inefficiency of having a government funded organization suing the government. It is impossible to tell from the Complaint what efforts were made before suit was filed to resolve the problems claimed, but when the left and right hands are fighting with each other the outcome can’t be anything but waste.
Johnson v. Starbucks Corp., 2019 WL 1427435 (N.D. Cal. Mar. 29, 2019) applies DOJ’s recent guidance on interpretation of the counter length requirement to deny a plaintiff motion for summary judgment.† With any luck at all these claims, which were never particularly compelling, should slowly disappear.
Schutza v. Alessio Leasing, Inc. 2019 WL 1546950 (S.D. Cal. Apr. 8, 2019) is another sales or service counter case, but in this one the defendants acted too soon, trying to obtain a dismissal at the pleading stage. The line between adequate specificity and generalizations is not always clear, but when a plaintiff identifies a specific architectural barrier like a service counter additional detail is probably not required. The court did dismiss the plaintiff’s Unruh Act claims based on the predominance of state law issues. Eliminating the plaintiff’s state law damage claim is a victory – unless he re-files.
Getting in hot water over hot water.
I will admit that Abel v. Oceanic Arcata, LP, 2019 WL 1559562 (N.D. Cal. Apr. 10, 2019) addressed an accessibility requirement I have never seen in a lawsuit and that I could not find used in a lawsuit after researching the issue. Section 607.6 of the 2010 Accessibility Standards requires that water from a shower spray unit be limited to 120° F. presumably because some disabled individuals cannot easily move out of the spray and might be burned, which is precisely what seems to have happened in this case. There is an equivalent requirement in California state law and, it appears, in the Model Plumbing Code and Uniform Plumbing Code. While it might seem that a mere ADA violation is less significant than the likely personal injury claim, the possible award of attorneys’ fees may make the claim valuable in states like Texas that do not provide for such fees in ordinary tort cases. It may also be outside insurance coverage, thus representing an unexpected expense for the defendant. Hotels and other public accommodations with showers may want to check the temperature.
Carlos Brito, Pl., v. Colorado Springs Hotel Owner, LLC, and Marriott Intl., Inc., Defendants.,2019 WL 1533068 (D. Colo. Apr. 9, 2019) is a short opinion about staying consideration of a motion for summary judgment that raises more questions than it answers. First, although the plaintiff is a paraplegic the defendants apparently moved for summary judgment in part based on his failure to prove disability. That seems like a long shot at best, and frivolous at worst. On the substantive question of whether there were in fact ADA violations it seems odd that the plaintiff believed a third-party inspection was required to defeat the defense motion for summary judgment based on a lack of proof of ADA violations. While expert testimony is sometimes required, in many cases the plaintiff can testify to the violation and the “readily achievable” nature of remediation is obvious. Equally odd is the plaintiff’s failure to obtain the required expert inspection during discovery: If you know you need it, why wait? The answer to this last mystery probably lies in the nature of serial litigation. Mr. Brito has filed dozens of cases in the last few months and hundreds in the last few years. With volume like that taking care of details becomes a problem and paying experts an expense that a serial filer will want to avoid.
FHA relevance and discoverability in serial filer cases.
In Reed v. Brewery Master Tenant, LLC, 2019 WL 1548903 (W.D. Tenn. Apr. 9, 2019) the Magistrate Judge was confronted with a dispute over the scope of a physical examination of apartments that supposedly failed to meet the design/build requirements of the FHA. Based largely on an earlier decision from the Northern District of Texas‡ the Magistrate Judge allowed an inspection that went beyond the areas actually seen by the plaintiff. The decision is appealable to the District Judge, so this may not be the final word on the subject; however, a crucial note shows where the defendants may have gone wrong. Part of the defendant’s objection concerned the limits on the plaintiff’s standing, but this had not been raised before the discovery dispute arose. We know from experience with serial plaintiffs like Mr. Reed that standing can only be attacked effectively based on facts rather than pleaded allegations, and that attacking standing first through staged discovery is likely the only effective way to do so.
** This is an ironic understatement – they have filed hundreds of drive-by style lawsuits all over the United States.
† We commented on a similar case in our St. Patrick’s Day Edition.
‡ Jason Morgan v. Parc Plaza Development, LP, Order of United States Magistrate Judge, No. 3:19-cv-00492-G, (N.D. Tex. Feb. 8, 2018) – not reported.
†† See our discussion in Beware the ADA settlement that buys a big bag of nothing and the other blogs to which it refers.


Party Name: Jason KAWAKAMI, Individually and on behalf of all others similarly situated, Petitioner/Plaintiff-Appellant/Cross-Appellee v. KAHALA HOTEL INVESTORS, LLC, dba Kahala Hotel and Resort, Respondent/Defendant-Appellee/Cross-Appellant.
KAHALA HOTEL INVESTORS, LLC, dba Kahala Hotel and Resort, Respondent/Defendant-Appellee/Cross-Appellant.
[142 Hawaii 511] This class action concerning Hawaiis hotel and restaurant service charge law returns to us for the second time. See Kawakami v. Kahala Hotel Invrs, LLC, 134 Hawaii 352, 341 P.3d 558 (2014). Its return presents us once again with the task of interpreting Hawaii Revised Statutes (HRS) § 481B-14 (2000).1 For the reasons explained below, we vacate the Intermediate Court of Appeals affirmance of the circuit courts grant of judgment as a matter of law (JMOL) and reinstate the circuit courts earlier grant of partial summary judgment to plaintiff Jason Kawakami as to the defendant Kahala Hotel and Resorts liability under HRS § 481B-14. We also reinstate the jurys special verdict in favor of Kawakami on legal causation and the amount of damages in the trial on damages that followed the grant of partial summary judgment. We remand to the circuit court for determination of additional damages and fees under Hawaiis statute governing unfair or deceptive acts or practices. HRS Chapter 480.
[142 Hawaii 512] be directly distributed to the banquet employees as tips.
Kawakami filed a lawsuit on behalf of himself and other customers who paid a service charge to the hotel in connection with the purchase of food or beverages. He claimed the hotels conduct was an unfair or deceptive act or practice (UDAP) under HRS § 481B-14 and HRS § 480-2. Kawakami moved for summary judgment "on liability" because the undisputed facts established that the hotel violated HRS § 481B-14 and HRS § 480-2. The circuit court granted summary judgment as to liability only, not remedies or damages, ruling that under HRS § 481B-14 the hotel had "a duty to disclose" to Kawakami that a portion of the service charge would become the property of the hotel rather than paid to its employees as tip income.4 A jury trial to determine damages followed. The jury found that the hotel was the legal cause of injury to the plaintiff class and awarded $269,114.73 to the class, corresponding to the amount of the combined service charges retained by the hotel as "the management share."
A little more than a month after the verdict, the hotel renewed its prior motions for JMOL, which had been denied by the circuit court. This time the circuit court granted the motion for JMOL on the theory there had been insufficient evidence the plaintiffs suffered injury as a result of the hotels violation of HRS § 481B-14. The circuit court stated that it was "struggling to understand how the Managements Share ... constitutes financial or economic loss or harm to Plaintiffs." The court focused on the apparent lack of an economic loss to the plaintiffs relating to the hotels failure to distribute the funds from the service charge in the manner required by the statute. That failure, the court stated, "did not cause Plaintiffs to pay any additional sums over and above their contractual obligation to pay the service charge or any other additional compensation." Yet, the court observed, the "jury awarded as damages to Plaintiffs a sum that appears to be equal to the amount of the Managements Share of the service charge."
On appeal the ICA vacated the circuit courts order granting Kawakamis motion for summary judgment and held instead that summary judgment should have been granted in favor of the hotel. The ICA reasoned that because the hotel ultimately distributed the management share of the service charge as wages, its actions were in compliance with the language of HRS § 481B-14 and no disclosure to Kawakami was required. Kawakami I, mem. op. at 4-5.
On certiorari in Kawakami I, we rejected the ICAs reasoning. Instead, we recognized "the well-settled duty of hotels and restaurants" under the statute "to either distribute the entirety of the service charge directly to non-management banquet employees who served the consumers as tip income, or to disclose its practice of withholding the service charge[.]" Kawakami I, 134 Hawaii at 357, 341 P.3d at 563; id. (characterizing this statutory duty as assisting "a well-informed consumer" in choosing whether to leave a tip for the employees as a reward for their service). We held that under HRS § 481B-14, a hotel or restaurant that applies a service charge for food or beverage services must either distribute the service charge directly as tip income to the non-management employees who provided the food or beverage services, or disclose to its customers that the service charges are not being distributed as tip income.
Kawakami I, 134 Hawaii at 354, 341 P.3d at 560. Accordingly, we vacated the ICAs judgment on appeal and remanded to the ICA. We directed the ICA to address on remand Kawakamis argument that the circuit court erred when it granted JMOL to the hotel on the theory that Kawakami suffered no injury as a result of the hotels actions. Id. at 360, 341 P.3d at 566.
[142 Hawaii 513] show strictly "economic loss" in order to satisfy the consumer "injury" requirement of HRS § 480-13(b). Kawakami II, mem. op. at 3. The ICA nonetheless concluded that Kawakami failed to establish that he was injured even by the "less stringent standard" of non-economic injury. Id. With respect to Kawakamis alternative claim of a contract-based injury, the ICA rejected that claim largely on the grounds that "the required disclosure under HRS § 481B-14 need not take the form of a written provision in an event contract, nor must it necessarily occur before parties enter into the contract," and therefore there was no breach of contract. Kawakami II, mem. op. at 5. See also id., mem. op. at 4 (stating that "benefit-of-the-bargain damages are only available when there has been a breach of contract."). As a result, the ICA affirmed the circuit courts grant of JMOL.
On certiorari, Kawakami argues that the ICA erred by holding that no contract-based or UDAP-based injury occurred. He also argues that the ICA erred in affirming the circuit courts order denying plaintiffs motion in limine no. 1, which sought to preclude the admission of certain evidence.


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1. The Tucker Act, which merely confers jurisdiction upon the Court of Claims whenever a substantive right enforceable against the United States for money damages exists, does not in itself support the action taken by the Court of Claims in this case. Pp. 397-398.
2. Neither the Classification Act nor the Back Pay Act creates a substantive right in respondents to backpay for the period of the claimed wrongful classification. Pp. 398-407.
BLACKMUN, J., delivered the opinion of the Court, in which all Members joined except STEVENS, J., who took no part in the consideration or decision of the case.
John P. Rupp argued the cause for the United States. With him on the briefs were Solicitor General Bork, Assistant Attorney General Lee, Acting Assistant Attorney General Jaffe, and Ronald R. Glancz.
[ Footnote * ] Robert N. Sayler, filed a brief for Melvin Allison et al. as amici curiae urging affirmance.
This is a suit for reclassification of federal civil service positions and for backpay. It presents a substantial issue concerning the jurisdiction of the Court of Claims and the relief available in that tribunal.
The plaintiff-respondents, Herman R. Testan and Francis L. Zarrilli, are trial attorneys employed in the Office of Counsel, Defense Personnel Support Center, Defense Supply Agency, in Philadelphia. They represent the Government in certain matters that come before the Armed Services Board of Contract Appeals of the Department of Defense. Their positions are subject to the Classification Act, 5 U.S.C. 5101 et seq., and they are presently classified at civil service grade GS-13.
In December 1969 respondents, through their Chief Attorney, requested their employing agency to reclassify their positions to grade GS-14. The asserted ground was that their duties and responsibilities met the requirements for the higher grade under standards promulgated [424 U.S. 392, 394] by the Civil Service Commission in General Attorney Series GS-905-0. In addition, they contended that their duties were identical to those of other trial attorneys in positions classified as GS-14 in the Contract Appeals Division, Office of the Staff Judge Advocate, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Dayton, Ohio, and that under the principle of "equal pay for substantially equal work," prescribed in 5101 (1) (A), 1 they were entitled to the higher classification.
The agency, after an audit by a position classification specialist, concluded that the respondents' assigned duties were properly classified at the GS-13 level under the Commission's classification standards. On appeal, the Commission reached the same conclusion and denied reclassification. The Commission also ruled that comparison of the positions held by the respondents with those of attorneys employed by the referenced Logistics Command was not a proper method of classification.
The two respondents then instituted this suit in the Court of Claims. 2 Each sought an order directing reclassification of his position as of the date (May 8, 1970) of the first administrative denial of his request, and backpay, computed at the difference between his salary and grade GS-14 (and the claimed appropriate within-grade step), from that date. The trial judge, in a long opinion, App. 43-117, concluded that the respondents were not [424 U.S. 392, 395] entitled to backpay due to their allegedly wrongful classification. Id., at 57. But he also concluded that the Commission's refusal to reclassify respondents to GS-14 was arbitrary, discriminatory, and not supported by substantial evidence, ibid., and that as a matter of law the respondents were entitled to an order remanding the case to the Commission with directions so to reclassify the respondents. Id., at 58, 117.
The Court of Claims considered the case en banc and divided 4-3. The majority disapproved the trial judge's recommendation that the court was empowered to direct the reclassification of respondents to GS-14, for the Court of Claims is not authorized to create an entitlement to a governmental position. "If entitlement depends on the exercise of discretion by someone else we cannot substitute our own discretion." 205 Ct. Cl. 330, 332, 499 F.2d 690, 691 (1974). The majority felt, however, that if the Commission were to determine that it had made an erroneous classification, that determination "could create a legal right which we could then enforce by a money judgment." Id., at 333, 499 F.2d, at 691.
We granted certiorari because of the importance of the issue in the measure of the Court of Claims' statutory jurisdiction, and because of the significance of the court's decision upon the Commission's administration of the civil service classification system. 420 U.S. 923 (1975).
We turn to the respective statutes that are advanced as support for the action taken by the Court of Claims.
This Court recently had occasion to examine the jurisdiction of the Court of Claims under this statutory formulation. In United States v. King, 395 U.S. 1 (1969), the Court reviewed a decision (182 Ct. Cl. 631, 390 F.2d 894) in which the Court of Claims had concluded that it was empowered to exercise jurisdiction under the Declaratory Judgment Act, 28 U.S.C. 2201. This Court observed that the Court of Claims was established by Congress in 1855; that "[t]throughout its entire history," until the King case was filed, "its jurisdiction has been limited to money claims against the [424 U.S. 392, 398] United States Government"; that decided cases in this Court had "reaffirmed this view of the limited jurisdiction of the Court of Claims," and "the passage of the Tucker Act in 1887 had not expanded that jurisdiction to equitable matters"; that "neither the Act creating the Court of Claims nor any amendment to it" granted that court jurisdiction of the case before it because King's claim was "not limited to actual, presently due money damages from the United States"; and that what King was requesting was "essentially equitable relief of a kind that the Court of Claims has held throughout its history . . . it does not have the power to grant." 395 U.S., at 2 -3. The Court then went on to hold that the Declaratory Judgment Act did not grant the Court of Claims authority to issue declaratory judgments. Cited in support of all this were Glidden Co. v. Zdanok, 370 U.S. 530, 557 (1962) (Harlan, J.) (plurality opinion); United States v. Jones, 131 U.S. 1 (1889); and United States v. Alire, 6 Wall. 573, 575 (1868). See Lee v. Thornton, 420 U.S. 139 (1975); Richardson v. Morris, 409 U.S. 464 (1973); United States v. Sherwood, 312 U.S. 584, 589 -591 (1941).
The Tucker Act, of course, is itself only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages. The Court of Claims has recognized that the Act merely confers jurisdiction upon it whenever the substantive right exists. Eastport S. S. Corp. v. United States, 178 Ct. Cl. 599, 605-607, 372 F.2d 1002, 1007-1009 (1967). We therefore must determine whether the two other federal statutes that are invoked by the respondents confer a substantive right to recover money damages from the United States for the period of their allegedly wrongful civil service classifications.
B. The Classification Act. Inasmuch as the trial judge [424 U.S. 392, 399] proposed, App. 57, that the respondents were not entitled to backpay under the Back Pay Act, 5 U.S.C. 5596, and the Court of Claims held that there was no need for it to reach and construe that Act, 205 Ct. Cl., at 333, 499 F.2d, at 691, it is implicit in the court's decision in favor of respondents that a violation of the Classification Act gives rise to a claim for money damages for pay lost by reason of the allegedly wrongful classifications.
It long has been established, of course, that the United States, as sovereign, "is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S., at 586 . And it has been said, in a Court of Claims context, that a waiver of the traditional sovereign immunity "cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S., at 4 ; Soriano v. United States, 352 U.S. 270, 276 (1957). Thus, except as Congress has consented to a cause of action against the United States, "there is no jurisdiction in the Court of Claims more than in any other court to entertain suits against the United States." United States v. Sherwood, 312 U.S., at 587 -588.
We find no provision in the Classification Act that expressly makes the United States liable for pay lost through allegedly improper classifications. To be sure, in the "purpose" section of the Act, 5 U.S.C. 5101 (1) (A), Congress stated that it was "to provide a plan for classification of positions whereby . . . the principle of equal pay for substantially equal work will be followed." And in subsequent sections, there are set forth substantive standards for grading particular positions, and provisions for procedures to ensure that those standards are met. But none of these several sections contains an express [424 U.S. 392, 400] provision for an award of backpay to a person who has been erroneously classified.
In answer to this fact, the respondents and the amici make two observations. They first argue that the Tucker Act fundamentally waives sovereign immunity with respect to any claim invoking a constitutional provision or a federal statute or regulation, and makes available any and all generally accepted and important forms of redress, including money damages. It is said that the Government has confused two very different issues, namely, whether there has been a waiver of sovereignty, and whether a substantive right has been created, and it is claimed that where there has been a violation of a substantive right, the Tucker Act waives sovereign immunity as to all measures necessary to redress that violation.
The argument does not persuade us. As stated above, the Tucker Act is merely jurisdictional, and grant of a right of action must be made with specificity. The respondents do not rest their claims upon a contract; neither do they seek the return of money paid by them to the Government. It follows that the asserted entitlement to money damages depends upon whether any federal statute "can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." Eastport S. S. Corp. v. United States, 178, Ct. Cl., at 607, 372 F.2d, at 1009; Mosca v. United States, 189 Ct. Cl. 283, 290, 417 F.2d 1382, 1386 (1969), cert. denied, 399 U.S. 911 (1970). We are not ready to tamper with these established principles because it might be thought that they should be responsive to a particular conception of enlightened governmental policy. See Brief for Amici Curiae 9-11. In a suit against the United States, there cannot be a right to money damages without a waiver of sovereign immunity, and [424 U.S. 392, 401] we regard as unsound the argument of amici that all substantive rights of necessity create a waiver of sovereign immunity such that money damages are available to redress their violation.
We perceive nothing in the Regional Rail Reorganization Act Cases, 419 U.S. 102 (1974), cited by the amici with other cases centering in the Just Compensation Clause of the Fifth Amendment ("nor shall private property be taken for public use, without just compensation"), that lends support to the respondents. These Fifth Amendment cases are tied to the language, purpose, and self-executing aspects of that constitutional provision, Jacobs v. United States, 290 U.S. 13, 16 (1933), and are not authority to the effect that the Tucker Act eliminates from consideration the sovereign immunity of the United States.
Here again we are not persuaded. Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained, the basis of the federal claim - whether it be the Constitution, a statute, [424 U.S. 392, 402] or a regulation - does not create a cause of action for money damages unless, as the Court of Claims has stated, that basis "in itself . . . can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." Eastport S. S. Corp. v. United States, 178 Ct. Cl., at 607, 372 F.2d, at 1008, 1009. We see nothing akin to this in the Classification Act or in the context of a suit seeking reclassification.
The present action, of course, is not one concerning a wrongful discharge or a wrongful suspension. In that situation, at least since the Civil Service Act of 1883, the employee is entitled to the emoluments of his position until he has been legally disqualified. United States v. Wickersham, 201 U.S. 390 (1906). There is no claim here that either respondent has been denied the benefit of the position to which he was appointed. The claim, instead, is that each has been denied the benefit of a position to which he should have been, but was not, appointed. The established rule is that one is not entitled to the benefit of a position until he has been duly appointed to it. United States v. McLean, 95 U.S. 750 (1878); Ganse v. United States, 180 Ct. Cl. 183, 186, 376 F.2d 900, 902 (1967). The Classification Act does not purport by its terms to change that rule, and we see no suggestion in it or in its legislative history that Congress intended to alter it.
The case of Selman v. United States, 204 Ct. Cl. 675, 498 F.2d 1354 (1974), pressed upon us by the respondents, 6 if correct, if correct, is clearly distinguishable. The pay claims there rested flatly upon the mandatory provision contained in 37 U.S.C. 202 (l) to the effect that an officer "serving as Assistant Judge Advocate General of the Navy is entitled to the basic pay of a rear admiral (lower half) or brigadier general, as appropriate." [424 U.S. 392, 403] Neither the Classification Act nor the Back Pay Act contains any mandatory provision of this kind.
The situation, as we see it, is not that Congress has left the respondents remediless, as they assert, for their allegedly wrongful civil service classification, but that Congress has not made available to a party wrongfully classified the remedy of money damages through retroactive classification. There is a difference between prospective reclassification, on the one hand, and retroactive reclassification resulting in money damages, on the other. See Edelman v. Jordan, 415 U.S. 651 (1974). Respondents, of course, have an administrative avenue of prospective relief available to them under the elaborate and structured provisions of the Classification Act, 5 U.S.C. 5101-5115. The amici so recognize. Brief for Amici Curiae 13-15. Among the Act's provisions along this line are those requiring the Civil Service Commission to engage in supervisory review of an agency's classifications, and, where necessary, to review and reclassify individual positions, 5 U.S.C. 5110; allowing the Commission to reclassify, 5112; and allowing the Commission even to revoke or suspend the agency's authority to classify its own positions, 5111. Indeed, as the amici describe it: "[T]he Act is not merely a hortatory catalogue of high principles." Brief for Amici Curiae 15. The built-in avenue of administrative relief is one response to these statutory requirements. Review and reclassification may be brought into play at the request of an employee. 5 U.S.C. 5112 (b). And respondents, as has been noted, did just that. A second possible avenue of relief - and it, too, seemingly, is only prospective - is by way of mandamus, under 28 U.S.C. 1361, in a proper federal district court. In this way, also, the respondents have asserted their claims. See n. 5, supra.
The respondents, thus, are not entirely without remedy. They are without the remedies in the Court of Claims [424 U.S. 392, 404] of retroactive classification and money damages to which they assert they are entitled. Additional remedies of this kind are for the Congress to provide and not for the courts to construct.
Finally, we note that if the respondents were correct in their claims to retroactive classification and money damages, many of the federal statutes - such as the Back Pay Act - that expressly provide money damages as a remedy against the United States in carefully limited circumstances would be rendered superfluous.
Respondents cite Allison v. United States, 196 Ct. Cl. 263, 451 F.2d 1035 (1971), and Pettit v. United States, 203 Ct. Cl. 207, 488 F.2d 1026 (1973), as precedent for the remand order in this case. Those cases found the employees' "entitlement" to money damages in an Executive Order, and to that extent might be distinguishable from the instant case. But cf. Ogletree v. McNamara, 449 F.2d 93 (CA6 1971); Gnotta v. United States, 415 F.2d 1271 (CA8 1969), cert. denied, 397 U.S. 934 (1970); Manhattan-Bronx Postal Union v. Gronouski, 121 U.S. App. D.C. 321, 350 F.2d 451 (1965), cert. denied, 382 U.S. 978 (1966). To the extent, however, that Allison and Pettit rely on the concept that an admission of misclassification by an agency automatically gives rise to a cause of action for money damages against the United States, their reasoning is identical to the Court of Claims' reasoning in the instant case; and to the extent that analysis is now rejected, the analysis of Allison and Pettit is necessarily rejected. See also Chambers v. United States, supra.
C. The Back Pay Act. This statute, which the Court of Claims found unnecessary to evaluate in arriving at its decision, does not apply, in our view, to wrongful-classification claims. The Act does authorize retroactive recovery of wages whenever a federal employee has "undergone an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of all or a part of" the compensation to which the employee is otherwise entitled. 5 U.S.C. 5596 (b). The statute's language was intended to provide a monetary remedy for wrongful reductions in grade, removals, suspensions, and "other unwarranted or unjustified actions affecting pay or allowances [that] could occur in the course of reassignments and change from full-time to part-time work." S. Rep. No. 1062, 89th Cong., 2d [424 U.S. 392, 406] Sess., 3 (1966). The Commission consistently has so construed the Back Pay Act. See 5 CFR 550.803 (e) (1975). So has the Court of Claims. See Desmond v. United States, 201 Ct. Cl. 507, 527 (1973).
For many years federal personnel actions were viewed as entirely discretionary and therefore not subject to any judicial review, and in the absence of a statute eliminating that discretion, courts refused to intervene where an employee claimed that he had been wrongfully discharged. Compare Keim v. United States, 177 U.S. 290, 293 -296 (1900), with United States v. Wickersham, 201 U.S. 390 (1906). See Sampson v. Murray, 415 U.S. 61, 69 -70 (1974). Relief was invariably denied where the claim was that the employee had been denied a promotion on improper grounds. See Keim v. United States, 177 U.S., at 296 ; United States v. McLean, 95 U.S., at 753 .
In support of their contention that the Back Pay Act authorizes a claim in the situation here presented, respondents and amici cite only two cases other than the Court of Claims cases whose reasoning is directly in question here. Neither case supports the proposition. Walker v. Kleindienst, 357 F. Supp. 749 (DC 1973). (cited by respondents), addressed the issue of the retroactivity of the Equal Employment Opportunity Act of 1972. Ainsworth v. United States, 185 Ct. Cl. 110, 399 F.2d 176 (1968) (cited by amici), involved the rights of an employee who had been discharged and subsequently reinstated.
Neither of these cases provides a reason for doubting that the Back Pay Act, as its words so clearly indicate, was intended to grant a monetary cause of action only to those who were subjected to a reduction in their duly appointed emoluments or position.
We therefore conclude that neither the Classification Act nor the Back Pay Act creates a substantive right in the respondents to backpay for the period of their claimed wrongful classifications. This makes it unnecessary for us to consider the additional argument advanced by the United States that the Classification Act does not require that positions held by employees of one agency be compared with those of employees in another agency.
The Court of Claims was in error when it remanded the case to the Civil Service Commission for further proceedings. That court's judgment is therefore reversed, [424 U.S. 392, 408] and the case is remanded with directions to dismiss the respondents' suit.
[ Footnote 1 ] Title 5, 5101. "Purpose.
"(A) the principle of equal pay for substantially equal work will be followed . . . ."
[ Footnote 2 ] There is no suggestion that the plaintiff-respondents have not properly pursued and exhausted their administrative remedies.
[ Footnote 3 ] The decision of the Court of Claims in this case is not inconsistent, as to these issues, with other recent cases resolved by divided votes in that court. See Chambers v. United States, 196 Ct. Cl. 186, 451 F.2d 1045 (1971); Allison v. United States, 196 Ct. Cl. 263, 451 F.2d 1035 (1971); Small v. United States, 200 Ct. Cl. 11, 470 F.2d 1020 (1972); Pettit v. United States, 203 Ct. Cl. 207, 488 F.2d 1026 (1973). But see Applegate v. United States, 207 Ct. Cl. 999, 521 F.2d 1406 (1975); Roseman v. United States, 207 Ct. Cl. 998, 521 F.2d 1406 (1975); Kaeserman v. United States, 207 Ct. Cl. 983 (1975); Barnum v. United States, 207 Ct. Cl. 1024, 529 F.2d 531 (1975).
[ Footnote 4 ] Title 28 U.S.C. 1494 also grants the Court of Claims jurisdiction to determine the amount due from the United States "by reason of any unsettled account of any officer . . . of . . . the United States."
[ Footnote 5 ] The amici acknowledge that it is conceivable that the respondents will be able to obtain reclassification for the future through the mandamus action they instituted in 1971. See Testan v. Hampton, Civ. No. 71-2250 (ED Pa.). That suit apparently lies dormant subject to reactivation. The Government states that if respondents proceed with the action, the United States "will not contest the district court's jurisdiction to entertain respondents' claim for prospective equitable relief." Reply Brief for United States 17 n. 7.
[ Footnote 6 ] Brief for Respondents 12; Tr. of Oral Arg. 25-28.
[ Footnote 7 ] The committee reports relating to Pub. L. 92-415 expressly confirm the understanding that the remand statute "does not extend the class of cases over which the Court of Claims has jurisdiction." S. Rep. No. 92-1066, p. 1 (1972); H. R. Rep. No. 92-1023, p. 3 (1972).

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(1) These General Business Terms shall apply to contracts between SPI GmbH and the customer for acquisition of software and for contracting of personnel services. A contract is executed when SPI GmbH received the customer's purchasing order. Until that date, the buyer is not authorized to use the software. With his purchasing order, the customer acknowledges the exclusive rule of these General Business Terms. Terms of the customer that collide with or differ from these terms are excluded.
(2) All agreements defined between us and the buyer on performance of this contract are defined in writing in this contract.
(3) Our terms of sales apply only to entrepreneurs as defined in §§ 14, 310 par. 1 BGB (= German Civil Code).
(4) The quality, the contractual scope of service of the software, and the released application environment result from the related program specification unless otherwise agreed. The software shall be delivered in executable form (as an object program).
(5) All support services of SPI GmbH or its service providers requested by the buyer (in particular preparation of application, installation and demonstration, instruction, training and other consulting) shall be compensated per effort.
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(2) Trainings shall be given within 6 months upon the customer's purchasing order. SPI shall propose three possible dates. If these dates cannot be kept, the customer is obliged to propose other dates. If the customer fails to take training within the defined period, the full training price shall be due for payment. In any case, the full invoice amount shall be due at the beginning of the first day of training. If on the other hand SPI does not give the ordered training although contracted, the customer may rescind from the order for the training. SPI shall fully refund to the customer any payments the customer already made which are not balanced by training services from SPI.
(3) Prices are valid within the Federal Republic of Germany plus freight costs related to the order, and plus VAT in the rate as enforced at the date of invoicing. The purchasing price shall be due within 10 days of date of invoice without any deductions.
(4) SPI is entitled to charge interest, in the commercial business transactions as of due date, otherwise as of default, in the amount of 5% above the basic interest rate as defined under §247 / §288 BGB.
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(3) If the buyer is in default with acceptance, or otherwise by fault breaches his support duties, we shall be entitled to claim compensation of damage incurred in so far, including any additional expenses. We reserve further claims.
(3) are given, the risk of accidental loss or accidental deterioration of the purchasing object passes to the buyer from the date since which the buyer is in default with acceptance or payment.
(5) We shall be liable according to the legal provisions, in as far as the underlying purchasing contract is a fix business as defined under §286 par. 2 no. 4 BGB or of § 376 HGB (German Trade Code). We are also liable according to the legal regulations in as far the buyer is entitled to assert that his interest in further contract performance is redundant due to default of delivery by our fault.
(6) We shall also be liable according to the legal provisions, in as far as the delivery default is due to intentional or grossly negligent breach of contract by our fault. Fault of our representatives or agents shall be considered our fault. In as far as the delivery contract is not due to an intentional breach of contract by our fault; our liability for indemnification of damages shall be limited to the predictable, typically occurring damages.
(7) We shall also be liable according to the legal provisions in as far as default of delivery is due to breach of essential contract duty by our fault, in which event the liability for indemnification of damages shall be limited to the predictable, typically occurring damages.
(8) Otherwise we shall be liable in the event of default of delivery for every full week of default with a flat-rate default compensation of 3% of the delivery value, however limited to no more than max. 15% of the delivery value in total.
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SPI shall be entitled to make split deliveries of the owed services. Payment terms in section 2 shall be applied likewise.
(1) If the buyer cancels or modifies a purchasing order and this leads to a delay in the delivery, the buyer is obliged to pay upon request of SPI 5% of the related order value to compensate SPI for incurred costs if the cancellation or modification of the order takes place less than 75 days before the delivery date defined in the order acknowledgement.
(2) We reserve the right of asserting further damages. This shall not prejudice the right of the buyer to prove the damage is much lower, or that no damage occurred.
The risk passes to the buyer upon shipment of the goods by SPI.
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(2) The buyer shall be obliged to treat the purchasing object with caution and care. In particular he shall be obliged to insure them sufficiently at acquisition value upon his own cost and account against fire, water and theft damages.
(3) In case of pledging or other third party intervention, the buyer has to notify us immediately in writing so that we can file suit according to §771 ZPO (German Civil Proceedings Code). If the third party is not able to compensate us for the costs of a suit in an out of court according to §771 ZPO, the buyer shall be liable for our loss.
(4) The following applies to SPI GmbH own products (SPI-programs): The buyer is entitled to resell the purchasing object in the normal course of business, this means the buyer may grant a third party the right to use the software according to section 11 (right of using the software) but only if the buyer fully waives use of the software. In case of resales according to lines 1 and 2, the buyer herewith already assigns to us all claims in the amount of the invoice total (including VAT) of our receivable which fall to him from resale to his customers or third parties, regardless whether the purchasing object was resold with or without further processing. The buyer remains entitled to collect this receivable even after assigning it. This shall not prejudice our right of collecting the receivable. However we agree not to collect the receivable as long as the buyer fulfils his purchasing obligations from his collected earnings, is not in payment default, and in particular no applications for opening of composition or insolvency proceedings have been filed, and payments have not been ceased. In which event we may claim that the buyer discloses to us the assigned receivables and their debtors, gives all information needed for collection, forwards all related documents, and informs the debtors (third parties) of the assignment.
(5) The right of resales of the software does not apply to foreign programs developed by a software supplier/provider not affiliated to SPI. Instead, the special terms of that supplier/provider shall apply.
(6) Processing or reconstruction of the purchasing object by the buyer shall always be made for us. If the purchasing object is processed with other objects which are not our property, we acquire co-property (total invoiced amount, including VAT) in the ratio of the value of the purchasing object to the other processed objects at the time of processing. The object created by processing is otherwise subject to the same terms as the purchasing object delivered under property reservation.
(7) If the purchasing object is inseparably combined with other objects which are not our property, we shall acquire the co-property of the new object in the ratio of the value of the purchasing object (invoiced total including VAT) to the other combined objects at the time of combining. If the combination is so that the object of the buyer has to be considered the main object, it shall be agreed that the buyer assigns to us proportional co-property. The buyer shall safeguard the thus created sole property or co-property for us.
(8) To secure our claims against him, the buyer also assigns to us his receivables against third parties which are created by attaching the purchasing object with a piece of land.
(9) We agree to release securities to which we are entitled quid pro quo as the realizable value of our securities exceeds the receivables to be secured by more than 10%. Selection of the securities to be released is in our sole discretion.
(10) In as far as the buyer is provided with programs, software, interfaces etc. as foreign products only against compensation of distribution costs (duplication costs, postage etc.); SPI assumes no warranty or liability whatsoever.
(1) Defect claims by the buyer are subject to the condition that he properly fulfilled his obligations of examination and complaint owed under §377 HGB (German Trade Code).
(2) In as far as there is a defect in the product, the buyer is entitled to remedy in his own discretion either by way of elimination of defect or by delivery or a new object free of defect. In case of elimination of defect we are obliged to bear all costs, in particular transport costs, travel costs, labour and material costs necessary for the purpose of elimination of damage, provided these costs are not increased by the purchasing object having been transferred to a place other than the place of performance.
(3) If remedy fails, the buyer is entitled in his own discretion to claim rescission or reduction of price.
(4) The buyer may claim defects only if reported damages are reproducible or if the buyer can otherwise prove them.
(5) The time-limitation for defect claims is 12 months starting with the passage of risk. The warranty period shall generally begin with the delivery of the goods to the buyer. The following applies to products installed by SPI: the warranty period begins upon notification of readiness for operation.
(6) This shall not prejudice the time-limitation period in case of delivery recourse according to §§ 478, 479 BGB. It shall be five years starting with delivery of the defect object.
(7) SPI agrees to correct software errors which impair the contractual use more than negligibly in the discretion of SPI, and depending on the relevance of the error, by installation of an improved software version, or by giving instructions for elimination or by-passing the effects of the error. SPI assumes no warranty that the software runs free of interruptions or errors, or that the functions included in the software can be run in all combinations the buyer selected, and fulfill his requirements. Any warranty is excluded in as far as the buyer or any third party makes any modifications or repairs on the goods, or handles the goods incorrectly.
c) for damages from hurt of life, body or health in the responsibility of SPI, its legal representatives or agents.
(2) SPI GmbH shall not be liable for slight neglect unless this breached an essential contract duty (cardinal duty). For material and property damages, this liability shall be limited to the predictable damage typical for this kind of contract. Liability for consequential defect damages shall be excluded. Liability is limited per case to the contract value, for ongoing compensation to the amount of compensation per contract year, but not to less than €50,000. The claims shall be forfeited after one year of the legal beginning of the time-limit. This section (2) shall not prejudice liability according to section (1).
(3) In as far as the buyer has claims for compensation of damage instead of performance; the liability of SPI GmbH shall also be limited to compensation of the predictable damage typical for this kind of contract.
(4) In as far as indemnification liability towards SPI GmbH is limited or excluded, this shall also apply to the personal indemnification liability of the employees, workers, associates, representatives and agents.
(5) Otherwise liability is excluded.
(1) In case of infringement against German commercial protection rights (including copyrights) due to the use of any SPI-product, SPI shall indemnify the buyer from (indemnification) claims of the holder of the protection right. SPI shall furthermore generally obtain the right of further use of the product for the buyer. If this is not possible under reasonable economic terms, SPI shall in its own discretion modify or replace the product in a way that does not infringe against the protection right, or take back the product and refund the purchasing price that had been paid to SPI reduced by an amount considering the age of the product.
(2) The aforementioned obligations of SPI apply only if the buyer notifies SPI immediately of all claims asserted against him, all defence activities including out-of-court settlements remain reserved for SPI, and the protection right is not infringed by modification of a product delivered by SPI, or use in any way not specified in SPI-publications, or used with products not delivered by SPI. This regulation includes, with the reservation of section (8), all obligations of SPI for claims related to infringements against commercial protection rights.
(1) A non-exclusive, non-assignable right of utilization for internal use together with the products for which the programs are delivered is granted to the buyer for the SPI-programs, the related documentations and the after-sales add-ons (all other rights in the programs and documentations including the copies and after-sales add-ons remain vested in SPI or the software provider).
(2) SPI GmbH grants to the buyer a non-exclusive, non-assignable right of utilization of foreign programs (programs developed by a software supplier/provider not affiliated with SPI), while the buyer agrees additionally to comply with the related special terms of the supplier/provider for the use of this software.
(3) The buyer has to warrant that these programs and documentations are not accessible to third parties without prior written approval from SPI GmbH.
(4) Copies may only be made for archiving purposes, as replacement or for troubleshooting. Sections 1 and 2 apply likewise. Supply of source programs is subject to separate written agreement. If the originals are labelled with a copyright disclaimer, the buyer has to attach this disclaimer also on the copies. Unless otherwise agreed, or not otherwise defined in the terms of the suppliers/providers, the right of use shall be considered granted with acknowledgement of order and delivery of the programs, documentation and after-sales add-ons.
The buyer may assign his rights and duties resulting from the contract only with written approval from SPI. He may set-off or assert withholding rights against SPI only if the counter-claim of the buyer is undisputed or legally valid. These terms of delivery and payment remain valid as such even if any individual stipulation is void. Place of performance and place of jurisdiction for all contractual claims and claims related to the attached contract is Ahrensburg provided the buyer is a business. SPI on the other hand is entitled to assert claims also at the court that is competent for the place of residence or sojourn of the buyer.


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On November 13 at 4 pm Division of Literature in Art of National Library of Udmurt Republic (Kamskiy Institute of the Humanities and Engineering Technologies: V. Sivkova, 12a, room 224) is hosting the opening of the exhibition “Golden Ratio: An Inquiry into the Nature of Harmony”.
“The golden ratio” or “the divine proportion” is one of the most striking representations of structural and functional perfection of the whole and its parts in nature, science and art. The phenomenon of “the golden ratio” has excited mathematicians and philosophers since the ancient times (Pythagoras, Plato and Euclid). In the times of the Renaissance the “golden ratio” developed into a major aesthetic principle (Leonardo da Vinci). In the 19th century German scientist Adolf Zeising and his followers claimed to have found “the golden ratio” in the arrangement of human body, plants, minerals and musical harmony. The 20th century witnessed a new wave of interest to the phenomenon, particularly from astrophysics, biology, psychology and computer science.
The first section of the exhibition – “Golden Ratio: The Search of Absolute Harmony” – comprises books by outstanding artists, thinkers, scientists of the past and present on the manifestation of science in art – i.e. on mathematical context of “the golden ratio” applicable to architecture, painting and other spheres (Leonardo da Vinci “Collected Works”, A. Dürer “Treatises”; A. V. Voloshinov “Mathematics and Art”, I.S. Shevelev “The Golden Ratio”, V. L. Glazychev “Copernicus's Gem: the World of Science in Art” etc.).
The second section of the exhibition – “Ideal Proportions in Nature” – is dedicated to the imitation of natural forms (structures of plant and animal world) for the purpose of reaching perfection and self organization in architecture (N. A. Vasyutinskiy “The Golden Proportion”; V. E. Mikhaylenko, A. V. Kashchenko “Nature – Geometry – Architecture”; Y. Lebedev “The Harmony of Forms in Wildlife”, “Architecture and Bionics”).
The third section of the exhibition – “Aesthetics of Proportions in Art” – displays scientific publications on the occurrence of “the golden ratio” in works of art: examples of paintings, musical and literary compositions proportioned to approximate “the golden ratio” (F. V. Kovalev “The Golden Ratio in Painting”, M. A. Marutaev “On Harmony of the Universe” etc.).
The opening of the exhibition is going to be participated by Candidate of Physical and Mathematical Sciences Sergey Pakhomov who will speak on the principles of morphogenesis in nature and on aesthetics of proportions in art. The “divine proportion” in music will be authoritatively explained by the eminent violinist Kseniya Blagovich. The “golden ratio” in poetry will be addressed by the librarian of the Center for the Book of the National Library of the Udmurt Republic Marina Ryabushenko.

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La presente informativa ha lo scopo di definire la gestione della privacy in riferimento al trattamento dei dati personali degli utenti del sito www.pumfactory.it sia per coloro che vogliono fruire dei servizi per i quali è necessaria la registrazione sia per coloro che non intendano registrarsi.
Tale informativa è conforme a quanto prescritto dall’art. 13 del D. Lgs 196/03 – Codice in materia di protezione dei dati personali da Pum Factory in qualità del Titolare del trattamento dei dati personali.
Pum Factory è tenuta a fornire ai propri utenti alcune specifiche informazioni in merito alle modalità e finalità di utilizzo dei dati personali degli utenti.
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Union members rallied at Foley Square on Feb. 24 before the Supreme Court began hearing a case that will determine the future of organized labor.
Days before the nation’s highest court began hearing a landmark case that could decimate public-sector unions, thousands of union members rallied in Foley Square on Feb. 24 to plead the case for organized labor.
A decision against the unions in Janus v. AFSCME would throttle the voice of their members, warned Gov. Andrew Cuomo, when he addressed the rally.
Mayor de Blasio, State Attorney Eric Schneiderman, and several union leaders also addressed the Downtown rally, which coincided with pro-union rallies across the country ahead of the pivotal high court case.
Hanging in the balance are the “agency fees” that many states allow public-sector unions to collect from non-members to cover the cost of collective bargaining activities that determine the pay and benefits of members and non-members alike.
“This would kill the life of unions,” said Andre Johannes an inspector for the city’s Department of Health for more than 20 years, who fears that without a strong union bargaining for him and his co-workers, he would have the same quality healthcare benefits.
Janus v. AFSCME pits an Illinois social worker, Mark Janus, who works in the state’s Department of Healthcare and Family Services, against the American Federation of State, County and Municipal Employees. Janus argues his First Amendment rights are being violated when he’s required to pay dues to the union, as he does not always agree with what the union is doing.
A win for Janus would overturn the precedent set more than 40 years ago in Abood v. Detroit Board of Education, which established that public sector unions could charge non-members a fee to cover collective bargaining activities — though not political contributions — since non-members directly benefit from the unions’ negotiations on behalf of all employees.
Union leaders warn of a “free-rider effect” if agency fees are abolished, in which an ever-higher proportion of workers opt not to join unions to avoid dues, because they know they will still benefit from the work the members are paying for. One union head jabbed Janus for taking union benefits he’s not willing to pay for.
Cilento pointed out that Janus agreed to work for the state of Illinois knowing that the employees were unionized, yet now he doesn’t want to pay the dues.
Cilento also argued that the Janus v. AFSCME case was less about one state worker’s freedom of speech than it is a part of a long-running and well-funded campaign by conservative business interests to destroy organized labor in America.
This is actually the second recent Supreme Court case seeking to end union agency fees. Two years ago, Friedrichs v. California Teachers Association brought the same challenge, but the sudden death of Justice Antonin Scalia just a month before the case was decided left the court evenly divided 4-4. Assuming the justices haven’t changed their minds on the question, the deciding vote in Janus v. AFSCME will fall to Trump appointee Neil Gorsuch.
Workers from many different unions turned out in solidarity with public-sector unions.
New York State has the highest percentage of union membership in the country, according to the Bureau of Labor Statistics, and a variety of unions and labor organizations turned out for the rally — not just public-sector unions.
Looming over the Saturday rally nearly as much as the Supreme Court case was an ongoing private-sector union dispute.
Workers for cable company Spectrum have been on strike for nearly a year after the company refused to negotiate with their union. More than 1,800 workers with Local 3 of the International Brotherhood of Electrical Workers have been waiting for Spectrum to negotiate a new contract with them for two years. And union boosters who turned out for the Foley Square rally said they saw the Supreme Court case as a harbinger for the fate of all of organized labor.
“If they lose, we all lose,” said John McSpedon, a retired electrician who came to the rally with his nephew, Danny Lyons, in solidarity with the Spectrum employees and public-sector union members.
Union advocates see Janus v. AFSCME as an existential attack on organized labor, making it more likely for non-members to opt out of all dues while still enjoying union benefits. The effect would be plummeting membership, and as a result, funding, kneecapping union’s ability to advocate for workers and increasing the power of big business to levels not seen since the Gilded Age.

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