Re: Shrink Wrap my EULA ?

From: Mike Brannigan [MSFT] (mikebran_at_online.microsoft.com)
Date: 02/11/05 

Date: Fri, 11 Feb 2005 08:20:55 -0000

Your right to decline the EULA also occurs during install - that is why we
present it to your then.
You may refuse to accept it and the install will be cancelled. 

-- 
Regards,
Mike
--
Mike Brannigan [Microsoft]
This posting is provided "AS IS" with no warranties, and confers no
rights
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"Vanguard" <use_ReplyTo@domain.invalid> wrote in message 
news:woGdnfuHh_GsuZHfRVn-tw@comcast.com...
> "Woody" <Woody@ByteMe.com> wrote in message 
> news:O03w7B%23DFHA.1600@TK2MSFTNGP10.phx.gbl...
>> no , this MS certified reseller , did not . since when have you ever seen
>> any do so ?
>>
>> and since when should I have to purchase a product , get it home , 
>> install
>> it then find out there are limitations to how I can use it ?
>>
>> it says NOWHERE on the outside that I am limited in my use of it
>> !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
>>
>>
>> wanna see ?
>>
>>
>
>
> The seller doesn't need to know all what they buyer know or what they 
> don't know.  They have to assume that you know what you are buying.  If 
> you go to the tire dealer and say you need Brand X with certain dimensions 
> then that is the tire they sell regardless that you really didn't know 
> that particular tire would not fit on your car.  It's not up to them to 
> educate you on the product that YOU chose to purchase from them.  They 
> sell.  It's not their job to educate, too.
>
> You have the right to refuse the EULA.  Since the EULA is not physically 
> presented beforehand (by letting you read it on the side of the box or on 
> a separate *** included with the product then contract law still permits 
> you as a party to the contract to refuse the terms of such.  For contracts 
> that are presented only after opening the package, like the EULA is inside 
> the shrink-wrapped package and not visible in its entirety through the 
> transparent shrink-wrap, or when only presented as an installed file or 
> during the installation, you still have the legal right to refuse the 
> contract and demand remuneration.  I brought this up to our legal 
> department regarding the EULA being inside the sealed package and 
> invisible to the user before they opened the package, yet the EULA stated 
> that opening the package was confirmation of acceptance of the contract. 
> Our product is far higher priced than Microsoft's consumer-grade software 
> offerings and we didn't want such expensive returns or consternation by 
> our customers regarding what they were buying, so packaging was changed so 
> the EULA was visible through the shrink-wrap and all of it was contained 
> on one side of the paper thus nothing of it was hidden.
>
> I have returned products to their manufacturers, one of which was 
> Microsoft, due to my refusal of their terms in their contract (i.e., EULA) 
> and received back my monies (less the sales tax since that is not their 
> responsibility nor does any part of it return to them).
>
> I have never purchased a pre-built computer so I'm not sure what, if 
> anything, the jobber that builds the box needs to provide the customer 
> that buys the box regarding disclosure of any software that was 
> pre-installed.  Again, it is not their job to educate their customers but 
> sell the customer what they asked for that the seller provides.  If you 
> wanted an OEM version that included all the license documentation, the 
> cardboard wallet, and other materials in the OEM package then you need to 
> buy a *retail* version of the OEM package and not the jobber's bulk 
> version that doesn't include all the fluff.  If instead you had actually 
> bought a separate retail copy of the OEM version of Windows, you should've 
> gotten the paper copy of the EULA along with the sticker (usually on the 
> shrink-wrap) for the product key.  Just saying you got an OEM version 
> really doesn't say what you got.
>
> You mentioned getting a shrink-wrapped "booklet".  Then that should have 
> included the paper *** for a hardcopy of the EULA.  That's what comes in 
> every retail OEM version that I get.  However, you make it sound like only 
> the OEM version restricts you to installing it on only 1 computer. That is 
> a requirement for ALL versions of Windows.  The OEM version adds the 
> restriction that the license for an OEM version of Windows *must* stay 
> with the computer on which it is first installed; i.e., the OEM version is 
> permanently tied to the hardware which qualified its purchase.  If you 
> read the EULA carefully, it need not be the entire computer which is the 
> qualifying hardware.  An IDE or SATA cable is sufficient as qualifying 
> hardware to obtain the OEM version, so just move THAT hardware to whatever 
> computer on which you want to run THAT license of Windows.  But you can 
> only run the 1 license that you got on 1 computer and that is true of all 
> versions of Windows, OEM or not.
>
> You're just pissed that you cannot legally buy one copy of Windows and use 
> it on every home computer that you own.  You've always had to buy N 
> licenses for N computers.  Being OEM has nothing to do with that.  You 
> could buy a retail FULL (non-OEM) version of Windows and you *still* only 
> get to install it on one computer.  Since you claim the paper copy of the 
> EULA was not in the booklet containing the OEM materials and since you 
> disagree with the EULA presented during installation or readable from the 
> install CD, call Microsoft to arrange a return. However, since you choose 
> to skip the EULA and install the software anyway, you agreed to the EULA. 
> You skipping it is no different than you not reading the loan contract and 
> just blindly signing your name. The law doesn't care about your choice to 
> remain ignorant and it comes back to "You signed the contract voluntarily 
> so it is irrelevant that YOU *chose* not to read it."  The retailer that 
> sold you the software doesn't have to accept the return (and probably 
> won't except for defective installation media which qualifies it as 
> defective merchandise) because the EULA is a contract between you and 
> Microsoft, not between you and the retailer.
>
> "and since when should I have to purchase a product , get it home , 
> install it then find out there are limitations to how I can use it ?". 
> Never bought any software before?  It's been that way for ages.  By the 
> way, it is rare that you "then find out" after an install.  Any software 
> that enforces a contract must legally present it to you beforehand (which 
> may be in hardcopy form or displayed at a point during the installation 
> where the user can then choose to abort the install without any changes 
> made to their system).  Again, just because YOU elected to not bother 
> reading the EULA during the installation is not Microsoft's fault for your 
> laziness.  Yeah, it is a pain to read those contracts.
>
> So, have you yet bothered to read the terms in the contract you made with 
> your credit card company?  Do you actually read ALL of the contract when 
> you signup for automobile or home insurance?  Self-elected ignorance may 
> be bliss but it doesn't absolve you of your legal obligations.  If you 
> have read the EULA beforehand or at the start of the installation and 
> disagreed with it (so you never installed it) then you can return it 
> because you, as a party that must agree to the contract, can legally 
> reject the terms of that contract.  You probably don't even have to prove 
> that the software is no longer on your computer but you will lose the 
> legal right to use the software if you reject its terms and return it. 
> Call Microsoft, tell them that you reject the terms of their EULA, ask for 
> return procedures, and go get something else, like Linux (and read its 
> user agreements).
>
> -- 
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