Re: Shrink Wrap my EULA ?

From: Kelly (kelly_at_mvps.org)
Date: 02/11/05 

Date: Fri, 11 Feb 2005 02:34:01 -0600

Hi Mike,

Great to see you here. :o) 

-- 
All the Best,
Kelly (MS-MVP)
Troubleshooting Windows XP
http://www.kellys-korner-xp.com
"Mike Brannigan [MSFT]" <mikebran@online.microsoft.com> wrote in message 
news:%2362lwKBEFHA.2288@TK2MSFTNGP14.phx.gbl...
> 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
>
> Please note I cannot respond to e-mailed questions, please use these
> newsgroups
>
> "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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