Re: Shrink Wrap my EULA ?

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

Date: Fri, 11 Feb 2005 08:58:19 -0000

"Kelly" <kelly@mvps.org> wrote in message
news:us%239rRBEFHA.3596@TK2MSFTNGP12.phx.gbl...
> Hi Mike,
>
> Great to see you here. :o)
>

I was going to stay off this topic as no good ever comes of it - as you can
see all the usual suspects have piled on already :-(

Anyway just thought I swing by out of the x64 group for a quick parse
through :-) 

-- 
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
"Kelly" <kelly@mvps.org> wrote in message 
news:us%239rRBEFHA.3596@TK2MSFTNGP12.phx.gbl...
> 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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