Windows refund: stymied

[Herb Richter]

On Thu, 28 Aug 2003, Ian Goldberg wrote:

> I spent all afternoon on the phone with Dell.  It turns out the Windows
> refund issue didn't even come up, because (get this), when you boot the
> computer, you're presented with a *Dell* screen that forces you to say
> you've read and agreed to all the EULAs for the software on the system.
>
> Trick is, they don't give them to you.
>
> No one at Dell seemed perplexed by this.  I was being forced to say I've
> read agreements I don't have.  So we didn't even get to the bit where I
> could point to the "refund" clause in the Windows EULA, since I was
> never presented with it in the first place.
>
> The whole story:
>
> http://www.cypherpunks.ca/dell.html
>
> This is the next level above "click-through" licenses. Now, they figure
> no one reads the EULAs anyway, so why bother even providing a copy?
> They'll click "I've read and agreed" anyhow.


I think another course will work / would have worked better...

<IANAL>
Depending on a few possible "gotchas"(1), and notwithstanding your "all
afternoon on the phone with Dell", you should be better off taking the
position that though you preferred not to have any windows on the machine,
you decided that you that you might be able to utilize windows (ie with
dual boot) and you really do *need* the computer running now(2), but upon
viewing the windows eula you found terms that you could not agree to and
that you then had to continue on and install Linux but with no working
windows(3).

This (probably) leaves the situation that you have a contract with Dell
where they are obligated to supply a working computer but cannot without
you agreeing to a second contract (the eula).  Unless the original
contract was clear that further terms and or conditions existed and that
those terms and conditions were available for your perusal somewhere
convienant *and* that they contained no unusual or unexpected terms(4),
the terms of the eula would not form part of the first contract. Because
"a contract to contract is not a contract", the first contract cannot
require you enter into another future contract.  The first contract
(probably) existed and was binding upon both parties before the machine
was actually received.

(1) ...in your original conversation with the sales people and disclaimers
    or notices presented during the order process or on the final invoice
    (if displayed before you agreeded to complete the purchase).
(2) assuming that it can be said that you were thinking this at the time.
(3) your position would likely be better if Linux were not yet installed.
(4) unless any unusual or unexpected terms were explained to you.
</IANAL>

As a business man I would now ask Dell how they intend to deliver a
working computer?  What provisions or policies do they have to deal with
such a situation?  Will they refund all your money plus compensation for
your time and any other expenses and arrange for the pickup of the
machine.  Or will they agree to your offer to accept compensation for the
value of the un-usable OS (windows) included in the purchase price?

If not - I would think you would have a good shot in small claims court
naming both Dell and MS as defendants.


BTW, I see a very interesting situation here:  if in fact the two
contracts are separate and the first cannot bind the buyer to agree to
the second; can the buyer end up with a "legal" instance of the OS without
being obligated by the eula?

-- 

        Herb Richter  <hgr-FjoMob2a1F7QT0dZR+AlfA at public.gmane.org>
        Toronto, Ontario
        http://PartsAndService.com
        http://PartsAndService.ca



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