Software EULA licence/contract dispute

[Rainmaker]

Hi guys,

 

While building my latest PC at the end of last year, I purchased Kasperky Internet Security 2009 (OEM) to go with it. The cost was around £15 from an online retailer, and the licence covered use by up to 3 PCs at a time.

 

Now that the new version (2010) is out, and much improved I should add, I was thinking of upgrading. I downloaded the new version, installed it, and it refused to accept my existing activation code!

 

Kaspersky told me that I needed to buy a new 12 month licence, even though I had several months remaining on my present one. It's because, they said, the code I was given when I paid my money last year was NOT for the 2009 version as advertised, but for version 6 (much older) and these codes were not recognised by version 2010 as valid.

 

I thought I should check the EULA, as this (according to a paper insert warning in the cd case) constitutes a legally binding contract between the software vendor and the user. Lo, the referenced contract (EULA) states that:

 

2. Support.

(i) Kaspersky Lab will provide you with the support services

(“Support Services”) as defined below for a period specified in

the License Key File (service period) and indicated in the

"Service" window, from since the moment of activation...

 

(iii) “Support Services” means:

(a) Regular updates of the anti-virus database;

(b) Updates of network attacks database;

© Updates of anti-spam database;

(d) Free software updates, including version upgrades;

Emphasis my own. I take this to mean that one receives free 'updates' (daily virus database definition updates), as well as software version upgrades (clause 'd'). Kaspersy quickly wrote back and told me that this applied to retail license holders only (the more expensive "shop price" licence).

 

This would be fine, except the disc I purchased (or rather the disc that came with my purchase of the 12 month licence) contained a PDF on the actual disc itself. This PDF was the EULA as quoted above, and the disc is a special OEM-only issue (i.e. it's not "retail or OEM depending on how much you pay"). In other words, this EULA agreement/contract is clearly intended for us OEM customers!

 

Kasperky was having none of it, so I wrote to them thus:

 

Dear Sir or Madam,

 

The complaint:

 

Further to our recent correspondence regarding free upgrades between Kaspersky Internet Security ("KIS") 2009 and KIS 2010 for OEM license holders, as laid out in the EULA accompanying said product. I have had no acknowledgement or response to my last email, asking that this matter be referred to a higher authority within the company for adjudication/intervention.

 

Therefore, having today spoken with Trading Standards and having sought legal advice, please take notice that:

 

1) Pursuant to the Sales of Goods Act 1979 as amended, The Sale and Supply of Goods to Consumers Regulations 2002 and others, I feel that the software and service supplied to me by Kaspersky Lab (via a retail channel, namely XXXXX Ltd trading as XXXXXXXXXXXXXXX) has been misrepresented.

 

2) The contract/End User License Agreement ("EULA") was deemed by both parties at the point of sale and subsequent installation to constitute a binding written agreement (contract) between us. Section 2(iii)(d) of that EULA states that for the duration of the OEM license (12 months) software updates and upgrades will be provided by Kaspersky Lab free of charge. This is quoted in the attached correspondence for your reference.

 

3) Kaspersky Lab (through its agent Lxx Rxxxxxx - correspondence attached) are now refusing to honour this part of our agreement. Without prejudice to any tort issues / contractual disputes, which I may choose to pursue through the County Courts at a later date, please take notice that having sought legal advice today from Consumer Direct and Trading Standards, you are deemed to be in breach of the legislation laid out in (1).

 

Suggested remedy:

 

Please supply, on or before Monday 13th July 2009, a valid activation code for Kaspersky Internet Security 2010 in order to allow me to have full use of the remainder of my license (expiring January 2010) using the latest version of the software. You may of course invalidate any previous code applicable to the KIS2009 product once this is completed. Further or in the alternative, you may - by way of alleviating my actual liquidated losses - supply me with a refund of the remaining pro rata cost of the OEM license so that I might take my future business to a competitor.

 

Pursuant to the Sales of Goods Act, had all the applicable information been available to me at the time of sale/acceptance of the EULA (i.e. that despite written assurances to the contrary, Kaspersky does NOT wish to supply upgrades to OEM customers) I would certainly not have entered into the contract by purchasing and installing your software, and would have instead taken my business to a competitor. Kaspersky's misrepresentation has directly led to a loss of service as a result.

 

I am very sorry that we have not been able to resolve this issue sooner or more amicably (as I said in several of my previous correspondences, I would have thought you would have honoured this out of sheer customer service if nothing else). You have left me with no alternative remedy. Should the terms above not be fulfilled by Monday 13th July 2009, I will inform Trading Standards with a view to instigating legal action against you. For your records, the Consumer Direct (Office of Fair Trading and Trading Standards) reference number for this case is NWxxxxxx.

 

Yours faithfully,

 

Their reply states that company policy doesn't "allow" them to provide free upgrades as (1) I have an OEM licence and (2) the activation code given to me (my licence) was for the old version 6 not 2009 (even though I paid for version 2009 and the package says version 2009!). They further state are not willing to consider the terms of the EULA/contract between us! I should, they say, simply pay for another 12 month OEM license and forfeit the money I already paid if I want to upgrade.

 

The thing is, the new 2010 version is more expensive (listed at £14.98 for ONE PC only). I'd have to buy 3x licenses to cover me (last year's licence was for three PCs remember). That's £44.94 PLUS the monies lost on this existing licence just to get my (according to our contract) FREE upgrade.

 

Consumer Direct say to issue into the small claims court, and that's fine. But I've only ever issued bank charges N1s before now. Any advice please? I presume I'm asking the court to please issue a directive to clarify the contractual dispute, that I the claimant am seeking either the ability to use my original paid-for licence in the 2010 version (as per our contract) OR else be provided with the cash alternative from the defendant as that'd be my costs to upgrade if they won't play ball?

 

Any suggestions and help gratefully received. Many thanks in advance.

[legalpickle]

Your claim is NOT against Kaspersky but against the retailer. Under SOGA the retailer is liable, NOT the manufacturer.

 

I suggest you draft an LBA to the retailer, post it up here - minus any confidential details - and I'll try to proof it for you.

[BSC]

Do you bank with Barclays? They offer it for free for all customers that use online banking.

[Rainmaker]

BSC, neither I nor anybody I know banks with Barclays.

 

legalpickle, the SOGA was the tactic Consumer Direct advised at first. They've since told me there's nothing they will do, Trading Standards aren't interested, and I should just take them to County Court as a contractual dispute instead.

 

The contract is between Kaspersky Lab and myself, not the retailer. They simply sold the licence, which I received, so afaik they're OK. I wouldn't really want to sue the retailer anyway - they're a decent company with a strong community (of which I'm part) behind them.

 

So, contractual dispute it is. I was thinking I'd file an N1, stating the terms of our agreement has been breached and as a result I'm going to be out of pocket to the tune of £44.94, and ask that the judge either provide judgment in my favour for the upgrade (enforcing the original contract) or else award the sum of £44.94 for the new licence. Does that sound correct?

 

EDIT: I'm attaching the user guide, which has the user agreement (EULA) right at the end. The PDF file forms part of the Kaspersky Internet Security 2009 OEM disc I purchased. A paper insert in the CD case has a "WARNING!" that the user agrees to be bound by the terms of that licence should they install the software. Sounds like Kaspersky wanted it to form a binding contract to me? Why doesn't it bind them also?

kis2009en User Guide.pdf

[Yorky2008]

I would expect Kaspersky to honour their own licence as well, I purchased a specilaist modelling program, which I registered online and 6 months was upgraded to a newer, improved version. The manafacturer emailed me asking me to go onto their website and hey presto updated to the new version.

 

Did you register the software when you initially purchased it?

 

Yorky.

[Rainmaker]

Did you register the software when you initially purchased it?

 

Yorky.

 

Hi Yorky,

 

Yes mate I registered it in the Kaspersky "Personal Cabinet" online (unique login and registration section for each individual customer on their site). No dice. "Company policy" is not to honour upgrades for OEM licence holders despite the EULA. Another answer was that the licence version I was given was for v6 (couple of years old) and thus not valid for free upgrade. Only people with v7 and above licences could upgrade. Another answer/argument was that "version upgrade" meant for example version 8.1 to 8.2, not 8.0 to 9.0.

 

What would they call that then, if not a version change, especially since the EULA allows for software updates, bugfixes AND VERSION upgrades - basically covering every type of upgrade imaginable!

 

I'm especially keen for an explanation of the version 6 licence key I was given. Apparently (I've asked on the forum of the retailer I bought from) other customers who bought the same Kaspersky Internet Security 2009 OEM disc I did have had their code work just fine! It seems a lottery as to whether you get a v6 or v7 licence code for the same product and money!

 

A fellow customer had this exact argument with Kaspersky a couple of years ago, and his final post was that Kaspersky had yielded and provided a free new licence to him after he quoted the above section of the EULA. I even gave Kaspersky the url to his thread (on their OFFICIAL forum) and they still won't budge lol

 

I think I'll ask the retailer about a good-will replacement set of licences for 2010, since they are the ones who sold the "dud" licence code to me. Let them sort it with Kaspersky themselves. If not I'll issue my N1.

[Yorky2008]

Hi Rainmaker

 

x.1

x.2

etc Are updates

 

1.x

2.x

etc Are upgrades

 

The licence covers both aspects and states that the user is entitled to these during the licence period, does it state anywhere in the licence that they can skip upgrades? i.e. user entitled to only jump 7 to 8 , 8 to 9, etc not 7 to 9?

 

Yorky

[legalpickle]

Rainmaker: You're wrong! The contractual dispute is with the retailer. The retailer sold you the product and provided the licence key. The retailer did not provide a licence key for the product (including upgrades) that would be as advertised. Unless the retailer specifically stated "Upgrades are not provided", the retailer is liable, not Kaspersky.

 

BSC: Do Barclays provide Kaspersky on all accounts? Who do I need to speak to?

[Rainmaker]

Rainmaker: You're wrong! The contractual dispute is with the retailer. The retailer sold you the product and provided the licence key. The retailer did not provide a licence key for the product (including upgrades) that would be as advertised. Unless the retailer specifically stated "Upgrades are not provided", the retailer is liable, not Kaspersky.

 

BSC: Do Barclays provide Kaspersky on all accounts? Who do I need to speak to?

 

Log into your online bank (Barclays) and there should be a link on the left for AntiVirus. You can get your free 3 PC activation code there.

 

It was Consumer Direct who told me it was between Kaspersky and me. They said because the contract was for a service from Kaspersky and the EULA it's based around is explicitly stated to be between Kaspersky and myself, it's them I have to pursue. I take it that's not true then?

 

I'm not sure how this would go, then. How would I pursue it? "You sold me an item whereby a third party producing the item promised to provide X, but have failed to do so. Therefore you owe me a refund/new licence"?

 

All help gratefully received. Thank you

[rickyd]

The retailer is liable despite what anyone else says.

 

I had a major battle with a well known Scottish Car dealer who provided a brand new Volvo convertible for £35k that had over 200 miles on it and obvious signs of being used. It had quite a few dents and scratches and the ivory leather seats even had footprints on them.

 

At first the dealer didn't want to know saying that it must have been done by Volvo as the car had been delivered on a trailer to me.

 

Volvo were extremely helpful but pointed out that the retailer was liable even if the faults existed before he received the car (they strenously denied this however and I believe them) which he subsequently sold to me as he is the seller.

 

Similarly if the car wasn't right when he got it, he should have raised it with them as they were the seller to him. In other words, the retailer cannot pass the buck.

[legalpickle]

Log into your online bank (Barclays) and there should be a link on the left for AntiVirus. You can get your free 3 PC activation code there.

Ta. I'll look there.

 

It was Consumer Direct who told me it was between Kaspersky and me. They said because the contract was for a service from Kaspersky and the EULA it's based around is explicitly stated to be between Kaspersky and myself, it's them I have to pursue. I take it that's not true then?

Yet again Consumer Direct have given incorrect information. I'm far from surprised. I've heard of so many cases where they've given the wrong information and people have been put in problem situations, it's scary.

 

I'm not sure how this would go, then. How would I pursue it? "You sold me an item whereby a third party producing the item promised to provide X, but have failed to do so. Therefore you owe me a refund/new licence"?

 

All help gratefully received. Thank you

Nope.

 

Firstly, it should be in writing.

 

Secondly, it should be more legally correct than that. Something like this:

 

Dear Sirs,

 

On xx/xx/xx I purchased Kaspersky xxxxxx from yourselves. The usual EULA of the product states, in term xxxx, that you get unlimited upgrades, for the duration of the licence.

 

As it was not clearly pointed out to me, prior to the purchase, that the product you were selling was not including such upgrades, which is what Kaspersky themselves are now claiming, due to the version of the licence key you provided, you are liable for misrepresentation as to the product sold to me, and therefore you must, within 14 days, provide to me, either;

 

1. A licence key that works for such upgrades, or;

2. The cost of such upgrades.

 

Should you not do so within 14 days, I will be left with no choice but to issue court proceedings to recover all damages from this blatant misrepresentation of yours, seeking at the same time court fees & costs.

 

Sincerely,

 

xxxx

 

 

The retailer is liable despite what anyone else says.

 

I had a major battle with a well known Scottish Car dealer who provided a brand new Volvo convertible for £35k that had over 200 miles on it and obvious signs of being used. It had quite a few dents and scratches and the ivory leather seats even had footprints on them.

 

At first the dealer didn't want to know saying that it must have been done by Volvo as the car had been delivered on a trailer to me.

 

Volvo were extremely helpful but pointed out that the retailer was liable even if the faults existed before he received the car (they strenously denied this however and I believe them) which he subsequently sold to me as he is the seller.

 

Similarly if the car wasn't right when he got it, he should have raised it with them as they were the seller to him. In other words, the retailer cannot pass the buck.

rickyd: You're right of course (as I have said), but the terms of the case are so different it's hardly a comparable case.

[rickyd]

I agree there are differences but the law is common to both and treats them in the same way.

 

It all comes down who receives payment from the purchaser.

[Rainmaker]

Thanks guys. I've submitted a written note to the retailer (as I said I'm a long-time customer and an active forum member there). I've outlined the situation again, and stated that I've been advised they are liable as they are the retailer of the product in question.

 

I've stated I'm aware of their obligations, but that I hope we can come to an arrangement amicably over this and that there'll be no need for escalation. I left no doubt that I was seeking a valid licence code or else restitution to the sum of the cost of a 3x user licence for the new 2010 version. We'll see what they come back with. Their customer service is usually 100% so hopefully they'll just send me the new version without qualms.

 

Should this prove unproductive, I'll proceed to send your letter by recorded delivery, legalpickle. If it was just "Company X" I'd have done that straight away. But given my history with the company I'd much rather establish dialogue first, before all guns start blazing.

 

I'll keep this thread updated. Many thanks again; have a good weekend!

[patdavies]

 

Dear Sirs,

 

On xx/xx/xx I purchased Kaspersky xxxxxx from yourselves. The usual EULA of the product states, in term xxxx, that you get unlimited upgrades, for the duration of the licence.

 

As it was not clearly pointed out to me, prior to the purchase, that the product you were selling was not including such upgrades, which is what Kaspersky themselves are now claiming, due to the version of the licence key you provided, you are liable for misrepresentation as to the product sold to me, and therefore you must, within 14 days, provide to me, either;

 

1. A licence key that works for such upgrades, or;

2. The cost of such upgrades.

 

Should you not do so within 14 days, I will be left with no choice but to issue court proceedings to recover all damages from this blatant misrepresentation of yours, seeking at the same time court fees & costs.

 

Sincerely,

 

xxxx

 

 

 

 

Reading this through, I think that the 'you' in red is ambiguous (is it the user or the retailer?). I would suggest replacing it with "the end user is entitled to obtain at no further cost".

 

Just my 2 pennyworth

[legalpickle]

Reading this through, I think that the 'you' in red is ambiguous (is it the user or the retailer?). I would suggest replacing it with "the end user is entitled to obtain at no further cost".

 

Just my 2 pennyworth

Thanks Pat! I - as the author of the draft letter - accept Pat's constructive criticism and agree.