Refund of "Microsoft Tax"

[andylondonuk]

Tell them Acer Belgium has a procedure in place and you can send them a copy of this: exhibitL - Fullscreen to prove it.

From what I can see this requires the shop to sign a form? I purchased my laptop on-line, so this is not going to be possible.

 

Although Acer did mention there is a Microsoft form to fill in, not sure what this yet.

 

Thanks for the tips with the license sticker

 

I basically said in my email that I had video footage and offered this as an alternative to sending the laptop to them. I also asked if it's possible to get an electronic copy of the Microsoft form they refered to.

 

If I get nowhere after this, I'll start mentioning the fact it's the license that's being refunded, not the software, is that correct? So there should be no need to return the laptop? If they still refuse then next step is to mention Small Claims Court and bringing laptop as evidence?

 

I don't want to drag it out too long as I'm concious of the 30 day limit, which they also mentioned to me. I purchased the laptop on 30/09/2009, so with the emails going back and forth (plus weekends), I've used 12 days so far, only 18 left!

[human.error]

From what I can see this requires the shop to sign a form? I purchased my laptop on-line, so this is not going to be possible.

 

Although Acer did mention there is a Microsoft form to fill in, not sure what this yet.

 

Thanks for the tips with the license sticker

 

You're welcome.

 

I basically said in my email that I had video footage and offered this as an alternative to sending the laptop to them. I also asked if it's possible to get an electronic copy of the Microsoft form they refered to.

 

If they say 'no' then just get them to send you one, then use a service like: PDFescape - Free PDF Editor & PDF Form Filler - Your Free Online PDF Reader, Editor, Form Filler, Form Designer, Solution, you just upload the file. Fill in the details, save them then send it to them obviously. Alternatively, you could use: PDF Xchange PDF Viewer - Software To Open A PDF File - PDF Editing Software this one allows you to draw 'boxes' and then click on the text tool to fill the box in with the required text, it doesn't 'save' the work, but whilst it's all on the screen you get a basic 'editing' facility.

 

If I get nowhere after this, I'll start mentioning the fact it's the license that's being refunded, not the software, is that correct?

 

Pretty much, though to be precise the ability to use the software as without the code you can't agree to the license agreement. You could technically have a 'trial' of the software, just to confuse you further but after that you would still need the code for continued use.

 

So there should be no need to return the laptop?

 

That is correct, there should be no need to return the laptop as their requirements should all be met.

 

If they still refuse then next step is to mention Small Claims Court and bringing laptop as evidence?

 

That was GraceCourts suggestion and it would seem so yes.

 

I don't want to drag it out too long as I'm concious of the 30 day limit, which they also mentioned to me. I purchased the laptop on 30/09/2009, so with the emails going back and forth (plus weekends), I've used 12 days so far, only 18 left!

 

You've got the wrong end of the stick on that, the time limit is for you to bring the claim after purchase of your intent to reject the Operating System. Not for them to complete, though there would be a belief that all parties would wish to settle the issue at hand in a reasonable time. So you're 'safe'.

 

I am certain GraceCourt would agree here too, you've advised them of your intent to trade your License Key\Product Key for agreed renumeration, if there's any limit it's on them Acer. Not so much you. Though I should imagine that there's a belief that all parties will be expected to behave in a reasonable manner and progress things in a reasonable time, however, it's not like if you don't complete within 30 days they can rescind the offer fwiw they can't do that, it's just to guide everyone in a direction within a suitable time period so they can't then say oops you're out of time we don't have to honour this as you failed to send us document xxxx in time the impetus will be on them to act reasonably and for each party to meet the others expectation and apply the correct amount of emphasis to the transaction in a bid to complete, but if the 30 day limit passes you can still persue the claim, nothing will have changed in that regard.

 

HTH

[andylondonuk]

Just a thought, is it worth mentioning Trading Standards at all, as well as Small Claims Court?

[andylondonuk]

Reply from Acer:

 

Please contact our dedicated call centre below this email who will be happy to assist you with this.

 

Not quite sure what to make of this. Whether it's them realising I'm not giving up and they can't fob me off, or something else? Only one way to find out I guess!

 

They've still not sent the Microsoft form they keep referring to. I've asked twice now.

 

Oh and .. sorry .. I forgot to mention something else I said in my email. I commented that I thought the cost of handling the refund seemed disproportionate to the refund itself and it would actually result in a cost to me. Maybe they realised I can do maths?

 

Will need to go through all the comments again to prepare for the call. Make sure I'm ready for anything they throw at me.

[human.error]

Reply from Acer:

 

Please contact our dedicated call centre below this email who will be happy to assist you with this.

 

Not quite sure what to make of this. Whether it's them realising I'm not giving up and they can't fob me off, or something else? Only one way to find out I guess!

 

It would seem so, did you call them?

 

They've still not sent the Microsoft form they keep referring to. I've asked twice now.

 

Well that's their lookout, though it's in their interest of course to forward it to you, as I would think it would require at the very least a declaration from YOU that you were trading the license back, perhaps your signature too.

 

Oh and .. sorry .. I forgot to mention something else I said in my email. I commented that I thought the cost of handling the refund seemed disproportionate to the refund itself and it would actually result in a cost to me. Maybe they realised I can do maths?

 

Maybe, but better mentioning it now and in writing rather than argue the toss over it later eh? You can as GraceCourt says at a later date send them a small claims request for them to return to you x amount or at least that which you would consider disproportionate to the costs of sorting the situation out. But also include in there that you seem to have a friendly amicable relationship going now and you would rather not fall out as I'm sure they wouldn't, afterall the nexttime your partner has to purchase a replacement laptop, she may not look as favourably on Acer as she did lasttime, it maybe worth mentioning that it's true she's not going to buy 1000's of units, but when she goes to those meetings\lunches and they all 'huddle' at times of eating and they get around to discussing computers as often happens, comments such as 'Acers suck! well my partner was treated terribly by them because...' have a greater impact in these competitive markets. I'm sure you get the idea, there's not much a company will guard or maintain as hard as their 'name', so you could use that to your advantage. Who knows who your partner knows, she could make the same statement to the local paper person and they may pass it on to their mate who will discount acer just because someone mentioned how terribly they were treated! Better for everyone to leave the arrangement with a positive feeling, than a negative one. If you get my point, even if you don't they will and if you get it accross to them well enough there's a good chance they will cough up that extra £20 just to maintain that positive response from you.

 

Will need to go through all the comments again to prepare for the call. Make sure I'm ready for anything they throw at me.

 

Lol you're making it sound like its some kind of test, it's just a couple of people talking, but if you handle yourself professionally and keep your head you'll more than likely come back with what you want. If not, threaten 'em with the small claims court

 

Best of luck!

[andylondonuk]

Lol, I just like to be prepared

 

I called Acer and the agent I spoke to, first of all had no idea what I was talking about, then when he understood, he said that a refund was not possible. I explained the email conversation said it was and what the value of the refund was. He asked for a reference number or the serial number of my laptop. Now, I've never had any reference numbers in any of the emails and they've never asked for my serial number, so no reference and the serial number would be useless. He said without a reference number or serial number he could not help.

 

I've replied to the email asking them to provide a reference number to quote to the call centre. Surely the person who sent the email would have known that this would be required and could've provided it for me, rather than me waste a 12 minute call at 35p/minute!

[human.error]

Lol, I just like to be prepared

 

I called Acer and the agent I spoke to, first of all had no idea what I was talking about, then when he understood, he said that a refund was not possible. I explained the email conversation said it was and what the value of the refund was. He asked for a reference number or the serial number of my laptop. Now, I've never had any reference numbers in any of the emails and they've never asked for my serial number, so no reference and the serial number would be useless. He said without a reference number or serial number he could not help.

 

I've replied to the email asking them to provide a reference number to quote to the call centre. Surely the person who sent the email would have known that this would be required and could've provided it for me, rather than me waste a 12 minute call at 35p/minute!

 

You couldn't make it up could you and after all that studying the facts too

 

Stick in there, I'm sure it will all get better in soon.

[andylondonuk]

LOL .. yeah couldn't make it up

 

They just replied, re-iterating the procedure for a refund .. send laptop in .. pay £51.99 .. cheque will be sent for £33.95. They also re-iterated the 30 day limit.

 

They mentioned nothing about the call centre again, gave me no reference number and still have not answered any of my questions.

 

Getting annoyed now!

 

I get the distinct feeling of going round in circles.

 

Wondering whether to include the reference to small claims court in this reply.

[human.error]

LOL .. yeah couldn't make it up

 

They just replied, re-iterating the procedure for a refund .. send laptop in .. pay £51.99 .. cheque will be sent for £33.95. They also re-iterated the 30 day limit.

 

If I were you, I would write a letter for the attention of Managing Director Acer UK.

 

'Bobby Watkins, UK managing director of Acer' June 2008

Acer demands commitment - 08 Jun 2009 - CRN use their head office address: Contact us send a brief synopsis of what's happened this far, what people have said and then how things seemed to have changed down a gear, tell them what you propose about sending video of your removing the os, how they themselves can verify that the license hasn't been activated by YOU and no updates downloaded etc everything we discussed and then advise them you just wish to find an easy reasonable solution to this. Also explain that you think it's unreasonable for the cost to be so disproportionate. Suggest he can sort it out with his office to get you your refund.

 

You could then get a couple of addresses of linux magazines, write a letter to each to their 'problem pages' announce to the world how 'not bothered' Acer are to supplying Linux, or worse how they push Vista over Linux at any cost. In order to put you off and so they don't have to honour their obligation even though you have proof there's a procedure in place, they require you to pay disproportionate costs. Then bundle this lot all off, and send it to the Acer UK address. Send the letters to the magazines, you should get a reply within about 2 months

 

 

Getting annoyed now!

 

Yes, I can see why.

 

Wondering whether to include the reference to small claims court in this reply.

 

You could, but it's just a case of applying the correct pressure. So you could do that, see what happens but be aware you'll have to go through with proceedings once they're started though you can use moneyclaim.gov.uk which is easy enough.

 

HTH

[andylondonuk]

I decided to send one final email to technical support, I wanted to give them a final chance to answer my questions. I re-iterated everything and added the comments about the refund being for the License, not the software. I also asked that if they where unable to answer all my questions, to provide me with details of how and who to escalate the matter to. I don't expect much from them, based on current experience, so will see what they say.

[human.error]

I decided to send one final email to technical support, I wanted to give them a final chance to answer my questions. I re-iterated everything and added the comments about the refund being for the License, not the software. I also asked that if they where unable to answer all my questions, to provide me with details of how and who to escalate the matter to. I don't expect much from them, based on current experience, so will see what they say.

 

Send a copy to the MD of the company too, as it WILL be quicker if he gets it. It would be much better to send a FAX, yes a fax don't ask me why it's just something that someone told me earlier this week, something about faxes usually being directed to the 'head' of most companies for some reason. I forget why, so try to send a fax of your letter and see how it goes.

 

You can't have too many letters bouncing around a company when you're trying to sort something like this out can you?

[Zamzara]

IMHO I don't think anything in an EULA is enforceable by either party, except to the extent that it repeats the existing law.

 

The buyer does not have any contract with the manufacturer of the software, and the contract of sale is complete when the software is purchased.

 

The assertion by the manufacturer that a new contract is created by installing and agreeing to the EULA is littered with problems. The manufacturer does not provide any fresh consideration being the most glaring flaw in this. In addition it would mean the shop is accepting payment under (somewhat) false pretences.

 

So I have to agree with Mr Shed that there is no right to a refund here, my reasoning being the contract to buy the software was properly made in the shop and the EULA forms no part of its terms.

[Guest GraceCourt]

Zamzara, please re-read the full message thread carefully, you've missed some of the key points:

 

The buyer does not have any contract with the manufacturer of the software, and the contract of sale is complete when the software is purchased.

 

...

 

So I have to agree with Mr Shed that there is no right to a refund here, my reasoning being the contract to buy the software was properly made in the shop and the EULA forms no part of its terms.

 

The software is NOT purchased, the cost of a licence to use it is included in the consideration paid to the retailer, BUT... the contract between the buyer and Microsoft (for the licence) cannot be executed until the terms and conditions are agreed to - by clicking "Yes" rather than "No" after the PC is started up.

 

Re-read the posting by me about the purchaser's right to partial rejection (only if he/she purchases as a consumer), which permits them to accept the PC but to reject the option of a licence to use Windows. Thus, the retail purchaser claims back the full cost of that licence from the retailer, who gets credited for it by Microsoft (directly or indirectly - see my point about the chain of supply).

 

The assertion by the manufacturer that a new contract is created by installing and agreeing to the EULA is littered with problems. The manufacturer does not provide any fresh consideration being the most glaring flaw in this. In addition it would mean the shop is accepting payment under (somewhat) false pretences.

 

The detail is important. This is nothing to do with the manufacturer, except as one agent in the chain of supply between Microsoft (which charges for the licence to use Windows) and the end user, who is protected by consumer legislation if they purchase by way of retail supply.

 

The shop is not accepting payment under false pretences (where do you get that from?). It accepts payment for a PC and for an option to use Windows under licence from Microsoft, subject to stringent terms and conditions. The retail purchaser declines to accept those conditions, and partially rejects the goods (the Windows licence). Through the chain of contracts between those two parties, the refund is administered in compliance with the terms and conditions of the overall licensing agreements between each party in the chain between MS and the end user. It does happen... where do you think the idea of the Microsoft form came from? It does exist, you just have to get the retailer (or manufacturer on their behalf) to supply it!

 

"Simples!"

Edited December 3, 2009 by GraceCourt
Typos

[Zamzara]

The software is NOT purchased, the cost of a licence to use it is included in the consideration paid to the retailer, BUT... the contract between the buyer and Microsoft (for the licence) cannot be executed until the terms and conditions are agreed to - by clicking "Yes" rather than "No" after the PC is started up.

 

That's their assertion, but what is the legal basis for it?

[Guest GraceCourt]

That's their assertion, but what is the legal basis for it?

We actually might be violently agreeing! I think maybe you are saying that there is no binding contract just because an end-user clicks "Yes" - and I actually tend to agree with that view, from the end-user's point of view.

 

I'm coming at it from the other way... if the the end-user doesn't click "Yes", and therefore has to click "No", there definitely isn't any contract, there's therefore no licence to use Windows, and therefore the end-user can partially reject the goods and receive the refund of the licence cost.

[Zamzara]

I'm not quite sure we are in agreement. The bit I object to is the claim that the user needs a licence, or any other permission, to use software once it is paid for. I know the software companies assert this, but I don't know what their basis for it is and this rule does not apply to any other product: for example once I buy a book I don't have to get permission from the author to read it as this is already implied in the contract of sale with the shop, and implied by the ownership of it. This is the case even though there are restrictions on copying the text in it.

 

However you might be right that the user can get a refund on the grounds that the software offers one in that text it shows, but I can't convince myself such an offer is legally enforceable by the consumer.

[danielr]

The bit I object to is the claim that the user needs a licence, or any other permission, to use software once it is paid for. I know the software companies assert this, but I don't know what their basis for it is and this rule does not apply to any other product: for example once I buy a book I don't have to get permission from the author to read it as this is already implied in the contract of sale with the shop,

That's because you buy physical ownership of the book,

you don't buy physical ownership of the operating system, only a license to use it.

 

Re-read the posting by me about the purchaser's right to partial rejection (only if he/she purchases as a consumer), which permits them to accept the PC but to reject the option of a licence to use Windows.

as was said earlier in the thread, does this mean I can buy a car, and tell the garage I've already got an engine, so I don't want it...

the garage will say no, if I remove the engine myself, and install a different one can I arrive at the car dealer and say that I'm partially rejecting the car and want the price of the engine back?

I like the shape of the prius, but it's be a much better to use car with a beamer engine in it... which seems to be the argument presented here.

I'll partially reject the product, removing the engine then expect a refund of that? you say I'm well within my rights to do this?

 

Through the chain of contracts between those two parties, the refund is administered in compliance with the terms and conditions of the overall licensing agreements between each party in the chain between MS and the end user. It does happen...

the silly example about car engines given above aside, you're right, refunds CAN be given, this is implied in the MS EULA, "contact your reseller to *DETERMINE* their returns policy".

I highlighted a section of your quote, refund is administered, this would imply that an administration fee would not necessarily be infeasible...

 

which is what's happening.

 

the resellers refund policy has been clearly stated, they say:

"send us the laptop and we'll check that windows has been removed, or remove windows for you and install a different OS, when we're satisfied that the license is revoked we'll send you the money for the cost of that license"

They just replied, re-iterating the procedure for a refund .. send laptop in .. pay £51.99 .. cheque will be sent for £33.95. They also re-iterated the 30 day limit.

send the laptop back, they will confirm that windows is removed.

the administration of this costs £51.

 

when they are satisfied that the EULA has indeed been rejected and windows HAS been removed they will offer a refund for the cost of the license £33.95.

 

Wondering whether to include the reference to small claims court in this reply.

why would you win at a court hearing when you've ignored the requests to send the computer back to check that the terms for rejecting the OS have been met.

 

Tell them Acer Belgium has a procedure in place

why does What happens in Belgium have any bearing on what happens in the UK?

 

I'm going to reply to Acer and suggest forwarding the video footage (and the license sticker) as an alternative and see what they say. Any other suggestions what to include in the email? Should I also point out that it's the license being refunded and not the software?

 

for me, video footage of you checking the NO box wouldn't be enough,

a video of you booting the laptop wouldn't be enough.

 

basically you can select no. wipe the laptop and re-install windows and select yes the next time. so the video of you clicking no only shows that you rejected the agreement at that time. not at the present time.

 

even if the video shows you booting the laptop into linux, that's still not proof that windows has been removed.

 

if you know how to use Linux then I'm sure you know how to configure the boot loader for multiple boots across different OS's

and you'll also know that the option where you select what to boot in is just a text...

so it's easy enough to just change the text from windows to linux, on the boot loader screen...

even delete an option from the boot loader screen and add it back in again later...

 

I can make my dual boot windows/linux machine look like it's got 2 copies of windows, 2 copies of linux, a single copy of either or, or make it look like nothing is installed at all, I could add a thousand boot options to make it look like I had a thousand Os's to choose from...

nothing shown at the booting stage that you could provide on a video could satisfy me that windows wasn't on the box.

 

only ME investigating what partitions were on the box, and ensuring that windows HAD been removed could convince ME that windows wasn't being used...

 

and EVEN THEN, you could have windows installed on a removable USB device, so you could still boot into the windows supplied even after I've looked at the laptop and assumed that you can't!!

 

videos of the laptop booting prove nothing.

[Sponge]

I just wanted to add my support to what is trying to be accomplished here.

 

I received a new laptop this morning and have been exchanging emails with Dell all day in an attempt to be reimbursed for not using the bundled Windows 7 operating system.

 

It's been tough going and as I haven't got anywhere with the agent I've been writing to, I've asked for the matter to be escalated to somebody with the authority to process a refund. Plus I think the person I have been communicating with has gone home for the night.

 

I don't want to post any of the communications just yet, as I don't want to jeopardise my case by any employees of Dell reading this thread and taking exception. But I'm going to keep pushing it...

 

I will say this though: one of the arguments I'm using is that Dell have already refunded one person, that I know of. So it is possible and I'm hoping they'll repeat the 'gesture of good will'. I am also using this clause from their T&Cs.

 

By...using the software that has been preloaded or is embedded in your product, you agree to be bound by the terms of this agreement. If you do not agree to these terms, promptly return all Software items (disks, written materials and packaging) and delete any preloaded or embedded Software.'

 

I'm arguing that I have not agreed to their terms and have deleted Windows 7.

 

I am asking for a refund as per the Windows EULA.

 

By using the software, you accept these terms. If you do not accept them, do not use the software. Instead, return it to the retailer for a refund or credit.

Edited December 4, 2009 by Sponge

[Zamzara]

That's because you buy physical ownership of the book,

you don't buy physical ownership of the operating system, only a license to use it.

 

This is the concept I'm disputing. I'm open to being shown a legal basis but as far as I can find out this concept is invented by the software companies.

[danielr]

This is the concept I'm disputing. I'm open to being shown a legal basis but as far as I can find out this concept is invented by the software companies.

fi you want to buy 'rights' to do something from someone who has patented a product. you buy the right to make something, and that right can be revoked. you don't buy the plans to build the product in this sense, you buy a license to use that product.

 

when you buy a CD, you buy a right to listen to the music, but don't buy the right to play the music in public, or broadcast that music.

 

when you buy a DVD you buy a right to watch the film in private, the studio retains property rights, and they don't grant you the right to screen the film in public etc...

 

it's not just the software industry that just licenses you a product, you get sold on a shiny disc, and you can use the disc in a certain way, and you own a shiny plastic disc, but the information contained on the disc still remains the property of the creator.

[Zamzara]

I understand that, but screening a film or playing music in public without permission is illegal. Therefore it makes sense to obtain permission (licence).

 

But it isn't illegal as far as I can see to simply use something yourself without permission, even if it is copyrighted, so I can't see how any licence is needed as long as the copy was not made illegally.

[danielr]

because you buy a license to use it on ONE machine.

 

if you bought the software, (not a license) then you'd buy the software once and use it however and whenever you want.

 

screening a film in public is only illegal because you don't have a license to do it, if you buy a license to screen a film in public then you can do that, if you buy a volume license then you can install a single copy of whatever software you've bought on multiple computers.

[pompeyfaith]

human error, welcome to cag i have used novatech 4 many yrs now and have always had good service from them and nice to know they are doing well with there expansion plans anyway welcome as im sure your help will be valuable on here PF

[Conniff]

Can anyone help me please. It is the same as the above problem.

 

I bought a new car from Ford but I don't want the engine as I have a different engine that I want to install.

 

Ford say they wont take back the engine and give me a refund for it.

 

What do I do?

[Sponge]

You need to check the terms and conditions of sale/use. Both the dealer's and Ford's. If they don't specifically mention anything about rejecting the engine for a refund, then I'm afraid you'll just have to continue using it.

 

You could try contacting the dealer anyway. They might offer a good-will refund.