EULAs and consumer rights

vyle

I had a thought today that somebody may be able to answer.

As far as I know, the EULA is a legally binding agreement. It usually stipulates that use of the software is on the condition that you don't pirate it, etc etc. Now, the thing that bothers me is that with some things, like the Xbox 360, Microsoft effectively says that youre agreeing that you don't own the console, youre using it on license from MS, and they can change anything about it they want at any time without notice.

Now, the thing I'm wondering, is what would happen if somebody didn't agree to the EULA?

Let's say, somebody bought an xbox, saw what Ms requires them to agree to and decided they wanted to own their purchase and didn't want it to change without notice, and chose not to agree.

Would this person be within their rights to return the product? Software and hardware such as consoles are the only thing im aware of where the customer has to lay down the money before seeing what they're agreeing to. usually, you read a contract before putting any money on the line.

Where do consumers stand in such situation, where the choice is to either agree to something they may not agree with, or end up out of pocket?

I know it's probably not going to affect most people, but it has been bugging me since I thought of it.

kwikbreaks

I think you're more likely to get an answer on the consumer rights board than here

http://forums.moneysavingexpert.com/forumdisplay.html?f=173

FWIW I think you would be able to return any software and hardware so long as it was unopened but you'd probably have to argue with stroppy shop staff at some outlets. But of course IANAL (wonder if that will pass the censor )

DrScotsman

This thread could get interesting. Should be moved to Consumer Rights though.

Unfair_Contract_Regulations wrote:

[Terms that may be unfair]
(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

So if you tried to get a refund because of EULA terms and the shop said "By buying the console you implied you were agreeing to the EULA", they're almost definitely wrong, as that implication itself would be an unfair contract term. Unless you tried to get out for EULA terms that are definitely obvious, like "If you drench your console in water then the warranty is void."

Additionally and perhaps more importantly, some EULA terms themselves would constitute Unfair Contract Terms, meaning that you're not actually agreeing to them. I too was thinking about the banned Xbox users earlier, how they don't get any of their Xbox live fee back. This would surely be an unfair contract term...

(d) permitting the seller or supplier to retain sums paid by the consumer where the latter decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the seller or supplier where the latter is the party cancelling the contract;
(f) authorising the seller or supplier to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the seller or supplier to retain the sums paid for services not yet supplied by him where it is the seller or supplier himself who dissolves the contract;

More here

cooki2222

i assume you want to flash your xbox and play backups??

Marty_J

DrScotsman wrote: »

This thread could get interesting. Should be moved to Consumer Rights thoughI too was thinking about the banned Xbox users earlier, how they don't get any of their Xbox live fee back. This would surely be an unfair contract term...

I would have thought that by using the service, you'd be agreeing to the EULA.

DrScotsman

Marty_J wrote: »

I would have thought that by using the service, you'd be agreeing to the EULA.

Agreeing to a contract doesn't automatically mean that unfair terms are valid. I mean think of the bank charges...

Martin wrote:

Of course, if you had read the terms & conditions when you got your bank account, this was in there. Yet that’s irrelevant: a contract must be written within the law, and they can’t enforce a contract with legally unfair terms. Ultimately, if it isn't proportionate then it's unlawful, and thus you've a right to your money back. Let me use my favourite analogy for this:

If someone told you they were about to punch you before smacking you; it doesn’t make it legal. The same’s true with bank charges.

isofa

It's a widely held opinion that many EULAs for software wouldn't stand up in a UK court of law. Still a moot point, as I'm not for one moment advocating piracy, as a software creator myself, I hate it.

[Deleted User]

DrScotsman wrote: »

Additionally and perhaps more importantly, some EULA terms themselves would constitute Unfair Contract Terms, meaning that you're not actually agreeing to them. I too was thinking about the banned Xbox users earlier, how they don't get any of their Xbox live fee back. This would surely be an unfair contract term...

The use of the XBL account is still available, just not from that console. You can freely move them between consoles.

Marty_J

DrScotsman wrote: »

Agreeing to a contract doesn't automatically mean that unfair terms are valid. I mean think of the bank charges...

Chipping a console is illegal though.

Leopard

vyle wrote: »

As far as I know, the EULA is a legally binding agreement. It usually stipulates that use of the software is on the condition that you don't pirate it, etc etc. Now, the thing that bothers me is that with some things, like the Xbox 360, Microsoft effectively says that youre agreeing that you don't own the console, youre using it on license from MS, and they can change anything about it they want at any time without notice.

That's fairly typical of a Microsoft EULA.

If you want to read something really scary, wade through some Terms & Conditions and EULAs of "Office", "Word" or "Excel" and see what rights you assign to Microsoft by agreeing to those. :eek:

But, as has been pointed out, much of it is the ultimate fantasy of a delusional lawyer in Redmond who would like to control the world and would be laughed out of court if Microsoft actually tried to enforce it.

DrScotsman

Marty_J wrote: »

Chipping a console is illegal though.

That's an argument in itself. I thought the latest was that they were legal.

http://yro.slashdot.org/article.pl?sid=08/06/12/2037223

That's June 2008, got anything newer?