Posted by: Anonymous
on January 25, 2008 04:27 AM
Ok. A few bush lawyers here and I thought I'd set a few things straight. I've simplified in a few cases but the gist is right.
EULA: It's not a contract, it's a licence. What does this mean? It means that Microsoft is telling you that it's ok for you to use Windows if you agree to and observe the conditions of the licence. "But it says licence AGREEMENT. Doesn't that make it a contract that grants a licence, rather than the licence itself?" Okay smarty, we can call it a contract. But *you didn't agree to it*. You can't sue on a contract that you didn't agree to because there is no valid contract.
EULA2: Ok, but you've taken windows home and opened the packaging and you read the licence for the first time. You can't add conditions to a contract after it's completed and they can't make you agree to the EULA. No licence means no windows. You're entitled to a licence that you can agree to or a refund of what you paid for windows. But did you pay for windows? See Bundling.
Bundling: Very jurisdiction specific whether you can or can't bundle stuff. Clearly though it was Dell's intention to bundle this and you agreed to the bundling when you made the purchase. The time to have arguments about the legality of bundling is before the purchase, not after, although you may still have some rights in certain jurisdictions. My basic position is that they're entitled to offer an all or nothing refund should they prefer unless local law says otherwise.
Jurisdiction: Yes, companies can and do require a specific jurisdiction for settling disagreements. In this case, look at the purchase contract with Dell, not the Microsoft EULA (not a contract remember). They can insist that you sue them in a particular jurisdiction and they can insist that you go to mediation/arbitration instead of going to court. It all depends on what's in the purchase contract.