EULA's Are they really Legal?

  User-312386 18:43 24 Jul 2006
Locked

Hi guys

This one has been nagging me for ages.

If i buy some software and then open the packaging and not agree to the EULA(End User License Agreement) can i take it back? The supplier/retailer normally says NO.

The reason i say this is that surely a contract is between 2 parties and has to be agreed upon. Bearing in mind that the contract is on the inside of the packet, is it binding?

My answer to the above and it is my humble opinion us that it is not binding and if you went to court then i am sure you would win, as long as you took the packaging into court. This archaic way in which we have to agree to something after we have purchased it has to stop.

This is my opinion and i am not a lawyer.

How can you agree to something that you can not read until you have opened the packet?

Now you may say you can go on the internet to read EULA's, my answer to that is some people can not afford internet access.

I just want to open this up to the forum and see what we all think.

  FelixTCat 18:49 24 Jul 2006

IMHO, the EULA probably is legal and enforceable. It is the retailer's refusal to take back the product which could be challenged, if necessary in court.

Regards,

Felix

  Totally-braindead 18:53 24 Jul 2006

Never really thought about it. I think this would have perhaps been better in Speakers Corner but I personally think, and I'm not a lawyer or anything either, that it would depend on what they said in the EULA. If they made some ridiculous demands then I think you may be right. A court in this case may uphold your case.
But lets face it, the ones I have seen just include agreements that try to stop sharing and copying of the programs etc etc and I don't see how a court would disagree with that.
I do see you point about having to open the packaging to read it though.

  spuds 19:10 24 Jul 2006

Try this experiment, the results could be interesting.

Go into somewhere like PC World, select a software pack that you know may contain something referring to an Eula. Tell the staff that you want a copy of this Eula before you purchase the software. See how they respond!.

I am sure that someone like Microsoft have a big team of lawyers who have looked at this with a fine tooth-comb. But this doesn't mean that it is 100% water-tight, unless tried in a court of law, with the final decision being left to a judge or appeal court.In the UK we have the Unfair Contract Law, whether this would apply with an Eula or similar worded document, I wouldn't know.

Remember the Kodak DX3700 camera saga, when various legal people gave different opinions as to the way the law should have been interpreted, on the issues that were raised at that time.

  woodchip 19:15 24 Jul 2006

CD as a sticker on them that seals the CD this is Legal. If you break the Seal who is to know that you did not copy the CD before taking it back.

I am not saying that you did or would do that.

But that is why it is put there. Only way round this is if the CD will not work

  Totally-braindead 19:22 24 Jul 2006

I agree with that woodchip and agree with the reasoning behind it but do you not think that madboy33©® has made an interesting point? Just say for the sake of arguement that you buy some software and upon reading the EULA discover something which you do not or will not agree to. I realise why they will not take it back but is it legal when you have to break the seal to read it in the first place?

  woodchip 19:34 24 Jul 2006

That then is illegal. Under Britsh law He would have a Case

  User-312386 21:13 24 Jul 2006

Then the EULA can not be a binding contract between two parties and somewhat one-sided?

As i have said above, surely a EULA is a contract between two parties and then even if you agree to it, it is not legal as you have had to "break the seal" prior to agreement and therefore said contract is not legal even if you agree to the terms?

  ade.h 21:42 24 Jul 2006

Bookmarked in case it moves to Consumerwatch/Speaker's Corner.

  VoG II 21:48 24 Jul 2006

Why not test this in the small claims court? Buy some rubbish game (they are all rubbish) break the seal and demand your money back. I'll happily donate a £ and I'm sure many other members will too to fund your test case.

  SG Atlantis® 22:03 24 Jul 2006

You can take software back after the seal has been broken...

Done it a few times, although my excuse was it wasn't suitable and GAME took it back no bother on several occasions. They like to add "but only as a once off" etc at the end, but they've always taken disks back off me.

Also order online you'll have seven days to send it back, don't ya?

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