Getting a Windows Refund in California Small Claims Court

Thanks to good records and a Small Claims judge, Steve Oualline got a $199 refund for his unused copy of Microsoft Windows XP. One Linux user's story shows how to establish a good refund case.

Getting a Microsoft Windows refund from a manufacturer is seldom easy to do. In this article, I describe some techniques you can use to get your refund, including how to deal with the manufacturers (and all their excuses) and going to small claims court.

The first step to getting a refund is to ask for one. In most every case, you immediately hit a wall of stupidity and evasion when you do this. Dealing with this part properly is important, though, because you are building a record for the court case that may follow. Your job is to be as reasonable as possible and to make them look as dumb, inflexible and unreasonable as possible.

It's important to know what excuses the manufactures will come up with and how to counter them.

Excuse: You aren't entitled to a refund.

Answer: Then why did the software come with a license that said I was. Isn't the license a binding contract?

Excuse: Contact Microsoft about the refund.

Answer: The license said contact the manufacturer. That's you. Why should I contact Microsoft when they said to contact you?

Excuse: The software comes bundled with the hardware and can't be separated.

Answer: Then why did you give me a license that said they could?

Excuse: We'll give you a refund, but not for the retail price.

Answer: I paid retail for the computer and the software.

Excuse: The software is only worth $10.

Answer: Okay. Send me the check.

Although this doesn't look like it, you've won a major victory with these words--that check is written evidence of the fact that the manufacturer owes you a refund. If you go to court, you don't have to establish that the company owes you something. All you have to do is establish the amount.

But before you do that, you should follow up with the company. There are several ways of doing this.

Follow up #1: I got your check for $10. You say Windows XP costs only $10, so I'd like to buy 100 copies please. To whom do I make out the check for $1000?

You won't sell me Windows XP for $10? I'll have to pay $199 for it? Then that means the check you sent me is too low. Please send me a check for the full amount.

Follow up #2: I got your check for $10. But your $10 price is far lower that the retail price of Windows XP ($199). Because of the vast difference in the amounts, I'm going to have to ask you for a copy of your purchase contract with Microsoft so I can verify the price.

You can't verify the price. Well, I can only find one documented price and that's $199. You'll have to pay that amount or document your price.

One company tried this excuse with me. When I asked for documentation, the customer service representative said, "I don't have access to price information".

"Then how did you come up with the $10 price figure?"

"I just know it's the right amount."

"So what you are really doing is guessing. Well, my guess is the software is worth $1,000,000. Tell you what, let's split the difference. Send me a check for $500,005."

Excuse: We'll give you a refund but that applies to only Microsoft Windows, not the other bundled software.

Answer: No problem. Please provide me with a copy of all the other software on another disk so I can install it under Linux using the Wine program.

In all of these cases, follow up the phone conversation with a written letter describing what was said and why you're unhappy with it. Remember you are creating a record for the judge.

At some point in this process you'll either get your refund (rare) or you'll realize the manufacturer is going to be totally unreasonable. So now is the time to present your argument to an unbiased third party who has the power to get you your refund. This person is a Small Claims Court judge.

I am not a lawyer, so any legal advice I give isn't official, but I have been to small claims a few times and have won a few cases. (I lost a couple as well.) Also, my experience is limited to the California Small Claims Court; Courts in other states may be different.

The first step in filing suit is to figure out who you are suing. If you are going after a corporation, you need the name of the registered agent for the company. You can't serve legal papers on a fictional entity, such as a corporation, so the law requires the corporation to name someone--the registered agent--who handles all the legal stuff. You usually can get this information from your secretary of state. (In California, the web site is www.ss.ca.gov/business/business.htm.)

The next step is to fill out the forms. Most states now put these forms on-line. (California Small Claims forms can be found at www.courtinfo.ca.gov/selfhelp/smallclaims.) Most of the questions are simple and obvious.

One thing you should notice is the forms provide limited space to state why you are suing. This is because the judges don't want a lot of detail, only a simple explanation of what's going on. For a Windows refund case, you should write something like, "The computer came with a license that said if I didn't agree with it, I could return the software and get a refund. They won't give me a refund." If you've received a $10 check, you can say something like, "They would only give me a $10 refund for $199 of software."

After you fill out the forms, you have to go to small claims court and file your case. This usually means standing in line for a long time and giving your papers and a filing fee to the court clerk. The clerks can help you make sure you filled out the forms correctly, but don't ask them any questions about your case because they can't give legal advice.

In California, you need to have the papers served. This means someone needs to give the papers to the registered agent of the company being sued. One way of doing this is to have the court clerk send them out certified mail. This is the easiest way of serving most companies.

Now you prepare for your case. Judges like documentation. For example, you should have:

  • A copy of the initial letter asking for the money

  • Any responses sent by the company

  • The $10 check (if you received it)

  • A Windows XP advertisement showing the price is $199

  • A phone log giving details of every call you made trying to get your refund and the company's response

  • Any other document generated by this process

Number each document for easy identification. I also create a cover sheet with a one-line description of each document to help the judge locate any document he wants.

There's one document that I've not talked about yet, and that's the license agreement. I never have been able to find a copy of the license agreement in any of the printed materials that comes with the laptop. The only copy I know of is on the disk itself.

When you start the software, there is no way of printing the license without agreeing to it. To print it you must install the software. If you install the software, you agree to the license.

One thing you can do is get the court to issue a subpoena for the license and require that the company bring a copy of the license to court. Or you can ignore the problem and try your case without a printed copy of the license.

In my case I made a tactical decision not to subpoena the license. I didn't want to look like a lawyer or, more importantly, someone using legal tricks to try and get money out of a company. Also, I thought it would be better if I could go into court and argue: "Your honor, I would like to present you with a copy of the legal document governing this dispute, but according to its terms, I was not allowed to print it and was forced to destroy the copy on my hard drive." As neither one of these strategies has been tried in court, I can't tell you which one to try.

After you file suit, you're going to get a phone call from someone at the company to see if the case can be settled. Unlike most of the people you find handling the customer service line, these people are allowed to think and given the authority to do the right thing, even if it costs the company money.

In my case, the manufacturer called a week before the trial and sent me an offer the night before. The offer was for $199, but I had to agree to a gag order and could not talk about the case. That was unacceptable to me; I wanted $199 and court costs. (Court costs in this case were high, $135, because the company was located out of state.) Also, I wanted to be able to tell people what happened. So I went to court.

Contrary to what you see on TV, small claims court is based on common sense and reasonableness. Also small claims court is where the common man can plead his case against the big corporation.

Cases are handled quickly, so the judge is not interested in a lot of detail and complex arguments. I would suggest that your argument be something like, "Your honor, I read the license agreement, and it said they'd give me a refund. But they won't do it." That's it. A simple contract dispute. Judges understand things like that.

The thing that you do not want to do is be a nut case. Don't bash Microsoft; simply say the license contained terms you can't agree with. Don't bash the manufacturer, just present the facts. And make sure you have the paperwork to back up those facts in a form easily accessible to the judge.

The other thing you do not do in a courtroom is tell the judge about the law. The judge knows the law. And in his courtroom, whatever he or she says about the law is the law. If you try to quote the law to a judge, he or she probably will put you in your place by finding some way of interpreting the law in favor of the manufacturer, followed by a ruling against you.

The role you are playing is an ordinary Joe who has a simple problem and is being cheated out of a refund, because manufacturers' bureaucracy is too fouled up to give you your refund. Most judges are used to little guys being picked on by a big company that's too slow and stupid to follow the law. Make sure your judge sees you that way, and you'll probably win.

Here's how a typical case might go. Remember I'm not a lawyer, and I've not been to court on a case like this, so this probably is wrong. But, here's the fictional case of John Doe vs. the Big Computer Maker (BCM):

Judge: Mr. Doe, I've read your complaint. Why do you think that BCM owes you money.

Mr. Doe: When I first turned on my computer, I was presented with a license screen. It said that if I didn't agree to the license, I could get my money back from BCM.

Judge: Do you have a copy of the license?

Mr. Doe: No. The license stated that unless I agreed to it, I had to destroy all the data on the disk. This included the only copy of the license available to me.

Judge: What is it about the license that you don't like?

Mr. Doe: One of the terms of the license stated that I had to give Microsoft permission to do anything that they wanted to in the name of security. Later they defined security as preventing me from doing things on my computer that they didn't think I should do.

Judge: Such as?

Mr. Doe: They didn't define that. But in the past they have issued licenses that prevented people from using Microsoft software to develop code licensed under the GPL. Since I write such programs, that means that if I accepted the license, the computer could be made totally useless to me.

Judge (turns to BCM): Mr. Doe has explained why he thinks you owe him money. Why don't you think he should get it?

BCM: We agree that Mr. Doe should get his money, but the cost of Windows XP is only $10.00.

Mr. Doe: That's the wholesale cost. I bought my computer retail. Also, I have been unable to find any place that would sell it to me for $10.00. I even tried to buy it from BCM for that price, but they refused.

The only documented price I can find is the one I gave to your honor of $199.

Judge (to BMC): Do you have any evidence to backup up your price of $10?

BMC: Our agreements with Microsoft are confidential, and we can't reveal what they charge us for Windows XP.

Judge: Well, in the absence of any evidence to the contrary, I'm going to have to go with Mr. Doe's valuation. Judgment for the plaintiff of $199, plus court costs.

Again, I wish to stress that this case is fictional, but in real life the judge would probably spend only this much time on the case. Things go fast in small claims court.

My case was even simpler. The company did not show up. The entire case, as best I can remember it, went like this:

Judge: The defendant didn't show up, but Mr. Oualline you still have to prove your case. You say that they owe you some money. Why?

Me: I bought a computer from them, and when I booted it up it displayed a license agreement with a long list of restrictions that limited what I could do with my computer. It also said that if I didn't agree with the license agreement, I could get a refund.

Judge: I take it you didn't get your refund.

Me: They sent me an e-mail yesterday offering me one, but it was only for the software. I want my court costs too.

The judge then fumbled through my papers looking for the printout of the refund letter. He found it.

Judge: You removed the software from your system.

Me: Yes.

Judge: You installed something else.

Me: I installed Linux.

Judge: Judgment for the plaintiff.

Two things should be noted about this case. First, because only two letters were in my exhibit, I didn't supply a cover page listing them. That was a minor mistake as the judge momentarily was confused by what I had presented. The second thing to note is he didn't ask me what Linux was.

The main thing to remember throughout this process is to remain calm and reasonable. The more reasonable you seem, the more silly they seem. Remember you're dealing with a large company, and the larger an organization, the higher its potential for collective stupidity.

When that stupidity crosses the line and the company won't follow the law, that's where small claims court comes in. In court, most of the time common sense and reasonable win, even when it's a small guy against a big big company. And the case always ends with those magic words, "It is so ordered."

My refund check will be arriving this month.

______________________

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Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

I wish I had 200 bucks to throw away on something I don't want.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Yes, but the problem is, how much does the OEM version cost? If the PC maker and MS insist keeping it confidential, the only info about the price is the retail price.

OEM price

Anonymous's picture

You can actually purchase an OEM copy of Windows XP from some suppliers for about $115 CDN. See the following link http://www.tigerdirect.ca/applications/SearchTools/item-details.asp?EdpN...

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Just 2 thoughts...

1) One could always ask for a breakdown of the percentages or amounts of what they are paying for the computer go towards the various software packages before purchase. Failure for a company to do so would mean you take your business elsewhere and buy from someone else. If they want your business, they will break down the cost for you.

2) One could always refuse to pay for the bundelled software before purchase. When they give you the price of the system without the software you may then dispute and take your business elsewhere if it is too high.

Both of these prevent the company from doing the "put money in pocket and run" thing that so many of them do.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

First of all you are neglecting the fact that the product comes packaged with a written offer for a refund.

Secondly your entire argument is based on "taking your business elsewhere", however Microsoft has monopoly and they have been CONVICTED of abusing that monopoly to ILLEGALLY interfere with your ability to successfully do as you suggest.

Congratulations...

Anonymous's picture

...and good luck in actually getting the cheque without further problems.

Can't Resist--Trying to be funny

Anonymous's picture

Judge: You installed something else.
Me: I installed Linux.
Judge: Judgment for the plaintiff.

Obviously the judge took pity on you...

The judge took pity on us all..

Anonymous's picture

A judge that ruled in favor of this was taking pity on all of us. We ALL have to pay for an OS we don't want/use... fortunately SOMEONE had the courage and persistance to stick with it.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Dude, YOU ROCK! FSCK M$....

two words...

Anonymous's picture

right. on.

Here's an XP EULA for future lawsuiteers

Anonymous's picture

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you only as a convenience, and the inclusion of any link
does not imply an endorsement by Microsoft of the third
party site.

15. LIMITATION OF LIABILITY AND REMEDIES.
Notwithstanding any damages that you might incur for any
reason whatsoever (including, without limitation, all
damages referenced above and all direct or general
damages), the entire liability of Microsoft and any of its
suppliers under any provision of this EULA and your
exclusive remedy for all of the foregoing (except for any
remedy of repair or replacement elected by Microsoft with
respect to any breach of the Limited Warranty) shall be
limited to the greater of the amount actually paid by you
for the Product or U.S.$5.00. The foregoing limitations,
exclusions and disclaimers (including Sections 11, 12 and
13 above) shall apply to the maximum extent permitted by
applicable law, even if any remedy fails its
essential purpose.

16. U.S. GOVERNMENT LICENSE RIGHTS. All
Product provided to the U.S. Government pursuant to
solicitations issued on or after December 1, 1995 is
provided with the commercial license rights and
restrictions described elsewhere herein. All Product
provided to the U.S. Government pursuant to solicitations
issued prior to December 1, 1995 is provided with
"Restricted Rights" as provided for in FAR, 48 CFR 52.227-14
(JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988),
as applicable.

17. APPLICABLE LAW. If you acquired this Product in the United
States, this EULA is governed by the laws of the State of
Washington. If you acquired this Product in Canada, unless
expressly prohibited by local law, this EULA is governed
by the laws in force in the Province of Ontario, Canada;
and, in respect of any dispute which may arise hereunder,
you consent to the jurisdiction of the federal and
provincial courts sitting in Toronto, Ontario. If this
Product was acquired outside the United States, then local
law may apply.

18. ENTIRE AGREEMENT. This EULA (including
any addendum or amendment to this EULA which is included
with the Product) are the entire agreement between you and
Microsoft relating to the Product and the support services
(if any) and they supersede all prior or contemporaneous
oral or written communications, proposals and
representations with respect to the Product or any other
subject matter covered by this EULA. To the extent the
terms of any Microsoft policies or programs for support
services conflict with the terms of this EULA, the terms
of this EULA shall control.

19. The Product is protected by copyright and other intellectual
property laws and treaties. Microsoft or its suppliers own
the title, copyright, and other intellectual property
rights in the Product. The Product is licensed, not sold.

Si vous avez acquis votre produit Microsoft au CANADA, la
garantie limit

Re: Here's an XP EULA for future lawsuiteers

Anonymous's picture

This is a EULA for a full retail version of XP rather than an OEM version and thus irrelevant.

Actually...

Doomedelite's picture

It's the exact same (OEM and Retail versions)(I've had both), and you can go to http://www.microsoft.com/about/legal/useterms/default.aspx to take a look at all of their product liscenses.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

I'd avoid to bring up the GPL issue, else I would look like one of those bearded nuts haunting the streets with smelly t-shirts.

Bearded Nuts

Anonymous's picture

> I'd avoid to bring up the GPL issue, else I would look like one of
> those bearded nuts haunting the streets with smelly t-shirts.

I'm sure the judge dislikes those people at stoplights who wipe a damp COPYING printout on the windshield, scrape glass with a floppy, and ask for an open donation.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Interesting how I did the same thing with linux, I tried to return my purchased copy of Slackware because I had changed my mind and wanted Red hat.
Only in my case they refused to take it back since "anyone can download the software off the internet"
That may be but I still had to pay for it there :-P

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Wow, slackware comes packaged with an offer for a refund like the WindowsXP EULA has? I can't imagine how I overlooked that!

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

you paid?!!! HAHAHAHAHAH that's a good one- how much was it?

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

No, what's interesting is that windows is forced on the consumer and this person wanted his money back for a product that he didn't want (legally represented in the EULA)

You actively purchased the product. I have never seen a computer where Slackware was forced on the purchaser. Your parallel isn't even close.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Don't be an ass. If he bought a product at a store they should give him a refund. I say don't shop there anymore (and dl next time until you find a distro you like.. sheesh! or try lsl.com - it's like $5 with shipping).

I think the only parallel in this case would be a soda. He opened it (the box set or cd he bought), and once opened you can't return it. The Windows case is another story - they gave him the soda, he didn't open it, and they wanted to refund the recycling fee for the can.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Now IANAL but where I come from (UK), I'm pretty sure that your acceptance of their initial offer of $10 for returning XP would have rendered your subsequent claims invalid. You should have refused that offer and then pursued it via small claims.

Only if you bank the cheque for

Anonymous's picture

I'm in the UK as well, and IANAL, but I think it is certain that banking the first offer indicates acceptance, whereas holding it proves you have been made an offer. Why would an offer be made if payment is not due, one asks... Having settled what we are, we now argue over the price.

It occurs to me that if I hear of one success (pending collection) with a gag clause rejected, how many successes with the gag clause accepted have there been?

There may be a trickle or larger flow of refunds of $10 or $50 or $100 with a promise of silence (and actually both sides feeling they have come out of it reasonably well).

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

IANAL either but I seem to recall from my studies of contract law here in the UK (a few years ago as part of an accounting course) that acceptance of a small amount does not discharge a larger amount. I.E. If someone owes you

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

I am a lawyer and an accountant. What everyone is thinking of is cashing a cheque stated to be "in full and final settlement". If you do that you cannot claim the balance, because your action is acceptance of the offer of the sender to settle all claims for the amount of the cheque. If you don't cash it, or it isn't sent "in full and final settlement" you are quite entitled to proceed for the balance. It's not like you can ignore the rest of your credit card debt because the credit card company cashed your cheque for the mimimum amount!

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

I work in a complaints department and until you cash the check you have not accepted the offer. Some companies will send you compensation in the hopes that you will go away. However you do not have to accept that compensation(ie, cash it). They hope that the small compensation will be enough that you will not pursue a larger sum.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Now IANAL but where I come from (UK), I'm pretty sure that your acceptance of their initial offer of $10 for returning XP would have rendered your subsequent claims invalid. You should have refused that offer and then pursued it via small claims.

I'm even more anal: I read the article. You didn't: he never cashed the check!

Accepting the check in the mail isn't the same as accepting the offer. Failure to cash the check means you did not accept the offer. It might not be the same in the U.K., but here in the U.S., if there is no other written agreement other than the check, refusing to cash the check means refusing the offer.

Now, if he accepted the check over the phone via a Verbal Contract over the phone, then thats a different story. But he didn't say that he would be required to accept his $10 as his sole refund amount to receive $10. I suspect that he would have said that the company put additional restrictions on the $10 refund if they had done so, since he mentioned details during the "settlement" call such as a "gag order" for $199 plus no court costs.

Accepting an Offer...

Anonymous's picture

A contract is established the moment one party's offer is accepted by another party.

I'm sure that "Okay. Send me the check" would be considered acceptance of the offer by any judge. The check would not have to be made out, much less cashed, to establish the contract.

It seems to be just luck that this was not caught.

If you think you must establish the unreasonable value offered for settlement, you may ask that the offer be put in writting and then rejected.

Re: Accepting an Offer...

Anonymous's picture

I disagree.

You are correct that a contract is formed once an offer is accepted, but I do not think that receipt of a cheque constitutes acceptance. This is because a cheque is technically a "promissary note", or a *promise* of payment, not the actual payment. In other words, it is a promise by the person that wrote the cheque to pay the receiver a certain amount when the note is delivered to the issuer's bank, but it isn't the actual payment.

I would argue therefore that the contract isn't fulfilled until the cheque is (successfully) cashed. Refusing to cash the cheque is strong evidence that the offer was *not* accepted, so you definitely should NOT cash the cheque if you hope to obtain a larger amount.

Perhaps an actual lawyer (I am not one) could comment on this?

Re: Accepting an Offer...

Anonymous's picture

I think it was luck the issue of the cheque was not raised. But the issue over the retail value of the software could remove any 'acceptance' of a 'contract' by taking the cheque.
IANAL however.

If the guy states clearly that he wants a refund for the retail value of the software, and the company sends him $10, then the company turns around and says the retail of the software is $199, the company themselves have broken the contract IMO; they entered into the 'contract acceptance' with the cheque under false pretense.

Entering into a 'contract' under false pretense would make the contract invalid in most countries in the world one would think.

Re: Accepting an Offer...

Anonymous's picture

If the check had been issued, or even cashed, without an agreement that $10 would settle the matter, I agree.

But as I read the story, $10 was a counter-offer to the $199 and the counter-offer was accepted. This should have settled everything.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

I read the article too. It would depend on whether the initial acceptance of their offer of $10 would be sufficient for the Judge to throw the claim out.

It's a grey area - where is the line of acceptance drawn? Agreeing to accept $10? Receipt of the cheque? Cashing of the cheque?

If he presented his initial (albeit verbal) acceptance of their $10 offer to court as part of his case, I would imagine, (in the UK at least, and possibly in other states in the US and maybe in Cal. with other small claims Judges), that that would be sufficient to draw a line under the matter. Any further claims would be deemed spurious.

I would still reason that it would be a better course of action to refuse the (laughable) initial offer out of hand.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Oh and I forgot to mention that it may be prudent to request them to make their offer of $10 in writing prior to acceptance/refusal. Then you have paper evidence to present to the small claims Judge, without entering into the dubious area of precisely what actions constitute acceptance of the offer.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

IAAL (I am a lawyer) and I have the same concern. It's called "accord and satisfaction" -- you and the Corp reached an agreement and they carried it out. The statement "OK, send me the check" is the most troublesome.

Your best bet there is to endorse the check with "under protest" to affirm that it's at best a partial payment or to not cash it at all. Even there, I think you have trouble.

However, I think the strong points of this approach (or the weak points by the manufacturer/MSFT) is that you're prevented from printing the license before you accept (the web presupposes you have a computer to get it from there) and that they won't tell you up front what the amount refunded will be.

The latter seems like a fairly significant oversight by MSFT (promising a refund but forbidding that an amount of refund be discoverable). It's either a huge mistake or a bit of arrogance, believing that no one will successfully get a refund.

All in all, quite a good approach for someone with little or no legal experience! Now, for my own disclaimer: I don't practice this kind of law so take all this as a slightly better than average opinion but not one you should rely on for currency and legal accuracy. In short, your mileage may vary.

Regards.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

I would expect that as long as he never cashed the check he is in the clear.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Only if you cash the cheque.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

I think this isn't over until you can actual cash the cheque for good.

If I were the corporation, I would not send the cheque but tell you it is in the mail (and then somewhat lost it in the mail system). You would end up going to court a few more times; the cost to you would eventually make you to go away.
(i.e. missing your day job going to court, cost of filing court papers (request for claims of court cost is likely to be denied), time lost and gas money back and forth and etc.)

Did the Judge award your court cost, too? If he did, it must have been because the defendant did not shown up.

That's just my own opinion. All rights reserved :)

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

I've studied basic law (UK Civil Procedure Rules), and have a co-worker who has the problem of being awarded a claim, yet the company refuses to pay, and has a negative bank account (circa. 30,000 pounds). It's a hassle, but he was able to force the bank to reveal funds in their accounts (they wouldn't reveal one or two accounts because of some confidentiality) but would not release funds because the extent of overdraft. He now has to file a bankruptcy order against them to force bankruptcy (as they are under a court order to pay him funds, yet they claim they cannot, so therefore they must be put into receivership), and as the filer, he becomes the first creditor on the list for payout of funds (so he tells me). The other options is to hand it over to a commercial debt collector who will do all of this (and charge the company - not you - for the priviledge).

You can claim all additional costs (within reason) for pursuing the claim (if you have won). This is how a low cost traffic fine billows into multi-hundred because the bailiffs charge for coming around to see you, removal of goods, selling goods, etc.

In the UK, the small claims courts (result of the Wolf reforms) are designed to allow "access to all" for justice, and they are amazing effective and efficient for small claims and the average citizen.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

A commercial debt collector will tack on fees, but they also take a percentage of the original claim. A fairly large percentage, but often times it's the only reasonable way to get any money.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Isn't that called mail fraudulence?

Just a picky point

Anonymous's picture

Please check your article for incorrect word usage and/spelling.

It makes us look bad.

But, congratulations on your

per

Re: Just a picky point

Anonymous's picture

Please check your reply for redundant use of /.

Re: Just a picky point

Anonymous's picture

"word usage and/spelling"

That doesn't look like English to me. Normally we use spaces to separate words, not slashes.

Re: Just a picky point

Anonymous's picture

If you don't like the article, DON'T READ IT! I am sure the author is capable of reading his article and make changes if he wishes to do so. It's people like you that annoy the ***** out of people like me. Worry about yourself. He never said he was representing "us"

Re: Just a picky point

Anonymous's picture

The author also made the usual geek-error of using"try and" where he should have used "try to".

To the author of the amazingly stupid message that I'm replying to: If you don't like these kind of messages, DON'T READ THEM! When you find that impossible to do, buy some diapers for your bowel control problem.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Microsoft(r) Windows(r) XP Professional

END-USER LICENSE AGREEMENT

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be properly licensed to use a product identified by MS or
Microsoft Corporation as being eligible for the upgrade in
order to use the SOFTWARE ("Eligible Product"). For the
purpose of upgrade(s) only, "HARDWARE" shall mean the
computer system or computer system component with which you
received the Eligible Product. SOFTWARE labeled as an
upgrade replaces and/or supplements (and may disable, if
upgrading a Microsoft software product) the Eligible
Product which came with the HARDWARE. After upgrading, you
may no longer use the SOFTWARE that formed the basis for
your upgrade eligibility (unless otherwise provided). You
may use the resulting upgraded product only in accordance
with the terms of this EULA and only with the HARDWARE. If
the SOFTWARE is an upgrade of a component of a package of
software programs that you licensed as a single product,
the SOFTWARE may be used and transferred only as part of
that single product package and may not be separated for
use on more than one computer.

4. INTELLECTUAL PROPERTY RIGHTS. All title
and intellectual property rights in and to the SOFTWARE
(including but not limited to any images, photographs,
animations, video, audio, music, text and "applets,"
incorporated into the SOFTWARE), the accompanying printed
materials, and any copies of the SOFTWARE, are owned by
MS or its suppliers (including Microsoft Corporation). The
SOFTWARE is licensed, not sold. All title and intellectual
property rights in and to the content that is not contained
in the SOFTWARE, but which may be accessed through use of
the SOFTWARE is the property of the respective content
owner and may be protected by applicable copyright or other
intellectual property laws and treaties. Use of any on-
line services which may be accessed through the SOFTWARE
may be governed by the respective terms of use relating to
such services. If this SOFTWARE contains documentation
that is provided only in electronic form, you may print one
copy of such electronic documentation. You may not copy
the printed materials accompanying the SOFTWARE.

5. PRODUCT SUPPORT. SOFTWARE support for the
SOFTWARE is not provided by MS, Microsoft Corporation, or
their affiliates or subsidiaries. For product support,
please refer to Manufacturer's support number provided in
the documentation for the HARDWARE. Should you have any
questions concerning this EULA, or if you desire to contact
Manufacturer for any other reason, please refer to the
address provided in the documentation for the HARDWARE.

6. EXPORT RESTRICTIONS. You acknowledge
that the SOFTWARE is subject to U.S. export jurisdiction.
You agree to comply with all applicable international and
national laws that apply to the products, including the U.S.
Export Administration Regulations, as well as end-user,
end-use and destination restrictions issued by U.S. and
other governments. For additional information, see
http://www.microsoft.com/exporting/.

7. U.S. GOVERNMENT LICENSE RIGHTS. All
SOFTWARE PRODUCT provided to the U.S.
Government pursuant to solicitations issued on or after
December 1, 1995 is provided with the commercial rights and
restrictions described elsewhere herein. All SOFTWARE
provided to the U.S. Government pursuant to solicitations
issued prior to December 1, 1995 is provided with
RESTRICTED RIGHTS as provided for in
FAR, 48 CFR 52.227-14 (JUNE 1987) or FAR, 48 CFR 252.227-
7013 (OCT 1988), as applicable.

8. ADDITIONAL PROVISIONS. FOR THE LIMITED
WARRANTIES, LIMITATION OF LIABILITY,
AND OTHER SPECIAL PROVISIONS, PLEASE
REFER TO THE ADDITIONAL PROVISIONS
PROVIDED BELOW AND/OR OTHERWISE WITH
THE SOFTWARE. SUCH LIMITED WARRANTIES,
LIMITATION OF LIABILITY AND SPECIAL
PROVISIONS ARE AN INTEGRAL PART OF THIS
EULA.

APPENDIX

WARRANTY AND SPECIAL PROVISIONS FOR
AUSTRALIA, NEW ZEALAND OR PAPUA NEW GUINEA

EXPRESS LIMITED WARRANTY

CONSUMER RIGHTS. Consumers may have the benefit of certain
rights or remedies pursuant to the Trade Practices Act and
similar state and territory laws in Australia or the Consumer
Guarantees Act in New Zealand, in respect of which certain
liability may not be excluded.

LIMITED EXPRESS WARRANTY. Manufacturer
warrants that: (a) the SOFTWARE will perform substantially in
accordance with the accompanying Product Manual(s) for a period
of 90 days from the date of receipt; and (b) any Microsoft
hardware accompanying SOFTWARE will be free from defects in
materials and workmanship under normal use and service for a
period of 1 year from the date of receipt.

CUSTOMER REMEDIES. To the maximum extent permitted under
applicable law, Manufacturer's and its supplier's entire
liability and your exclusive remedy under the express warranty
is, at Manufacturer's option, either (a) return of the
price paid; or (b) repair or replacement of the SOFTWARE or
Microsoft hardware which does not meet the warranty and which is
returned to Manufacturer with a copy of your receipt. The
warranty is void if failure of the SOFTWARE or Microsoft hardware
has resulted from accident, abuse or misapplication. Any
replacement SOFTWARE and/or Microsoft hardware will be warranted
for the remainder of the original warranty period or 30 days,
whichever is longer.

LIMITATION OF LIABILITY. To the maximum
extent permitted by applicable law, any conditions or warranties
imposed or implied by law are hereby excluded. Consumers may
nevertheless have the benefit of certain rights or remedies
pursuant to the Trade Practices Act and similar state and
territory laws in Australia or the Consumer Guarantees Act in New
Zealand, in respect of which liability may not be excluded.
Insofar as such liability may not be excluded, then to the
maximum extent permitted by law, such liability is limited, at
the exclusive option of Manufacturer, to either (a) replacement
of the SOFTWARE (and any accompanying hardware supplied); or (b)
correction of defects in the SOFTWARE; or (c) payment of the cost
of having defects in the SOFTWARE (and any accompanying hardware
supplied).

EXCLUSION OF LIABILITY/DAMAGES. The
following is without prejudice to any rights you may have at law
which cannot legally be excluded or restricted. You acknowledge
that no promise, representation, warranty or undertaking has been
made or given by Manufacturer and/or Microsoft Corporation (or
related company of either) to any person or company on its behalf
in relation to the profitability of or any other consequences or
benefits to be obtained from the delivery or use of the SOFTWARE
and any accompanying Microsoft hardware, software, manuals or
written materials. You have relied upon your own skill and
judgement in deciding to acquire the SOFTWARE and any
accompanying hardware, manuals and written materials for use by
you. Except as and to the extent provided in this agreement,
neither Manufacturer and/or Microsoft Corporation (or related
company of either) will in any circumstances be liable for any
other damages whatsoever (including, without limitation, damages
for loss of business, business interruption, loss of business
information or other indirect or consequential loss) arising out
of the use or inability to use or supply or non-supply of the
SOFTWARE and any accompanying hardware and written materials.
Manufacturer's and/or Microsoft Corporation (or related company
of either) total liability under any provision of this agreement
is in any case limited to the amount actually paid by you for the
SOFTWARE and/or Microsoft hardware.

This agreement is governed by the laws of New South Wales,
Australia or, where supplies are made in New Zealand, by the laws
of New Zealand.

APPENDIX

WARRANTY AND SPECIAL PROVISIONS FOR
ENGLAND, SCOTLAND, WALES AND IRELAND

LIMITED WARRANTY

LIMITED WARRANTY. Manufacturer warrants that (a) the SOFTWARE
will perform substantially in accordance with the accompanying
written materials for a period of ninety (90) days from the date
of receipt, and (b) any Microsoft hardware accompanying the
SOFTWARE will be free from defects in materials and workmanship
under normal use and service for a period of one (1) year from
the date of receipt. Any implied warranties on the SOFTWARE and
Microsoft hardware are limited to ninety (90) days and one (1)
year, respectively. Some states/jurisdictions do not allow
limitations on duration of an implied warranty, so the above
limitation may not apply to you.

CUSTOMER REMEDIES. Manufacturer's and its suppliers' entire
liability and your exclusive remedy shall be, at Manufacturer's
option, either (a) return of the price paid, or (b) repair or
replacement of the SOFTWARE or hardware that does not meet this
Limited Warranty and which is returned to Manufacturer with a
copy of your receipt. This Limited Warranty is void if failure
of the SOFTWARE or hardware has resulted from accident, abuse, or
misapplication. Any replacement SOFTWARE or hardware will be
warranted for the remainder of the original warranty period or
thirty (30) days, whichever is longer.

NO OTHER WARRANTIES. To the maximum extent permitted by
applicable law, Manufacturer and its suppliers disclaim all other
representations, warranties, conditions or other terms, either
express or implied, including, but not limited to implied
warranties amd/or conditions of merchantability and fitness for a
particular purpose, with regard to the SOFTWARE, the accompanying
written materials, and any accompanying hardware. This limited
warranty gives you specific legal rights. You may have others
which vary from state/jurisdiction to state/jurisdiction.

NO LIABILITY FOR CONSEQUENTIAL DAMAGES. To
the maximum extent permitted by applicable law, in no event shall
Manufacturer or its suppliers be liable for any damages
whatsoever (including without limitation, direct or indirect
damages for personal injury, loss of business profits, business
interruption, loss of business information, or any other
pecuniary loss) arising out of the use of or inability to use
this product, even if Manufacturer has been advised of the
possibility of such damages. In any case, Manufacturer's and its
suppliers' entire liability under any provision of this agreement
shall be limited to the amount actually paid by you for the
SOFTWARE and/or Microsoft hardware. Because some states
/jurisdictions do not allow the exclusion or limitation of
liability for consequential or incidental damages, the above
limitation may not apply to you.

SPECIAL PROVISIONS

Reverse Engineering: If you acquired the SOFTWARE in the
European Community, you may not reverse engineer, decompile, or
dissassemble the SOFTWARE except to the extent and for the
express purposes authorized by applicable law.

This Software License Agreement is governed by the laws
of England.

APPENDIX

WARRANTY AND SPECIAL PROVISIONS FOR
CANADA

LIMITED WARRANTY

LIMITED WARRANTY. Manufacturer warrants that (a) the SOFTWARE
will perform substantially in accordance with the accompanying
written materials for a period of ninety (90) days from the date
of receipt, and (b) any Microsoft hardware accompanying the
SOFTWARE will be free from defects in materials and workmanship
under normal use and service for a period of one (1) year from
the date of receipt. Any implied warranties or conditions on the
SOFTWARE and Microsoft hardware are limited to ninety (90) days
and one (1) year, respectively. Some states/jurisdictions do not
allow limitations on duration of an implied warranty, so the
above limitation may not apply to you.

CUSTOMER REMEDIES. Manufacturer's and its suppliers' entire
liability and your exclusive remedy shall be, at Manufacturer's
option, either (a) return of the price paid, or (b) repair or
replacement of the SOFTWARE or hardware that does not meet this
Limited Warranty and which is returned to Manufacturer with a
copy of your receipt. This Limited Warranty is void if failure
of the SOFTWARE or hardware has resulted from accident, abuse, or
misapplication. Any replacement SOFTWARE or hardware will be
warranted for the remainder of the original warranty period or
thirty (30) days, whichever is longer.

NO OTHER WARRANTIES. To the maximum extent permitted by
applicable law, Manufacturer and its suppliers disclaim all other
warranties, either express or implied, including, but not limited
to implied warranties of merchantability and fitness for a
particular purpose, with regard to the SOFTWARE, the accompanying
written materials, and any accompanying hardware. This limited
warranty gives you specific legal rights. You may have others
which vary from state/jurisdiction to state/jurisdiction.

NO LIABILITY FOR CONSEQUENTIAL DAMAGES. To
the maximum extent permitted by applicable law, in no event shall
Manufacturer or its suppliers be liable for any damages
whatsoever (including without limitation, direct or indirect
damages for personal injury, loss of business profits, business
interruption, loss of business information, or any other
pecuniary loss) arising out of the use of or inability to use
this product, even if Manufacturer has been advised of the
possibility of such damages. In any case, Manufacturer's and its
suppliers' entire liability under any provision of this agreement
shall be limited to the amount actually paid by you for the
SOFTWARE and/or Microsoft hardware. Because some states
/jurisdictions do not allow the exclusion or limitation of
liability for consequential or incidental damages, the above
limitation may not apply to you.

This Software License Agreement is governed by the laws of the
Province of Ontario, Canada. Each of the parties hereto
irrevocably attorns to the jurisdiction of the courts of the
Province of Ontario and further agrees to commence any litigation
which may arise hereunder in the courts located in the Judicial
District of York, Province of Ontario.

APPENDIX

WARRANTY AND SPECIAL PROVISIONS FOR
THE UNITED STATES OF AMERICA AND ANY OTHER
COUNTRY

LIMITED WARRANTY

LIMITED WARRANTY. Manufacturer warrants that (a) the SOFTWARE
will perform substantially in accordance with the accompanying
written materials for a period of ninety (90) days from the date
of receipt, and (b) any Microsoft hardware accompanying the
SOFTWARE will be free from defects in materials and workmanship
under normal use and service for a period of one (1) year from
the date of receipt. Any implied warranties on the SOFTWARE and
Microsoft hardware are limited to ninety (90) days and one (1)
year, respectively. Some states/jurisdictions do not allow
limitations on duration of an implied warranty, so the above
limitation may not apply to you.

CUSTOMER REMEDIES. Manufacturer's and its suppliers' entire
liability and your exclusive remedy shall be, at Manufacturer's
option, either (a) return of the price paid, or (b) repair or
replacement of the SOFTWARE or hardware that does not meet this
Limited Warranty and which is returned to Manufacturer with a
copy of your receipt. This Limited Warranty is void if failure
of the SOFTWARE or hardware has resulted from accident, abuse, or
misapplication. Any replacement SOFTWARE or hardware will be
warranted for the remainder of the original warranty period or
thirty (30) days, whichever is longer.

NO OTHER WARRANTIES. To the maximum extent permitted by
applicable law, Manufacturer and its suppliers disclaim all other
warranties, either express or implied, including, but not limited
to implied warranties of merchantability and fitness for a
particular purpose, with regard to the SOFTWARE, the accompanying
written materials, and any accompanying hardware. This limited
warranty gives you specific legal rights. You may have others
which vary from state/jurisdiction to state/jurisdiction.

NO LIABILITY FOR CONSEQUENTIAL DAMAGES. To
the maximum extent permitted by applicable law, in no event shall
Manufacturer or its suppliers be liable for any damages
whatsoever (including without limitation, special, incidental,
consequential, or indirect damages for personal injury, loss of
business profits, business interruption, loss of business
information, or any other pecuniary loss) arising out of the use
of or inability to use this product, even if Manufacturer has
been advised of the possibility of such damages. In any case,
Manufacturer's and its suppliers' entire liability under any
provision of this agreement shall be limited to the amount
actually paid by you for the SOFTWARE and/or Microsoft hardware.
Because some states/jurisdictions do not allow the exclusion or
limitation of liability for consequential or incidental damages,
the above limitation may not apply to you.

SPECIAL PROVISIONS

U.S. GOVERNMENT LICENSE RIGHTS. All SOFTWARE
provided to the U.S. Government pursuant to solicitations issued
on or after December 1, 1995 is provided with the commercial
license rights and restrictions described in this EULA. All
SOFTWARE provided to the U.S. Government pursuant to
solicitations issued prior to December 1, 1995 is
provided with "Restricted Rights" as provided for in FAR, 48 CFR
52.227-14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988),
as applicable. Manufacturer is responsible for ensuring the
SOFTWARE is marked with the "Restricted Rights Notice" or
"Restricted Rights Legend," as required. All rights not expressly
granted are reserved.

If you acquired the SOFTWARE in the United States of America,
this Software License Agreement and Warranty are governed by the
laws of the State of Washington, U.S.A. If you acquired the
SOFTWARE outside the United States of America, local law
may apply.

From the EULA: "If you do

Anonymous's picture

From the EULA: "If you do not agree to the terms of this EULA, you may not use or
copy the SOFTWARE, and you should promptly contact Manufacturer
for instructions on return of the unused product(s) in accordance
with Manufacturer's return policies."

This does NOT grant a right to get a refund of Windows, nor does it grant the right to return just Windows without returning the entire computer. I don't see how people could so misinterpret this sentence to think it says "If you don't like Windows, the manufacturer has to let you keep the computer but give you the full retail cost of Windows." It doesn't even say they have to give you a refund at all in any case--it just says you have to return it (perhaps without any compensation)!

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

"except that, with respect to Microsoft Windows 98 (Second
Edition)"

98SE? We're discussing XP.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

What an idiot, he wastes several hours of his life on getting $300 because he likes Linux. I go to Slashdot and other places to hear "the other side of logic" and sometimes I just shake my head. You guys are supporting OS/2 essentially. Until all distros unite with one common vision there's no future for Linux because of brand dilution and customer confusion. Also, wait until SCO is done collecting royalties for the SMP code that was manhandled to get Linux legit in the Enterprise. Not only does it not work at the desktop for anything, but then it'll lose it's footing in the Enterprise. Nice.

It is nice, most of us have principals.

Anonymous's picture

"If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that ye were our countrymen."

-- Samuel Adams

Amen Sam, amen.

Re: It is nice, most of us have principals.

Anonymous's picture

I was going to post a comment but after reading that quote there was nothing left to say.

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