4. Limited guarantee/
Microsoft, online shops
The product guarantee is clearly regulated
in certain countries. In most places, it's a 24 months guarantee for new
purchases, 12 months for used wares (with exceptions, possibly for perishable
goods). Clauses like in image 4 above, quoted from the Mac OS X are therefore
absolutely unauthorised in this form - what Apple does not obstruct is to limit
the guarantee against damages for an absurdly low USD50 (RM150). In the Apple
store the activity continues: Here Apple rules out the guarantee for
downloading errors and grants the user 14 days to complain about the defect.
Even for downloads, the duty for delivery however applies. Apple must offer the
paid program and manage the legally claimed 24 months guarantee claim. In small
web shops however one finds clauses like: "A guarantee for transport
damages is excluded." These are exactly unauthorised clauses that limited
the guarantee limit to four times the purchase price.
Mac OS X - "...the Apple Software
and services are delivered without guarantee against defects and [...] is
delivered with all errors and without guaran tee of any type."
5. Non-binding delivery time/
Vodafone, online shops
When the ordered products do not come, it
is irritating. Above all, small shops like eBay willingly abandon all the binding
information for delivery time. Of course this practice has several courts among
others the like the OLG Frankfurt to declare it as unauthorised. To that, even
the formulations like "in principle" are counted. But large companies
like Vodafone write clauses in their delivery conditions that goes to give it
rights of a non-binding delivery time.
eBay-Shops - "Delivery dates are
always without obligation and deliveries only on advance payment"
6. Limited use of purchased content/
Adobe, iTunes, Mac OS
You might know already that the MP3s
purchased in iTunes do not belong to you, as you only acquire a user's license
for it. But the iTunes ToS go even further: So you can download a few of the
contents only once and cannot replace it when there is hardware defect. Apple
pushes the responsibility onto the user if it is not legally valid. Software
licenses, like those by Windows or Photoshop however limit the use of a license
so that you cannot use Photoshop on a dual-boot computer with a license on both
systems. Such clauses, although not prohibited, are quite surprising and must
be visible before the purchase as one can see the ToS only during installation.
Photoshop - "When you have a dual
boot computer, [...] you must purchase a separate license for every
7. Misleading claims of services/
Telekom, online shops
In a web shop the products cannot really be
viewed so one has to rely on the images. But when shops writes in their ToS:
"Subject to modifications and errors" it can be even more irritating.
Of course such clauses may not be in the SBC but only -like in catalogues-next
to the images. Even advertisement may not be misleading. The telecom company
advertised like this for a long time for its 50 Mb VDSL offer and hid the fact
that it would be 6mbps from 100GB onwards. Just to avoid something like this it
would be better to read the ToS. The passage quoted in image 7 for the Norton
Internet Securit 2012 is also an ineffective ToS clause - Symantec would have
to refer to it before purchase.
Symantec - "During the installation
process it can appear that the software uninstalls or deactivates other
8. Non-transparency rule violation/
Whoever makes a contract or registers on a
website, sees the ToS once - and never after that. The problem: Online services
like Facebook change the usage conditions every now and then. Facebook makes it
simple and gives the changes over the "Facebook Site Governance"
page. Only in individual cases the user receives a direct message. To demand a
silent agreement by the user is also unauthorised, like the missing details of
reasons for the changes. That violates the transparency rule, a core element of
the most ToS rights. As a user, one must know the reasons, get an appropriate
reaction time and agree to them explicitly.
Vodafone - "Vodafone can adapt to
the [...] usage payments, without which a right to give notice to the customers
9. Claiming for damages/
Total claims for damages or other fees are
seldom permissible and mostly set much too high. In 2010 the Higher Regional
Court of Koblenz decided against ToS head 1&1 that an all inclusive penalty
of 2,500 (RM10,200) euros for every usage violation of the user is unauthorised
- of course it is still there in the ToS. Even the demanded 45 euros plus 75
percent of the outstanding monthly payment for dismissal are set very high
according to Hild. The problem: Many users pay these penalties out of ignorance
although they would perhaps get their right in court. Of course it is similarly
very tedious to take legal action - and with it also deterrent - like reading
9/1&1 - "For every case of
culpable violence [...] 1&1 promises the customer a penalty in the range of