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Re: [TCLUG:3540] Somewhat OT: Toshiba/Microsoft Saga
Well, the thing is, if you are buying a desktop, most of us linux users
will buy it part-by-part and avoid getting Windows at all. Maybe it's
worth paying the $80 extra to get it "bundled" with the motherboard just
for the fun of trying to get a refund. :P
----
Nate Carlson
the infinite loop
natecars@infiniteloop.com
On Tue, 19 Jan 1999, Shan Moon wrote:
> This could be fun if everyone who purchased Linux did this... I'm tempted
> to try this tactic with my next computer purchase....
>
> _________________________________________
>
> http://www.netcraft.com.au/geoffrey/toshiba.html
> Toshiba/Microsoft Saga
> Geoffrey D. Bennett
> geoffrey@netcraft.com.au
>
> I hope that this web page will prove useful to those people who want to
> purchase a laptop without Microsoft Windows. The short summary is:
>
> It is near impossible to buy a laptop without Windows
> The Microsoft Software License Agreement allows you to return the software
> if you do not agree to its terms.
> It is difficult, but not impossible to get Toshiba (at least in Australia)
> to send you a cheque in return for the Windows License.
> I purchased a Toshiba notebook on February 2nd this year from my local
> Linux-friendly supplier (Nick Stock at Cybernet Systems). Being the devoted
> Linux user I am, I didn't want to pay for a copy of Microsoft Windows if I
> wasn't going to use it. Unfortunately, Nick informed me that it was
> impossible to purchase a Toshiba (or practically any brand of notebook)
> without Windows coming along for the ride.
>
> When I received the computer, I noted that the ``End User License Agreement
> for Microsoft Software'' stated that I did not have to accept the
> agreeement, and if I didn't agree to its terms, I could contact the
> manufacturer for instructions on returning the software for a refund. That
> seemed like just what I wanted, so I contacted Toshiba in Adelaide and
> spoke with Kon Karanastasis.
>
> Kon had apparently never heard of anyone wanting to return just the
> software for a refund, so it took a while to explain what I wanted. "I want
> to give you back the Microsoft software and receive a cheque in return",
> "We don't do that", "But the license agreement that Toshiba supplied with
> my computer says you will". Kon asked that I send him a letter explaining
> what I wanted, along with a copy of the invoice for the notebook and he'd
> find out what could be done.
>
> Here's the letter:
>
> NetCraft Australia
> PO Box 390 Blackwood 5051
> Phone: 08 8370 3650
> Fax: 08 8278 8325
>
> 2 February 1998
>
> Mr. Kon Karanastasis
> Toshiba
> 5 Hurtle Square
> Adelaide SA 5000
>
> Dear Kon,
>
> With reference to my phone call to you today, I have purchased a Toshiba
> Satellite Pro laptop computer which included a copy of Microsoft Windows 95
> pre-installed. The ``End-User License Agreement For Microsoft Software''
> included with the computer states in part:
>
> If you do not agree to the terms of this EULA, PC Manufacturer and
> Microsoft are unwilling to license the SOFTWARE PRODUCT to you. In such
> event, you may not use or copy the SOFTWARE PRODUCT, and you should
> promptly contact PC Manufacturer for instructions on return of the unused
> products(s) for a refund.
> I do not agree to the terms of the End-User License Agreement for the
> Windows 95 software, and would like to return the software for a refund.
> Please supply me with instructions on how to return the software.
>
> As you requested, I have enclosed a copy of the invoice for the Toshiba
> laptop computer.
>
> Regards,
>
> (signed)
>
> Geoffrey D. Bennett
> Computer Systems Manager
> NetCraft Australia
>
> Kon got back to me and the word from Sydney was that Toshiba would be happy
> for me to return my notebook and receive a full refund, but they were not
> willing to give me a refund on just the Microsoft Software. I explained
> that this was unacceptable; the license agreement for the Software
> specifically said that I could return just the Software. Too bad
> apparently; Toshiba have a contractual agreement with Microsoft where they
> can't unbundle the software from the hardware, therefore they wouldn't give
> me a refund.
>
> I obviously wasn't happy with this, so Kon said that the person to talk to
> was Laurence White from Product Planning in Toshiba. I sent him an email
> explaining the situation:
>
> Date: Tue, 3 Mar 1998 16:25:06 +1030 (CST)
> From: "Geoffrey D. Bennett" <g@netcraft.com.au>
> To: laurence_white@isd.toshiba.com.au
> Subject: Return of unused software
>
> Dear Laurence,
>
> Kon Karanastasis from Toshiba in Adelaide said that I should contact
> you regarding the return of the unused Microsoft software that came
> with my Toshiba laptop.
>
> On the 2nd of February this year, I purchased a Toshiba Satellite Pro
> laptop computer which included a copy of Microsoft Windows 95
> pre-installed. The ``End-User License Agreement For Microsoft
> Software'' that was included with my computer states in part:
>
> If you do not agree to the terms of this EULA, PC Manufacturer and
> Microsoft are unwilling to license the SOFTWARE PRODUCT to you. In
> such event, you may not use or copy the SOFTWARE PRODUCT, and you
> should promptly contact PC Manufacturer for instructions on return
> of the unused products(s) for a refund.
>
> I did not agree to the terms of the End-User License Agreement for the
> Microsoft software, so I refrained from using the software, and I
> completely removed it without creating any backup.
>
> I would now like to return the unused software product for a refund.
> Could you please supply me with instructions on how to return the
> software and obtain a refund.
>
> Regards,
> --
> Geoffrey D. Bennett (geoffrey@netcraft.com.au)
> Computer Systems Manager, NetCraft Australia
> http://www.netcraft.com.au/geoffrey/
> Red Hat Linux Resellers: http://www.netcraft.com.au/redhat/
>
> Laurence told me essentially the same thing that Kon did. I can return the
> notebook, but I can't return just the Software:
> Date: Thu, 05 Mar 98 10:08:40
> From: "laurence white" <laurence_white@isd.toshiba.com.au>
> To: "Geoffrey D. Bennett" <g@netcraft.com.au>
> Subject: Re: Return of unused software
>
> Hello Geoffrey,
>
> I am the Toshiba Product Manager and am responsible for all notebooks.
>
> The EULA you have received is a generic Microsoft document supplied by
> all
> manufacturers as proof of the purchase of your operating system.
>
> As you can see in the wording of the text you need to contact a vendor
> for
> instructions and Toshiba is unwilling to refund the cost of the operating
> system.
>
> Toshiba is required by Microsoft contract to provide and purchase a valid
> operating system. Toshiba cannot get a refund from Microsoft.
>
> I hope you can understand our position. Toshiba must pay Microsoft at
> point
> of manufacture and cannot get a refund from Microsoft, so we can't refund
> you.
>
> If we gave you a refund on the operating system component then Toshiba
> cannot claim this on Microsoft.
>
> I hope this explains our position with Microsoft Software.
>
> Regards
> Laurie White
> Toshiba Australia
>
> (my original message was included here)
>
> If at first you don't succeed... so I asked again, explaining why his
> reasons for refusing a refund were not valid:
> Date: Thu, 19 Mar 1998 02:26:22 +1030 (CST)
> From: "Geoffrey D. Bennett" <g@netcraft.com.au>
> To: laurence_white@isd.toshiba.com.au (laurence white)
> Subject: Re: Return of unused software
>
> Hi Laurie,
>
> Thank you for your reply to my message regarding the return of unused
> Microsoft software. Although I understand Toshiba's position, it is
> not acceptable for reasons I give below, and therefore, I would like
> to request for the second time you to send me instructions on how to
> return the unused Microsoft software to Toshiba and obtain a refund
> for that software.
>
> You wrote:
>
> > Hello Geoffrey,
> >
> > I am the Toshiba Product Manager and am responsible for all notebooks.
> >
> > The EULA you have received is a generic Microsoft document supplied by all
> > manufacturers as proof of the purchase of your operating system.
>
> I'm not sure how this is relevant? The EULA certainly is my proof of
> purchase, but it is a lot more than that. The EULA states the terms
> under which the software is to be licensed to me under. I have
> rejected those terms, and according to the agreement I may not use or
> copy the software and I should return it for a refund.
>
> The EULA is the document that specifically says that PC Manufacturer
> (Toshiba in this case) and Microsoft are unwilling to license the
> software to me, and I should contact Toshiba for instructions on
> returning the software for a refund.
>
> > As you can see in the wording of the text you need to contact a vendor for
> > instructions and Toshiba is unwilling to refund the cost of the operating
> > system.
>
> Toshiba might be unwilling this month to refund the cost of the
> operating system to me, but the EULA which was sent to me last month
> by Toshiba with the computer when I purchased it does not include a
> provision for you to reject my claim for a refund.
>
> If Toshiba were not willing to refund the cost of unwanted software to
> me when I purchased the product, Toshiba should not have supplied me
> with a license agreement that states that I can return the software
> for a refund.
>
> > Toshiba is required by Microsoft contract to provide and purchase a valid
> > operating system. Toshiba cannot get a refund from Microsoft.
>
> The agreement between Toshiba and Microsoft is irrelevant to me.
>
> The agreement between myself, Toshiba, and Microsoft says that I can
> return the product for a refund. Whether or not Toshiba can then
> receive a refund from Microsoft is really none of my business.
>
> > I hope you can understand our position. Toshiba must pay Microsoft at point
> > of manufacture and cannot get a refund from Microsoft, so we can't refund
> > you.
> >
> > If we gave you a refund on the operating system component then Toshiba
> > cannot claim this on Microsoft.
> >
> > I hope this explains our position with Microsoft Software.
>
> I do understand your position, but if Toshiba enter into an agreement
> with Microsoft where Toshiba is required to purchase Microsoft
> software for each notebook, then Toshiba should be willing to wear the
> cost of that software if I do not want to purchase that software from
> you.
>
> Surely the discounts obtained by purchasing Microsoft software with
> every notebook manufactured far outweigh the cost associated with me
> not wanting to purchase the Microsoft software from Toshiba? If they
> don't, perhaps Toshiba should review their agreement with Microsoft.
>
> I look forward to your reply.
>
> Regards,
> Geoffrey.
>
> (my original message was included here)
>
> --
> Geoffrey D. Bennett (geoffrey@netcraft.com.au)
> Computer Systems Manager, NetCraft Australia
> http://www.netcraft.com.au/geoffrey/
> Red Hat Linux Resellers: http://www.netcraft.com.au/redhat/
>
> He obviously didn't like my arguments:
> Date: Thu, 19 Mar 98 09:38:15
> From: "laurence white" <laurence_white@isd.toshiba.com.au>
> To: "Geoffrey D. Bennett" <g@netcraft.com.au>
> Subject: Re[2]: Return of unused software
>
> Geoffrey,
>
> Toshiba is happy for you to return the complete computer system for a
> refund to the place of purchase. We are not willing to sell just the
> computer system to you.
>
> If you have any further questions regarding this matter you will need
> to talk with our legal department.
>
> Regards
> Laurie White
>
> (my first reply was included here)
>
> I called the ACCC (Australian Competition and Consumer Commission) who said
> that selling one product bundled with another as Toshiba are doing is an
> okay thing to do, and then I called Consumer Affairs who suggested I see a
> lawyer. I ended up going to see someone from the Legal Services Commission
> who said that I could take my case to the small claims court and I'd
> probably win, but if I didn't then I'd be up for their expenses (plane trip
> from Sydney plus hotel accomodation). I definately didn't want to take that
> risk, so I decided to give in.
>
> By this time, the model of notebook I had purchased was discontinued (it
> had been about two months since I purchased it) and the next model up was
> $700 cheaper than what I had paid for mine. Since Toshiba were offering me
> the chance to return the entire computer, this was obviously a good deal.
> They were effectively offering me $700 and a notebook upgrade :-). I didn't
> really want to pursue this option, since I would still be paying for a copy
> of Microsoft Windows that I didn't want (it's the principle of the thing!),
> but I didn't see any other option.
>
> So I contacted Nick, who was quite happy to take the computer back from me
> provided that his supplier would take it back from him. Unfortunately, his
> supplier didn't like this idea and were quite ticked off that Toshiba would
> say to me that I could return a pre-loved, two-month old, and discontinued
> computer at their expense. They wanted to know who at Toshiba told me this.
>
> I then get an email (quite unexpectedly) from Kon Karanastasis, who wrote:
> Date: Thu, 02 Apr 98 13:46:11
> From: "kon karanastasis" <kon_karanastasis@isd.toshiba.com.au>
> To: geoffrey@netcraft.com.au
> Subject: Return of Unused Software
>
> Dear Geoffrey
>
> In respect to your formal request for a refund for unused software on your
> Toshiba Laptop Computer the matter is currently being assessed by our
> General Affairs Division.
>
> Before they reach a final decision they have asked me the following questions
> in respect to your purchase ;
>
>
> 1. Mr Bennett states that he purchased the computer on 2nd
> February 1998.
>
> From whom did Mr Bennett purchase the computer?
>
> 2. Did he rely on a brochure in making his decision?
>
> 3. At the time of purchase did he notify the vendor that he did
> not want the standard MS operating system?
>
> 4. Did Mr Bennett read the End User License Agreement prior to
> turning on the Computer for the first time?
>
> 5. Mr Bennett states that he "refrained from using the
> software, and .... completely removed it without creating
> any backup". How was this accomplished? When was the
> Operating System deleted?
>
> 6. Has the computer been used between the dates of 2nd February
> 1998 and 3rd March 1998? If in the affirmative, utilising
> what operating system?
>
> If you could please provide answers to these questions, I will ensure a speedy
> resolution
> of this issue.
>
>
> Regards
> Kon Karanastasis
> Toshiba ISD
>
> Email Add : Kon_Karanastasis@isd.toshiba.com.au
> Phone : 08 8223 2878
> Fax : 08 8232 5022
>
> I thought that the above message was a bit strange, since I hadn't talked
> to Kon for quite a while now, and I wasn't asking them consider a refund
> for the unused software anymore. I wrote the following email back:
>
> Date: Thu, 2 Apr 1998 15:42:33 +0930 (CST)
> From: "Geoffrey D. Bennett" <g@netcraft.com.au>
> To: kon_karanastasis@isd.toshiba.com.au (kon karanastasis)
> Subject: Re: Return of Unused Software
>
> Dear Kon,
>
> You wrote:
>
> > Dear Geoffrey
> >
> > In respect to your formal request for a refund for unused software on your
> > Toshiba Laptop Computer the matter is currently being assessed by our
> > General Affairs Division.
>
> I'm a bit confused here, because my refund for unused software has
> been assessed and denied three times already, each time with an offer
> for me to return the entire computer, and the last time also telling
> me that I'd need to contact Toshiba's Legal Department if I wanted to
> take the issue of returning just the software any further. After the
> three refusals, I decided to take up the multiple offers of returning
> the computer, so I contacted my supplier to arrange doing so.
>
> Are Toshiba now reconsidering the refund for the unused software? If
> so, that is fine, but if it is refused (for the fourth time), I will
> be again wanting to take you up on your offer for me to return the
> entire computer.
>
> > Before they reach a final decision they have asked me the following questions
> > in respect to your purchase ;
> >
> > 1. Mr Bennett states that he purchased the computer on 2nd
> > February 1998.
> >
> > From whom did Mr Bennett purchase the computer?
>
> I purchased the computer from Nicholas Stock at Cybernet Systems
> (017 864 264). I sent you a copy of the invoice on February 2nd.
>
> > 2. Did he rely on a brochure in making his decision?
>
> No, I didn't rely on a brochure in making my decision. I read many
> brochures, viewed many web pages, and talked to many people when
> deciding which notebook to purchase.
>
> > 3. At the time of purchase did he notify the vendor that he did
> > not want the standard MS operating system?
>
> My vendor was aware before I purchased the computer that I did not
> want the standard MS operating system. My vendor had already informed
> me that it was not possible to have Windows removed from the computer
> before purchasing it.
>
> > 4. Did Mr Bennett read the End User License Agreement prior to
> > turning on the Computer for the first time?
>
> I did. The license agrement said that if I did not agree to its
> terms, Toshiba and Microsoft were unwilling to license the software to
> me, and I could return the software for a refund. Therefore, I did
> not use the software, and I contacted Kon to arrange a refund.
>
> > 5. Mr Bennett states that he "refrained from using the
> > software, and .... completely removed it without creating
> > any backup". How was this accomplished? When was the
> > Operating System deleted?
>
> I removed the operating system by connecting the floppy disk drive,
> inserting a Red Hat Linux boot floppy, turning on the computer,
> deleting all partitions on the hard disk, and installing Linux. I did
> this on the same day I received the computer.
>
> > 6. Has the computer been used between the dates of 2nd February
> > 1998 and 3rd March 1998? If in the affirmative, utilising
> > what operating system?
>
> Yes, the computer has been used the entire time I have had it. The
> operating system used has been the Red Hat Linux operating system.
>
> > If you could please provide answers to these questions, I will ensure a
> speedy
> > resolution
> > of this issue.
>
> Thank you,
> --
> Geoffrey D. Bennett (geoffrey@netcraft.com.au)
> Computer Systems Manager, NetCraft Australia
> http://www.netcraft.com.au/geoffrey/
> Red Hat Linux Resellers: http://www.netcraft.com.au/redhat/
>
> The next day I received an email back from Kon:
> Date: Fri, 03 Apr 98 13:14:32
> From: "kon karanastasis" <kon_karanastasis@isd.toshiba.com.au>
> To: "Geoffrey D. Bennett" <g@netcraft.com.au>
> Subject: RE: Return of Unused Software
>
> Geoffrey
>
> Toshiba's General Affairs Division have assessed your claim for a refund of the
> unused Microsoft Software.
>
> Toshiba is prepared to offer you $110.00 (AUS) as a refund for not using the
> bundled software.
>
> Please confirm your acceptance (or otherwise) of this offer and we will
> implement the
> appropriate actions to settle this matter.
>
> Regards
>
> Kon Karanastasis
>
> (the message he replied to was included here)
>
> Since this was exactly what I was wanting, I wrote back:
> Date: Fri, 3 Apr 1998 16:21:43 +0930 (CST)
> From: "Geoffrey D. Bennett" <g@netcraft.com.au>
> To: kon_karanastasis@isd.toshiba.com.au (kon karanastasis)
> Subject: Re: Return of Unused Software
>
> > Geoffrey
> >
> > Toshiba's General Affairs Division have assessed your claim for a refund
> of the
> > unused Microsoft Software.
> >
> > Toshiba is prepared to offer you $110.00 (AUS) as a refund for not using the
> > bundled software.
> >
> > Please confirm your acceptance (or otherwise) of this offer and we will
> > implement the
> > appropriate actions to settle this matter.
>
> Hi Kon,
>
> That sounds good. Let me know what the next step is.
>
> Regards,
> --
> Geoffrey D. Bennett (geoffrey@netcraft.com.au)
> Computer Systems Manager, NetCraft Australia
> http://www.netcraft.com.au/geoffrey/
> Red Hat Linux Resellers: http://www.netcraft.com.au/redhat/
>
> Time passed, and I called Kon to find out what was happening to my cheque.
> He explained that in big companies, weird things like giving money to
> customers for return of Microsoft software can take a while to happen. A
> little later I received an email from him:
>
> Date: Thu, 07 May 98 14:51:43 +1000
> From: "KON KARANASTASIS"<kon_karanastasis@tap.toshiba.com.au>
> To: <geoffrey@netcraft.com.au>
> Subject: Refund for Unused Software
>
> Geoffrey
>
> I've followed up the progress of your refund cheque.
>
> I still can't give you a definite date, however, I think I've managed to
> put some higher priority on your claim.
>
> Hopefully it should all be resolved within a fortnight.
>
> Regards
>
> Kon Karanastasis
>
> Email : Kon_Karanastasis@tap.toshiba.com.au
>
> And then the email I was waiting for:
> Date: Thu, 21 May 98 10:46:44 +1000
> From: "KON KARANASTASIS"<kon_karanastasis@tap.toshiba.com.au>
> To: <geoffrey@netcraft.com.au>
> Subject: Refund Cheque
>
> Hi Geoffrey
>
> Your refund cheque has arrived in Adelaide.
>
> If you would like to return all documentation/software relating to MS
> Windows to
> Our office at 5 Hurtle Square you can pick up your cheque.
>
> Regards
>
> Kon Karanastasis
>
> I couldn't pick up the cheque immediately because I had just left for Linux
> Expo, but when I got back I wasn't in any particular hurry to get the
> cheque because it was the principle of the thing, not the money. After some
> hassling from a couple of LinuxSA members at the July meeting, I finally
> went to Toshiba on the 10th of August to pick up my cheque.
>
> Lo and behold, I now have a cheque for $110 from Toshiba in return for an
> unused license for Microsoft Windows!
>
> Many thanks to:
>
> Paul Ashton (of Samba fame). Paul was the one who told me in January that
> when I purchase a laptop I should read the Microsoft Licence Agreement, and
> take note of the bit about a refund.
> Kon Karanastasis at Toshiba for being patient with such a strange request.
> Nick Stock at Cybernet Systems for being an all-round good guy.
> No thanks to:
>
> Laurence White at Toshiba for three times denying my request for Toshiba to
> honour the license agreement they included with my computer.
> If there's anyone else wanting to do a similar thing, I think that the
> important things are:
>
> Check the license agreement. Look for something like ``If you do not agree
> to the terms of this EULA, PC Manufacturer and Microsoft are unwilling to
> license the SOFTWARE PRODUCT to you. In such event, you may not use or copy
> the SOFTWARE PRODUCT, and you should promptly contact PC Manufacturer for
> instructions on return of the unused products(s) for a refund.''
>
> As the first thing you do with the computer, boot from a floppy and delete
> the Windows partition immediately. If you boot Windows even once, you will
> probably be considered to have accepted the agreement.
>
> Contact your manufacturer immediately, and say that you do not agree to the
> terms of the EULA and would like instructions on return of the unused
> Microsoft Software for a refund.
>
>
> ----------------------------------------------------------------------------
> ----
> Last Change: Wednesday, 20-Jan-1999 01:45:49 CST
>
>
> Maintained by Geoffrey D. Bennett (geoffrey@netcraft.com.au)
>
>
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