DAVID B. McMAHON ATTORNEY AT LAW Personal Example During the summer of 2000 my home computer printer broke. I purchase my home printers with my own money, but use them about equally for my personal and my employer's use. I like to have my laptop computer and a printer with me on the road, so I like to have a "laptop" personal printer. When my old one broke, I discovered it cost more to fix it than to buy a new one. So I went searching for a new one. 1 I looked on the web sites of some on-line retailers. I looked at a print catalogue, and called and talked to them. I shopped in Circuit City and at Staples. No one had just what I wanted. So I looked at all the things I could find out about purchasing the various printers that were available. I compared their price, printing quality, printing speed, and the other factors listed on the web sites, in the catalogues and, in the brick and mortar stores, on the boxes. Staples had a Canon BJC 80, a name brand model which had features that, balanced with the discount price, made it the one that I decided would be the best deal for me. Staples had just one left. Nowhere in all of my searching did I ever see a disclosure, display or advertisement on or for any printer I looked at which told me what the warranty would be for the printers, or their software. (Depending on the media in which you are seeing this example, a copy of the displays on all sides of the box may be attached or appended.) 2 I drove specially back to Staples, paid for it, put it in my car and drove home. 3 By the time I had it home, and by the time I found time to go though unpacking and setting it up, I was in a hurry to get it working because I was behind and had things that I needed to get printed. 4 The box was taped shut. I broke the tape and opened it. 5 Just inside the box was a document called the "Quick Start Guide." It told me what I had to do to get the printer going. I followed its steps. (Depending on the media in which you are seeing this example, a copy may be attached or appended.) 6 As instructed in the Quick Start Guide: 7
At this point I was finally shown a window named "Software License Agreement." It said, "Please read the following license agreement. Use the scroll bar to view all of the agreement." At the bottom of the window it has a "yes" and "no" button and said, "Do you accept all the terms of the preceding License Agreement? If you choose No, Setup will close. To install Canon software, you must accept this agreement." 8 If I scrolled about half way down the inner window, one of the "terms and conditions" of the agreement that I had to agree to if I wanted to load the software told me that I was paying for the software "AS IS". "THE SOFTWARE PROGRAMS ARE LICENSED ON AN "AS IS" BASIS AND WITHOUT WARRANTY OF ANY KIND. [Emphasis supplied in the original]" (A copy of the entire disclaimer including the disclaimer of consequential damages is attached to the bottom of this document.) (Depending on the media in which you are seeing this example, a copy of the displayed window may be attached or appended.) 9 If I had scrolled to the bottom of the agreement it said [Emphasis supplied in original]: 10 7. Acknowledgment: BY CLICKING ON THE "ACCEPT" BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU ALSO AGREE THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, VERBAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. Note that under UCITA (if it was in effect for the transaction) I could return the item at this point. However if I did not return everything right then, once I clicked "accept", I would be stuck. If the software/printer never worked right, if it never worked at all, or if it loaded a virus onto my computer that crashed my hard drive, I would have no right to return the item. I would have no right to get my money back. I would have no right to any damages. Also note that under the terms of Canon's "agreement" (if it would stand up in court) the same thing would be true. 11 At this point, if I decided that I wanted a printer that had a better warranty than -- well if I decided that I wanted a printer that had any warranty at all -- what would I have to do? I would have to delay what I wanted to print, try to get everything back in the box, find time to make another special trip back to the store, wait in the return line, get my money back, pick a different printer that had a warranty on its software (assuming I could find that out), pay for it, and bring it home. 12 Since I was already behind on the printing I wanted to get done, did I at all want to suffer the delay necessary to do all that? 13 Could I get the printer and all of its parts back in the box? Certainly things like the sealed printer cartridges etc. would not reseal. If I dug all of the tape and the "protective plastic sheet" back out of the trash would it still all work? Could I remember how it all went? Would the store believe me that all the parts were back? Did I really want to face the suffering soul (or processional hard nose) in the return line and say "Uhhhh, I didn't like the warranty"? 14 The last question is biggest. Would I be able to find out whether any of the other printers on the shelves or anywhere else had any warranty -- that is, would I be able to find that out without taking them home and going through it all again -- and again? The answer to this last question is "No". The answer to all the other questions is "No." Canon knew that. 15 I clicked "accept". The printer software has two bugs. They require me to click to close two windows every time I tell the printer to print -- every time. After much time spent on the phone, I was told by Canon that these problems are the fault of the software for another printer I once used, whose software I removed, two years ago. Canon said I should call Lexmark. I have not called Lexmark. I just wait for the two windows and click on them every time I print -- every time. I consider myself lucky it works as well as it does, since I cannot get my money back. 16 CANON SOFTWARE This software package contains Canon software programs, Canon driver software programs and an electronic user's manual collectively (the "Software Programs") on CD-ROM media (the "Media"). Certain of the Software Programs were developed and are owned and distributed by third parties (the "Software Publishers"). Your license, as set forth below, to use the Software Programs is granted by Canon Computer Systems, Inc. ("CCSI") (unless this software package is installed and used by you in Canada, in which case this license is granted by Canon Canada, Inc. ("Canon Canada")). 17 1. License: . . . 18 5. Limited Warranty and Limitation of Liability: It is your responsibility to choose, maintain and match the hardware and software components of your computer system. Thus, neither CCSI nor Canon Canada guarantees uninterrupted service or correction of errors or that the functions or performance of the Software Programs will meet your requirements. THE SOFTWARE PROGRAMS ARE LICENSED ON AN "AS IS" BASIS AND WITHOUT WARRANTY OF ANY KIND. The Media are warranted against defective material or workmanship under normal use for a period of thirty (30) days after purchase from an authorized Canon dealer. Defective Media returned to CCSI or Canon Canada with proof of receipt, and proven to be defective upon inspection, shall be replaced without charge with media containing the software programs or the then current version of the software programs, at CCSI's or Canon Canada's discretion. Replacement Media will be warranted for the remainder of the original thirty (30) day warranty period of the defective Media. The limited warranty does not apply if the failure of the Media resulted from accident, abuse or misapplication of the Software. EXCEPT AS SPECIFICALLY PROVIDED ABOVE WITH RESPECT TO THE MEDIA, NO EXPRESS OR IMPLIED WARRANTY (OR CONDITION)* AS TO THE QUALITY OR PERFORMANCE OF THE SOFTWARE PROGRAMS, INCLUDING ANY WARRANTY (OR CONDITION)* OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS GIVEN FOR THE SOFTWARE PROGRAMS OR THE MEDIA, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED (EXCEPT FOR IMPLIED WARRANTIES ON THE MEDIA WHICH ARE LIMITED IN DURATION TO THE THIRTY (30) DAY PERIOD DESCRIBED ABOVE). No other warranty or guaranty given by any person, firm or corporation with respect to the Software Programs shall bind CCSI, Canon Canada, the Software Publishers or anyone else who has been involved in the creation, production or distribution of the Software Programs. IN NO EVENT SHALL CCSI, CANON CANADA, THE SOFTWARE PUBLISHERS OR ANY OTHER PERSON, FIRM OR CORPORATION BE RESPONSIBLE FOR ANY EXPENSE OR INCONVENIENCE INCURRED, ANY REVENUE OR PROFITS LOST, OR ANY OTHER DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF THE USE OR MISUSE OF, INABILITY TO USE, OR NONPERFORMANCE OF, THE SOFTWARE PROGRAMS. Some states or provinces do not allow limitation of how long implied warranties last, and do not allow the exclusion or limitation of damages, so the above limitations may not apply to you. The limited warranty granted herein shall not extend to anyone other than the original user of the Software Programs. This limited warranty gives you specific legal rights, and you may also have other rights which may vary from country to country. . . . 19 7. Acknowledgment: BY CLICKING ON THE "ACCEPT" BUTTON BELOW , YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU ALSO AGREE THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, VERBAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. 20 * Applies to Software used in Canada Attachments: |
