(Belgian) Windows Refund @ Acer

This page is NOT updated anymore, please read the short version at: http://linux.vandeplas.com/acer/winrefund.htm
Thanks
Christophe Vandeplas

DISCLAIMER: This page contains ONLY FACTS, I am not trying to tell bad things about Acer Computers.
They make good and cheap
You will find all the mails and phone calls I made/wrote with my (short) comments.

ChangeLog

- 22 Apr 2005 : Complete rewrite of the page with latest info
- 13 Feb 2005: This page hasn't been updated yet due to negotiations with Acer
The current situation is that we are approaching an agreement about the refund procedure. Feel free to contact me if you have questions
- 30 Sep 2004: Test-Aankoop interesting answer
- 17 Sep 2004: send a letter to Acer (with signing at receipt)
- 10 Sep 2004: added the Acer answer + stuff about Test-Aankoop/Test-Achats
- 05 Sep 2004: wrote mail for Acer, not send yet
- 03 Sep 2004: started this story

Help Wanted

- Any legal advice is really welcome, please specify in what country it is applied
- People who also have an Acer computer and are trying to get a refund
- Press Contacts are also welcome. especially in Belgium These contacts will be used in case of failure and/or success

Reminder List

This will become a list of reminders to everyone that will ask a refund to his Manufacturer.

- at time of ordering ask if it is possible to have it without OS (even if you know it is not possible)
- take a GNU/Linux Install CD (or knoppix) to the computer store when going to get your computer
- print your Microsoft-Windows Removal Certificate (download see later)
- get your laptop and et the store sign/stamp the Certificate and delete all partitions of the disk in their presence
- go home and install your favorite OS/distro
- start contacting your Manfacturer for a refund. Please do NOT specify you are a Linux user
   this is not the priority. You just REJECT the EULA, that's all.

Microsoft-Windows Removal Certificate

You can find an empty version here : PDF & SXW

Actual Story

Before ordering my pc @ my computer store I asked if Acer sold PC's without OS. Of course I got the usual answer: NO
So I bought the computer, and refused the Windows EULA:
"By installing, copying, downloading, accessing or otherwise using the SOFTWARE, you agree to be bound by the terms of this 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"

The computer store signed my Certificate...

*** 31 Aug 2004 *** First Contact

I first called the Acer Helpdesk and explained my situation.

me: I bought an Acer laptop and I'm very pleased about it. But now I have a question.
    The first time I started my computer the preinstalled Microsoft Windows asks me to accept an EULA
    (End User Licence Agreement). I read that EULA very carefully and cannot accept it.
    The EULA contains this sentence:
       "By installing, copying, downloading, accessing or otherwise using the SOFTWARE, 
        you agree to be bound by the terms of this 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"
    I first removed the SOFTWARE from the computer as requested and am now contacting you for instructions
    on return of the SOFTWARE. Could you please tell me what I should do next?Tel 02/542.34.34
van maandag tot vrijdag
van 9u00 tot 12u30 en van 13 tot 17 uur

acer helpdesk: Never heard of that. We do not take software back
me: The EULA says I have to bring that software back because I do not agree with it.
acer helpdesk: please phone our main center (netherlands = international call)
me: Acer Helpdesk send me to you. + same explanation. 
acer nederland: one moment please.
// I hear I get tranferred to the helpdesk...
//acer helpdesk: offices closed...doh...

*** 1 Sep 2004 *** Got emailadress

I call the helpdesk again, explain the situation that happened the day before. The guy is very friendly and polite
He finally gives me an email adress of someone who should be able to help me more.

me: called yesterday + explain what happened + about EULA
acer helpdesk: refund not possible, you desided to choose a computer with Microsoft-Windows.
me: EULA says I should bring the software back, could you give me phone, fax, email?
acer helpdesk: contact csd_benelux@acer-euro.com he should reply in around max 1 day

That's what I immediately did ! I've send the following email:

Dear sir,

I just phoned Acer Helpdesk about a question I have, 
they said you should be able to help me further.

I recently bought the Acer Aspire 2012 WLMi.

At the first boot the computer normally asks to install Microsoft
Windows XP Home, and at the first screen it shows the EULA (End User
Licence Agreement). In the past I had to read this EULA many times for
other people, but now it is me who had to accept it.

And I do not accept it.

Let me quote a small part of the agreement:
        "By installing, copying, downloading, accessing or otherwise
        using the SOFTWARE, you agree to be bound by the terms of this
        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"

To confirm the first part, I removed the SOFTWARE immediately at the
computer store. They signed me a certificate to prove it.

I am now sending you this email to ask you "for instructions on return
of the unused product(s)". 


Sincerely Yours


Christophe Vandeplas

*** 03 Sep 2004 *** Email from Acer

I got an answer, 2 days later (acceptable duration)
This is what he replied

Dear Mister Vandeplas, 

If you do not accept the EULA, then XP does not install. But since you bought this notebook, 
you agreed to the terms of this product. You bought it, so you agreed with those terms. 
One of those terms is that your notebook is being sold with Windows O.S. If you want to 
install other O.S., that is your choise, but we do not give support on other O.S. then those 
delivered with the notebook. Futher, if you call us in the future, with problems regarding 
hard or software, most of the times me and my collegue's will ask you to preform a recovery 
of your system to check if this is a hard or software problem. If you do not recover the system,
then there are 2 options: 

Or you do not get support by us, 
Or the system is being recovered in one of our repair centers. If the problem then is solved, 
this is a problem with has been cause by the O.S. you use, and therefore no support. 

What you can do, is bring back the notebook back to the reseller,  and ask your money back, 
or accept the fact that you can install other O.S. but do not get support for that. 

The software cannot be returned to us, because it is a part of the product that you bought.  

With kind regards, 

Jan Douwe Merkus 
Acer Helpdesk

This is the answer I expected. I read many stories of people who also asked for refunds, and some of them had the same answer. The thing is that I have an advantage: they are willing to refund me for the whole laptop. I do not want that, but I can use this to go further.

*** 06 Sep 2004 *** Email reply to Acer

I first wrote my answer, asked to my sister and Brenno De Winter to give comments.
Monday the 6th I went to a free attorney to get some legal advice. Here's my reply to Acer

Dear Sir,

Thank you for your reply to my message regarding the return of unused Microsoft software.

I was very surprised by the following quote: " since you bought this notebook, 
you agreed to the terms of this product." I could find nowhere in the included documents, 
any agreement on the automatical acceptance of Microsoft Windows. If there should have 
been one in the box that was accidentally not included, please send me a copy of this 
agreement by post (see address below).
  
The only EULA included, was for Microsoft Windows XP Home. I have fully read and refused 
this EULA, which only covers the SOFTWARE. As I mentioned in the previous email, 
it even mentions the possibility to refuse and return the unused software. 
  
       "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" 
       (quoted from the EULA) 

I am suprised to read in your email that the Operating System cannot be separated from the computer. 
Such compulsory conditional sales are an infringement of both the Belgian and European law.

I am therefore asking you to send me instructions on the procedure for return of the unused sotware 
or to provide me the contact information of the person in charge. 

I thank you for your collaboration and hope we'll find a solution soon, 

Sincerely yours

Christophe Vandeplas

My address: 
xxxxxxxxxxxxxxxxxxx

*** 07 Sep 2004 *** Email from Acer

What I feel in this mail is that the person do not directly want to speak about the EULA
This is what he replied

Dear mister Vandeplas, 

So this means that you have bought the notebook, but did not know that it was been shipped with Windows XP? 
You had no information about our notebooks being preinstalled with  Windows XP. You did not read any of the specs? 
In that case I can understand that you want your money back. But if you bought the notebook, with XP as a 
specifiaction (like Wlan, or Bluetooth, Widescreen etc) this means you bought it, and agreed that XP was also 
delivered with your notebook. If you do not want to make use of XP, then the only sollution is to bring back the 
notebook and ask your money back, because we do not refund XP licences. 

With kind regards, 

Jan Douwe Merkus

*** 10 Sep 2004 *** Test-Aankoop opens a File

2 days ago I contacted Test-Aankoop to ask for some help. They gave me the advice to make me member so I could have free advice, and they whould open a 'File' (dutch:dossier).
Today I called again to ask if they got my mail, the guy told me they started a File (number 333846)
I've sent the mail I got the 7th from Acer (see above).
Now I have to be patient...

*** 17 Sep 2004 *** Letter sent to Acer BeNeLux

Test-Aankoop told me I should send a letter to Acer (with signing at receipt of the letter)
That's what I did. you can find my (dutch) letter here: Acer.aangetekende.brief.pdf

*** 30 Sep 2004 *** Test-Aankoop interesting answer

Test-Aankoop answers to my request for help. They say it is indeed a conditional sale, that is an infrightenment to the law.
Acer should even give the possibility to the customer to choose between different Operating Systems.
There isn't yet a specific law about that.
They offer to make a complaint to the right instance (sorry, but I can't translate the name)
That instance will analyse the situation and give their viewpoint about the case.

As consumer Organisation, Test-Aankoop is willing to handle the case for me. They also say that they cannot guarantee any success of the affair.

Geacht lid,

Wij mochten uw mail dd. 07.09.04 goed ontvangen.

Wie een nieuwe computer koopt, krijgt er dikwijls vooraf geïnstalleerde software bij. 
Deze is natuurlijk in het prijskaartje begrepen. Bijna altijd is dit Windows van Microsoft.

Indien de verkoper weigert een PC te verkopen zonder geïnstalleerde Windows, is hij eigenlijk strafbaar. 
Hij doet dan aan koppelverkoop en dit is verboden bij wet. De verbruiker zou zelf moeten kunnen kiezen 
tussen Windows en een ander systeem (bv Linux), of de terugbetaling van de software kunnen eisen. 
Er bestaat hieromtrent nog geen specifieke wet.

Indien de koper niet verplicht is de software te draaien maar de keuze heeft, zoals in uw geval, 
is het antwoord niet zo duidelijk. U hoeft namelijk de software niet te draaien, u kiest ervoor.

Wij stellen voor een klacht neer te leggen bij de Algemene Directie "Controle en Bemiddeling", 
van de Federale Overheidsdienst Economie, KMO's, Middenstand en Energie, WTC III, Simon Bolivarlaan 
30 in 1000 Brussel  (02 /208 36 11). Deze zal dan een onderzoek gelasten en haar standpunt hieromtrent meedelen.

Als consumentenorganisatie zijn wij bereid om tussen te komen, wij zullen dan met uw goedkeuring een klacht neerleggen. 
U zal ons dan uw uitdrukkelijke toelating willen verlenen. 

Het spreekt voor zich dat wij geen positief resultaat kunnen garanderen daar wij ook afhankelijk zijn van de 
good will van de andere partij. 

Van zodra wij enig bericht ontvangen, zullen wij u berichten. 

Hopende u hiermee van dienst te zijn geweest en steeds bereid tot verdere inlichtingen, verblijven wij,


Met de meeste hoogachting,

Dienst Individuele Hulpverlening

Thanks

- Test-Aankoop / Test-Achats, a consumer organisation, who will help me handle this case
- Allwebsales computers who signed me my "Windows Removal Certificate"
- IDJ.be Information et documentation des jeunes et du grand public ! for their free legal advice
- Werner Heuser @ tuxmobil.org for adding a link to this page on the website
- Brenno J.S.A.A.F. de Winter from www.dewinter.com for his support
- YOU for reading this page
- YOU for giving me tips and work TOGETHER to get a refund