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The biggest TOS offenders (part 2)

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4.     Limited guarantee/

 Apple, 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.

Description: 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."

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/

 eBay, 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.

Description: eBay-Shops - "Delivery dates are always without obligation and deliveries only on advance payment"

eBay-Shops - "Delivery dates are always without obligation and deliveries only on advance payment"

6.     Limited use of purchased content/

Windows, 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.

Description: Photoshop - "When you have a dual boot computer, [...] you must purchase a separate license for every installation’.”

Photoshop - "When you have a dual boot computer, [...] you must purchase a separate license for every installation’.”

7.     Misleading claims of services/

Symantec, 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.

Description: Symantec - "During the installation process it can appear that the software uninstalls or deactivates other security products..."

Symantec - "During the installation process it can appear that the software uninstalls or deactivates other security products..."

8.     Non-transparency rule violation/

Facebook, Vodafone

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.

Description: Vodafone - "Vodafone can adapt to the [...] usage payments, without which a right to give notice to the customers arises."

Vodafone - "Vodafone can adapt to the [...] usage payments, without which a right to give notice to the customers arises."

9.     Claiming for damages/

1&1, eBay

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 the ToS.

Description: 9/1&1 - "For every case of culpable violence [...] 1&1 promises the customer a penalty in the range of 2,500 euros."(RM10,200)

9/1&1 - "For every case of culpable violence [...] 1&1 promises the customer a penalty in the range of 2,500 euros."

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