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http://www.consumeraffairs.com/microsoft-newsMicrosoft Changes License Agreement to Bar Class ActionsMicrosoft's customers give up their right to sue and agree to binding arbitration in all disputesBy James R. Hood "Microsoft, never shy about trumpeting its latest innovations whether real or just vaporware, has quietly changed its U.S. end user license agreement to forbid its customers from suing or joining in class action suits against the company.
The 14th Amendment guarantees everyone the right of due process, but when it's consumers against mighty corporations, that doesn't mean very much.
In this and similar cases, companies have been modifying their end use license agreements -- commonly called the EULA -- to state that the consumer agrees to be bound by the conditions of the agreement. And -- voila! -- one of those conditions is now that the consumer will not exercise the right to sue.
In other words, you still have the right. You just can't use it. What could be fairer? After all, no one is holding a gun to your head and forcing you to use Microsoft Word, right?
Not much notice
The notice, such as it was, of the change was slipped into a Microsoft blog just before the Memorial Day weekend, a favorite time for issuing notices that one hopes won't be noticed.
In the blog posting, Tim Fielden, assistant general counsel at Microsoft, describes the changes, which mandate arbitration for all customer claims and forbid class-action lawsuits as a precondition to using Microsoft's products. The mandatory arbitration clause of the EULA is binding and is not an option.
"You understand and acknowledge that b4y agreeing to binding arbitration, you are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury," the EULA states in clause 18.1.4.
The denial of consumers' rights already applies to XBOX products and is being extended to other Microsoft products, presumably as quickly as Fielden & Co. can crank out the new boilerplate.
"We will implement similar changes in user agreements for other products and services in the coming months as we roll out major licensing, hardware or software releases and updates," Fielden wrote.
Microsoft, of course, is not alone and, as usual, is not even out in front. Companies have been falling over themselves to unilaterally rewrite their contracts even since an infamous 2011 U.S. Supreme Court ruling in the AT&T v. Concepcion case handed corporations the right to simply remove, demolish, diminish and destroy consumers' rights simply by inserting a few sentences in their contracts.
A contract is generally defined as an agreement between the two parties. But that cuts no ice in this case. The consumer simply has no input into the decision once deciding to buy the product or service -- commonly known as the "take it over leave it" option.
Not only is there no opportunity for negotiation or modification by the consumer, most EULAs are written to allow the corporation to unilaterally modify them, as Microsoft is doing, a rather unusual provision for what is supposedly an agreement between consenting parties."It is my layman's OPINION, that ....Doing this EULA change after the fact and counting our old "uninformed" and "non-consenting" pre-change EULA click as a contract on this class action issue thing doesn't fly at all. Many of us clicked long before this "after the fact" change was made. MS has been informed that users will be carrying forward with their class action suits with all previous MS EULA "protection" being considered null and void by MS's own "after the fact" illegal actions. Plus, attempting things like this after the fact and after the various issues have been raised acts to increase the severity of the language being used in the complaints, which now use terms like "misrepresented features that were available" "made fraudulent claims of performance that exceeded competitor products" "said the software was 85% feature complete and only required mild debugging which was simply false advertising". Makes their Micro bung holes all pucker up all tight-like, it does ..... and now you know why flippy hair talking head boy was put out of the country during this period of time, as he would have to be called to directly testify to tell the court who told him to say all that false stuff. And this is in the good ol' USA, mind you. What the EU Commissioners can and will do to MS is not limited or controlled by US law. And then you have those potential local actions by France and Germany and China, filed under their OWN laws to consider.
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