Software EULAs

Are they worth the paper they're not printed on?

Your rights as a consumer are fairly varied, but in most cases, if you're not satisfied with a product, you're usually entitled to a refund or some form of remuneration.

Buy a shirt, take it home, try it on and Ow! That tag scratches! So you take it back and get a refund.

Buy a pair of jeans. Take them home and...woah! My butt looks huge in these! (Yes, yes, it's the jeans. Of course it is :P) So take them back.

You order a Medium Rare steak at a restaurant and they bring one out that's Medium Well, so you send it back. They bring you another, this one Medium. You send it back. Now you've pissed off the Chef so this time you get a steak that's seared on the outside but not even cooked in the middle. You call the Manager over, the Chef gets chewed out, and you get your meal for free.

You buy a PC Game. Take it home, start to Install it and the EULA pops up. So you sit there and read it.
You read the EULA??? Sure you do.
No really, you do. You read the EULA and you decide that you cannot in good faith Agree to it. So you click Cancel, or Disagree, and the EULA window closes along with the Installation program. Unless you Agree to the EULA you cannot Install the game, so you package it up and return it to the Store and get your money back.
HA!!! That's almost as good as the one about you reading the EULA!!! Get your money back for opened software? Yeah, right!

Why can't you get your money back?

The software contains a EULA to which you were not privy at the time of purchase. At least not unless you went online prior to purchase and checked it out, but, is that a reasonable expectation? I doubt the Courts would think so. The Courts usually like all terms and conditions of a contract to be made available at the time into which said contract is entered.

If I read the terms of the contract, decide I don't like one part and change it, we now have a new contract. If you'd already signed it, I cannot make the change then sign it and insist we have a binding contract. We'd both have to initial & date the change to show we both agree to it, and if we do so, then we'd have a binding contract.

Likewise changing the terms of the contract after the contract has already been established requires both parties to agree to it. This is what makes a EULA enforceable: you agreeing to it, ipso facto. You've already purchased the software. You take it home, start to Install it and the EULA pops up. You scroll down and click Accept and away you go. You accepted the terms of the EULA, so you now have an established contract between you and ACME Software Company for Game®. The only thing that makes the EULA unenforceable is if it places unrealistic demands or expectations upon you, the consumer.

EULA
1. You, the User, agree to become a walking billboard and will allow us to tattoo ACME Software Company on your forehead.

That's not going to be enforceable.

1. You, the User, agree that ACME Software Company retains the sole, property rights to all virtual objects created or acquired through the use of Game®.

That's more likely to be enforceable.

So you read that first line in the EULA and say to yourself, "Hell NO! I'm going to eBay everything I make/find in Game®."

If you click Agree to the EULA, later you'll be in violation of it when you do try to eBay your virtual goodies.

But if you don't agree to it and you click Disagree, as stated earlier the EULA window closes, as does the Installation program.

Now you've got an item you purchased that comes with a EULA with which you disagree, so you cannot in good faith install and run said program.

With that said, why are you unable to return Game® to the store for a full and total refund?

Technically, you'd be well within your right to do so. The Store may have an internal policy that opened Software can only be exchanged for the same title, but in your case that creates a problem. You don't want another copy of Game®, you want your money back. At the very least the store should offer you Store Credit, but realistically they should offer you the Refund you're demanding. If they don't, you could file a case with the Small Claims Court. You're entitled to a Refund because the product you purchased came with an additional Terms Of Use to which you weren't privy at the time of purchase, you'd probably win your case, too. Unfortunately in California, filing with the Small Claims Court costs you $30 (at this point in time), so you pay $30, win your case and get your $40/$50 back. You win! Or do you?

On the plus side, most establishments hate drama as much as Average Joe hates causing it, so if you're willing to stand up, be a loud mouth, and insist on a refund or you're going to file with the Small Claims Court, you're probably going to get what you want. But don't expect to shop at that store much in the future, because they're well within their right to refuse you service from that point forward.

Everyone has rights. Know yours.