Consumer Law, Warranties unable to get refund for flawed software?

[lrs22]

Folks,

I could use a bit of advice. The situation is
as follows. I purchased a software package.
This software never worked. I communicated
multiple times with this vendor's customer
support staff, starting during the warranty
period. The customer support staff was unable
to help. They actually recommended wiping the
disk drive and starting all over (very bad).
I continued to work with them, in the hope that
one of their engineers would fix the problem.

Six months went by, and this company released
the next version of this package. I again
contacted customer support to see if they yet
had a patch for the problem I reported. They
said the latest version of their software should
have the fix, and that I would be able to
PURCHASE this fix from their web site. No
patch would be made available for my version
of their software. By this time, the warranty
on my version had long expired.

So far, I was not impressed. Another six months
elapsed, and I decided to contact the Better
Business Bureau. The software company initially
made some inaccurate statements, such as I never
contacted their support line, and they would
never recommend wiping a disk drive. I presented
a copy of all the e-mail, and they changed their
story. They now say, however, that due to the
amount of time which had elapsed, refunding my
purchase would be unreasonable.

I waited six months to contact the BBB after
giving up on this company. There is no dispute
that this company's product is flawed. The BBB
is willing to take this into arbitration, which
could cost another $100. The question I have
before I take this step is whether I lost my
claim for a refund by waiting six months to
contact the BBB. Any advice?

Thank you.

lrs

 

[Michael Wechsler]

Most importantly -- do you have a copy of the shrink wrap license that you should have been supplied with and that should have come with the software? That will likely contain the remedies and might say something along the lines of you having 30 days to decide what to do, keep the software or return it for a refund.

It doesn't make sense that you should keep the software indefinitely and then decide when to return it. If it doesn't work and you were given a reasonable time to return it, then you don't practically have a claim -- at least I don't think so. Does that make sense?

But before we talk about what makes sense... let's take a look at the law and what is contained within the shrink wrap license.

 

[lrs22]

Thank you for your prompt response. The license agreement provided a 90 day warranty
period in which the software would perform substantially in accordance with the supplied
documentation. The vendor shall be liable for repair or replacement of any software which
fails to conform, or at the vendor's option, shall return the price paid for the software.

Prior to the expiration of the warranty period, I registered a complaint with the vendor that
their software failed to operate. I attempted to work with the vendor's support staff, but
they were unable to fix this problem. While working with these folks, the 90 day period
expired. Did I forfeit any right to a refund by waiting too long for the vendor to fix this
problem?

Thank you.

lrs

 

[Michael Wechsler]

It's hard to say whether the period expired and the answer here may be technical. What was the problem with the software? Was it a reproduceable bug?

You did lodge a proper complaint. They did tell you what to do in order to get it to work. You didn't follow up with them to tell them whether their suggestion worked. You kept the software for a significant additional period and that could be seen as your assent that the recommendation was satisfactory. What you could and should have done was ask them for repair of the software, replacement, or ask for your money back. You did neither.

Another aspect of your story that troubles me -- if their software seems to work for most other people, it's difficult to make the assertion that the software needed warranty repair. If this is commercial software that isn't working on your PC, e.g. Microsoft Word, you'd be very hard pressed to say that it isn't your hardware that is the problem.

You should probably work out something with the company. If the new upgrade was a FIX for your problem, you might have a point. However, if the "fix" isn't really that, then you might want to think about whether you should purchase the upgrade, especially if the amount is relatively nominal.

 

[lrs22]

The purpose of the software was to partition a hard disk. This product generated an
illegal configuration by placing the new partition on a bad boundary. It then failed to
allow for adjusting any of the partitions. This failure was reproduceable. The error
code indicated this was a software bug, not a hardware problem.

I provided debugging data to this vendor's customer support staff. I followed all
suggestions from the support staff, with the exception of wiping my disk clean (they
later recanted and said they would never suggest such an operation). I
communicated multiple times with the support staff indicating my desire for a fix to
this problem.

After their next release appeared, six months later, I again contacted their support
staff. They told me that this version fixed the problem I had reported. I could get the
fix only by purchasing another copy of their product (not an upgrade). At this point
I waited another six months before contacting the Better Business Bureau. (Looking
back now, I realize I should have contacted the BBB immediately.)

Thank you.

 

[Michael Wechsler]

A couple of things -- the errors given (which aren't listed) may not necessarily equate to only being a software error, but that's another matter (and I'm assuming it is reproduceable on other equipment). Optimally, you should have followed up instead of waiting.

Let us assume that it is the software company's error -- if you have a record of the bug, you should demand a free upgrade or full refund since they didn't fix the bug nor offer you the refund. You had contacted them within the amount of time (perhaps it says 30 days) to report the error but the company has not fulfilled its end of the warranty, which is fix, replace, or money back. Replacement here is only feasible with a version that works, which is the current version. If they refuse, then they must provide you with a reason why.

That said, it would be strange if you were the only one with the problem and then the software company's position would be understandable.

Unfortunately, the BBB is not an entity that is in enforcement although they are a good source and a repository for complaints.