Dear sir/madam,

I am writing to make a complaint under section 10 of the Unfair
Terms in Consumer Contracts Regulations 1999 (the "Regulations")
against the following company:

Microsoft Limited
Microsoft Campus
Thames Valley Park
Reading
Berkshire
RG6 1WG
Company No. 01624297

My complaint concerns a clause of the Microsoft Software License Terms
for the OEM editions of the following computer software products (the
"Software Products"):

Microsoft Windows Vista Business
Microsoft Windows Vista Business Blade PC Edition
Microsoft Windows Vista Business N
Microsoft Windows Vista Home Basic
Microsoft Windows Vista Home Basic N
Microsoft Windows Vista Home Premium
Microsoft Windows Vista Ultimate

I am enclosing a full copy of the Microsoft Software License Terms
for each Software Product as Exhibits A-E.

It should be explained that OEM, in this context, refers to software
that is bundled with a computer upon purchase, and that the standard
practice is that the Microsoft Software License Terms are not presented
to a buyer at the point of sale, rather they are presented on the
screen of the computer after starting it up for the first time.
The user is then requested to accept the contract in order to use
the software.

The clause which is the subject of my complaint reads as follows:

"By using the software, you accept these terms. If you do not accept
them, do not use the software. Instead, contact the manufacturer or
installer to determine their return policy for a refund or credit."

I would argue that this clause is unfair by virtue of section 1(i)
of Schedule 2 to the Regulations, because it does not afford the
consumer a reasonable opportunity to inspect the return policy of the
manufacturer or installer before concluding the sale of the computer.
In order to further demonstrate that this clause should be considered
unfair, I will state that in my and many others' experience, even after
the conclusion of the sale, some manufacturers have either refused to
provide their return policy, effectively denying the consumer their
refund requiring them to resort to the small claims court, or have only
done so after a period of prolonged negotiation.  See Exhibits F-M
which consist of news articles, and weblog and Internet forum posts
regarding individuals who have or have attempted to obtain a refund.
From this I would argue that the current lack of clarity regarding
this issue has created an environment where many manufacturers are
reluctant to provide a return policy, whereas a clear right to inspect
the policy before a sale would promote competition and fairness.

Additionally, I would argue that this clause is unfair by virtue of
section 1(n) of the same Schedule, because the clause does not bar
the manufacturer or installer from imposing formalities in their
return policy that would fall within the scope of section 1(n),
or in general the clause should be deemed unfair because it does
not bar the manufacturer or installer's return policy from imposing
unfair terms within the meaning given by the Regulations.  In order
to further demonstrate that this clause should be considered unfair,
I am aware that some manufacturers require the consumer to ship the
computer back to them for inspection (see Exhibit M).  This condition
may fall under the scope of section 1(n) due to the risk of damage to
the computer, the time spent by the consumer preparing the computer to
be shipped, the lack of privacy as to the contents of the computer,
the inconvenience caused to the consumer by their not being able to
use the computer for a period of time dictated by the manufacturer,
or if shipping is at the consumer's expense.

Furthermore, I would argue that the clause is unfair by virtue of
section 1(k) of the same Schedule, as the manufacturer is not barred
from altering their return policy after a sale without a valid reason.

Finally, I would argue that the clause is unfair by virtue of section
1(p) of the same Schedule, as the right to a refund is transferred
to a number of different parties (the manufacturers and installers),
rather than Microsoft.  Given the differences in, and in some cases the
lack of, refund policies of the various manufacturers, as demonstrated
by Exhibits F-M, I would argue that, both in theory and in practice,
the guarantee of a refund to the consumer may be diminished depending
on the manufacturer he or she chooses.

Below I give a number of alternatives to the current wording of the
clause and discuss whether I feel they comply with the Regulations.
I would ask that the OFT takes these points into account when making
its decision.

1. The clause prompts the user to examine a return policy either
   provided at the time of sale or on the manufacturer's website.
   This would go some way towards compliance with section 1(i),
   however in my opinion such a clause would fail to comply with the
   remaining sections I have cited.

2. The clause specifies an exact, fair return policy that is to be
   followed by each manufacturer.  This would address many of the
   points I have raised, however I feel that it would not comply with
   section 1(p) because the right remains transferred to a number of
   parties each of whom may interpret the return policy differently.

3. The clause specifies an exact, fair return policy that is to be
   followed by Microsoft.  This, in my opinion, would be the best
   solution that would comply with all subparts of Schedule 2,
   section 1 of the Regulations.

Thank you for your consideration of this complaint.

Yours faithfully,