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Gateway Customer Sues to Get His PC Fixed
prostoalex writes "The Sacramento Bee tells the story of an El Dorado resident who had to go to small claims court to get his Gateway PC fixed: 'Right out of the box, he says, the computer displayed scattered graphics and wouldn't work properly. He says he called a Gateway salesman five times and sent him an e-mail to get an authorization number to send the computer back, but his phone calls and message were never returned. Then, over the course of months, Sheehan said he called Gateway technical support dozens of times.' Gateway insists that by clicking 'Accept' on a customer service EULA when the computer was first booted, Mr. Sheehan has waived his rights to sue the computer manufacturer in United States courts. The Gateway EULA states that conflicts must be resolved via private arbitrage. Sheehan, though, argues that he never saw the EULA, because of the broken graphics. As such, he's not held to that agreement." Some connections between this and a discussion about a Second Life case we had yesterday.
And even more connection to THIS ARTICLE from yesterday:
http://hardware.slashdot.org/article.pl?sid=07/06
Slashdot gets worse every day... Pipedot: News for nerds, without the corporate slant
The securities brokerage industry, stocks, bonds, etc.. has been doing this for decades. If you want a brokerage account, I don't care where, you have to agree to an industry arbitration. And some business magazine, I believe "Forbes", many years ago found that the arbitration panels are heavily loaded in the industries favor.
I have mixed feelings about it. On one hand it sounds like everything is weighted in favor of the company and against the consumer.
On the other hand, many times consumers cause themselves their own problems and refuse to take responsibility for them. Whether it be installing boards incorrectly themselves, or gambling on the derivatives market. I, for one, don't want to have to pay other's litigations, whether through increased product costs, or insurance costs.
As Gateway tells it in court filings, the company replaced Sheehan's computer a few months after he first complained, and he kept both machines.
Oh yeah, it sounds like, if Gateway is telling the truth, that this guy is trying to "game" the system and get a free computer.
I prefer Flambe as apposed flamebait.
I suspect it states that conflicts must be resolved by arbitration. "Arbitrage" is primarily an economics term; my dictionary defines it thus:
Both words do ultimately come from the same Latin root, though ('arbitrari', to render a judgment).From http://slashdot.org/faq/tags.shtml :
Not sure about the rest (like "haha" etc.), though.
butter the donkey
IANAL, but my general understanding of a 'covenant not to sue' is that a covenant not sue that has a 1:1 relationship is likely to stand up in court, as it is a release of liability, at least as to the items enumerated in the covenant (i.e., you agree not to sue someone for product liability, but then trip on their sidewalk, you can still sue them for the sidewalk). But a covenant not sue that has a 1:many relationship is not likely to stand up.
IOW, while someone agreeing to such a EULA may be limited in their ability to sue as an individual, it does not stop them from entering into a class action suit.
However, this clause in the EULA may not be a 'covenant not to sue' and may actually just be a clause to accept binding arbitration in lieu of sueing. Such clauses can be binding in the U.S., but I believe only to a certain point when it comes to product liability.
Furthermore, as the guy in the article didn't read the EULA, there is no 'meeting of the minds,' which is a requirement for any contract to be binding in the U.S. Even if he 'agreed' to it when he clicked 'I agree', since he couldn't read what he was agreeing to, the contract is null and void.
Finally, the imposition of any limitations of liability by EULA or warranty notice vary from state to state. Some states do not allow certain limitations of liability. So your rights in this regard vary depending on where you live.
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