Return to Bad Software: What To Do When Software Fails.



CHAPTER 1
READ THIS FIRST

An excerpt from Bad Software. Copyright (c) 1997, Cem Kaner & David Pels. All rights reserved.


If you just bought the program and it doesn’t work, your wisest choice might be to get a refund. The sooner you ask for a refund after buying the product, the easier it will be to get it. Think about this now.

We put this chapter first, even before the Introduction, so that you won’t delay getting your refund by spending unnecessary time reading.

So hurry up and ask for that refund.

We’ll see you in Chapter 2 if you have a problem.

Should You Ask for a Refund?

If you just bought the program and it’s obviously full of bugs (defects), stop using it and ask for a refund. Get it off your computer before it does something bad. Maybe it won’t, but why take the risk?

If the program has already cost you a lot more than the price you paid for it (for example, if it erased your hard disk), then you want more than a refund. The rest of this book can help you demand fair compensation. But if the program hasn’t yet hurt you, damaged your files, lost your work, cost you your job, ruined your reputation, or made you screaming mad, then a refund is probably your best course.

Do You Have a Right to a Refund?

Maybe.

If you were misled and neither the publisher nor the store or mail order company that sold you the program will give you your money back, read Chapter 4 (to help you decide how much additional money to ask for), Chapter 7 (to help you decide which government agencies to report these people to), Chapter 8 (for a summary of your legal rights), and Chapter 10 (how to hire a lawyer).

Some companies try to tell their customers that software has no warranties, that software is like those unsavory-looking used cars with the big sign that says "AS IS -- THIS VEHICLE IS SOLD WITH NO WARRANTY OF ANY KIND." If you found one of these notices inside the box after you bought the program, ignore it. It has no legal force. It just keeps the suckers who don’t know any better from calling. (See Chapter 8, in the section, Warranty Disclaimers in Software Packages.)

Furthermore, even if you aren’t entitled to a refund, if you haven’t had the product for very long and you already hate it, you have every reason to ask for a refund. Many publishers, stores, and mail order houses will give you a refund whether their published policies promise one or not. It doesn’t hurt to ask. And the sooner you ask after you get the program, the more likely they are to agree.

How to Get a Refund

You can get refunds from several places. You might get a refund from the store or mail order business that sold you the software. You might get it from the publisher. If you get a runaround from them, you might get a refund from your credit card company. Your approach differs slightly in each case, so we consider each one it turn. The sections are often similar. We suggest that you read the sections that apply to your situation, and skip the others.

Asking the Store for a Refund

If you bought the program at a store, go back there and ask for a refund. If the salesperson refuses, ask to speak to the store manager. If the manager is unavailable, ask to speak to the store’s assistant manager (and if necessary, ask her to let you speak to the store’s manager).

If the manager won’t authorize the refund, quote the Uniform Commercial Code rules on acceptance and rejection. Few retailers are aware of these rules, so it will help you to have them handy. We quote and discuss them at the end of this Chapter.

If the store’s manager won’t give you a refund, or if you can’t get to the manager, ask for the address of the store’s Head Office, the name of the president of the company, and the name and phone number of the person at Head Office who is in charge of handling customer complaints. Write this down. As you’re writing it down, look the assistant manager or the manager in the eye and ask, "Are you sure that you don’t just want to take care of this now? Why not just give me a refund and we can both be finished with it?"

Asking the Mail Order Company for a Refund

Call the company. Have the program and your receipt handy, so that you can answer a few quick questions. Explain that you don’t like the program and that you don’t want to keep it. Ask for the full name of the person you’re taking to. If this person won’t authorize a refund, ask for the manager, and then the manager’s manager. Don’t take "No" for the answer until you run out of people to talk to. Ask for each one’s name and title. Write each one down.

If the person that you’re talking to won’t authorize the refund, quote the Uniform Commercial Code rules on acceptance and rejection. Few salespeople are aware of these rules, but they apply directly to mail order. It will be useful to have them handy. We discuss them at the end of this chapter.

Asking the Publisher for a Refund

If you’re unhappy with the program because it crashes or because it doesn’t deliver all the benefits promised in the publisher’s advertisements, in the manual, or on the box, then you’ve got every reason to expect the publisher to stand behind the program. Call it.

Have your receipt handy, and the program with its packaging (to help you answer questions about exactly what you bought.) If you just want a refund, you don’t have to call from beside your computer. (If you want help with the program, it pays to have your computer running and ready to use when you call.)

The publisher’s staff might want you to give details about your computer and all of its components. If you know them, give them. But don’t let the staff talk you into spending time investigating your equipment. This is part of their effort to help you (or intimidate you) to keep the program. You don’t want to keep the program, you just want a refund. Say so. Say it in a friendly tone of voice, but be direct and be firm. Ask what the quickest way is to get the refund.

If the person that you’re talking to won’t authorize the refund, quote the Uniform Commercial Code rules on acceptance and rejection. Few technicians are aware of these rules, so it will pay to have them handy. We discuss them at the end of this Chapter.

If the person that you’re talking to still won’t authorize the refund, ask for his full name and ask to speak to his manager. Keep taking names and titles and speaking to higher-ups until you get someone who says, "OK, OK we’ll give you the refund," or until you run out of people.

Getting Help from Your Credit Card Company

If you used your credit card to buy the program by mail, you can send the program back to the seller (the company that sold the program to you) and dispute your credit card bill.

The rules for disputing your bill are usually printed on the back of your monthly credit card statement. If you’re not sure of them, call your credit card’s customer service number and ask them to explain the rules and to send you a printed explanation of the rules. Here is a summary of the typical rules:

Include a note that explains why you sent back the program. Keep it short. For example, you’ve done enough explaining if you say "I am returning this program because it didn’t work. It kept crashing on my computer." Keep it polite and calm. Remember, it’s not your credit card company’s fault that the program doesn’t work. They’re helping you to get out of a jam that you got yourself into. The credit card company might also want to see a copy of your complaint letter to the store or publisher. If you sent such a letter, include it.

It’s wise to also send your letter to the credit card company by Certified Mail, Return Receipt Requested. That way, the company can’t say that they didn’t get it.

Uniform Commercial Code Rejection Rules

The Uniform Commercial Code (UCC) is the law in every State (Louisiana has not adopted all sections of the Code but their laws for sales are similar in their effects.) The rules for acceptance and rejection of merchandise are less widely known than they should be, so we will quote and explain them here.

The first rule, called the "perfect tender rule," says that you are entitled to reject a product for any defect. Here it is (we’ve highlighted the most important part):

Section 2-601. Buyer’s Rights on Improper Delivery

Subject to the provisions of this Article on breach in installment contracts (Section 2-612) and unless otherwise agreed under the section on contractual limitations of remedy (Sections 2-718 and 2-719), if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may

  1. reject the whole, or
  2. accept the whole, or
  3. accept any commercial unit or units and reject the rest.

In the typical retail sale, you have the opportunity to inspect the merchandise before you buy it. For example, when you buy a leather jacket, you can try it on, check the seams, and generally look it over before you take it to the cash register. If you see a flaw, even if it’s just a little scratch in the leather, you don’t have to buy it.

Sometimes you pay for the merchandise first, but inspect it later. For example, when you special-order a leather jacket, you pay first and the jacket is delivered to the store. When you come to the store to look at the jacket, you can look it over. If the jacket is ripped, you don’t have to accept it. Even if the leather has a slight stain or scratch, you don’t have to accept the jacket. If you choose not to inspect the jacket, and you discover the flaw much later, you are stuck with it.

Section 2-606. What Constitutes Acceptance of Goods.

Acceptance of goods occurs when the buyer

  1. after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their non-conformity; or
  2. fails to make an effective rejection (subsection (1) of Section 2-602, but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or
  3. does any act inconsistent with the seller’s ownership; [rest of section omitted].

Suppose the jacket is delivered to your home. You sign for the delivery, then open the package and look at the jacket for the first time. You see a rip. Did you accept the jacket when you signed that you had received it? No. You haven’t accepted it, under the law, until you’ve had a chance to inspect it and then kept it, or until you have said that you accept it. If you find a problem during your inspection of the jacket, you can still reject it. "Reject it" means that you can take it back, or send it back, to whoever sold it to you, and the seller must give you a refund.

Section 2-602. Manner and Effect of Rightful Rejection

Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller. [rest of section omitted]

How long do you have in order to inspect a product and reject it if it is defective? It depends on the circumstances. The more complex the product, and the harder the defect is to discover, the more time you probably have. White & Summers (1995, Volume 1, Section 8-3), the leading treatise on the UCC, cites several cases on this. For example, a court refused to allow a rejection just 24 hours after delivery of a horse because its injury would normally have been discovered by an inspection at the time of sale (Miron v. Yonkers Raceway, Inc., 1968). In contrast, another court allowed rejection several months after a customer purchased dump truck underbodies because it was impossible under the circumstances to finish a proper inspection earlier than this (Sherkate Sahami Khass Rapol v. Henry R. Jahn & Son, Inc., 1983).

We haven’t seen any court cases that have decided how long you have to inspect pre-packaged, non-customized computer software, but the legal principles are clear:

  1. You have the right to inspect the product before you accept it.This is UCC Section 2-606(1)(a).
  2. To inspect a program, you have to be able to put it on a computer and run it. You need enough inspection time to can see how the program works, and to have a reasonable opportunity to notice obvious bugs.
  3. If it is impractical for you to inspect a product before you take it home or to the office, then you have the right to inspect the product there. This is UCC Section 2-606(1)(b).
  4. You have the right to a product that works the way that the seller (publisher or retailer) said that it would. The publisher’s and seller’s statements are found in advertisements, on the box, in the user manual and on-line help, on the publisher’s web site, and in your oral discussion with the publisher’s or store’s staff. (We talk about this further in Chapter 3, in the section "Background for Negotiating: Is the Product at Fault or Do You Just Not Like It?", and again in Chapter 8, in the section "Warranties".)
  5. If the product doesn’t conform to the contract, you can refuse to accept it (your refusal is a rejection). This is UCC section 2-601. The product fails to conform to the contract if it doesn’t meet the publisher's and seller’s promises, or if it has other defects. Any defect, no matter how minor, is good reason for you to reject the product.
  6. You don’t have much time to inspect the product. If you haven’t rejected the product within a reasonable time after taking it home, the law says that you’ve accepted it. This is in 2-606(1)(b) and 2-602(1). We think that you probably have a few days and you might be able to justify needing a few weeks or, for a very complex program, a few months.

If you do return a software product for a refund, make sure to erase it from your computer, and don’t keep any copies of it. It would be completely unfair—and a violation of the Copyright Act—to buy a program, make a copy, take the original back for a refund, and then keep and use the copy.

People who tell you that you can’t bring a software product back if you have opened the package and put it on your hard disk are mistaken. They probably don’t understand the Uniform Commercial Code.

You might not find it easy to explain the law to a retailer or a publisher. Here is a letter, from Cem Kaner to the retailer, that explains the customer’s right to inspect and return defective products. Feel free to photocopy the next page and take it with you to the store, or to mail it with your letter to a publisher, mail order company, or consumer protection agency.

Please note: This letter provides general information and does not constitute legal advice about your particular situation. It is possible that the law will have changed by the time you want to use this letter, or that courts interpret the law slightly differently in your State. Please use this letter at your own risk. Also, unless you make arrangements directly with his firm, Cem Kaner is not your attorney. He has no lawyer-client relationship with you. Please tell the person that you send this to that this is a letter that you copied from a book, and don’t say that this is a letter from your lawyer.
 
 

Law Office of Cem Kaner
P.O. Box 1200, Santa Clara, CA 95052-1200

Dear Vendor: 

This customer has asked for a refund because he believes that the program that you sold him is defective. If he bought the program just a few days ago, then you probably owe him a refund. The Uniform Commercial Code (UCC), is the law in every American state except Louisiana (whose laws are similar). Article 2 of the UCC is the Law of Sales. American courts have consistently applied Article 2 to off-the-shelf software (software that is not customized). 

Section 2-601 of the UCC says that "if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may reject" them. This is called the Perfect Tender Rule. The customer can refuse to accept a product that has even a small defect, just as, when you go shopping for clothes, you can refuse to accept a shirt that has a loose thread or a small stain. 

The difference between shopping for clothes and shopping for software is that you can inspect the shirt at the store, to see whether there is a defect. If you didn't give the customer an opportunity to sit at your computer and check the program at your store (a task that might take a customer several hours), then he did not have a reasonable opportunity to inspect the program. His inspection happens after he gets the program back to his home or office, where he can see if the program works on his machine. If this is the only opportunity for him to inspect the product, he can break the shrink-wrapping around the disks, install the program on his computer, and return it if he finds defects during this initial try-out. 

A customer can't keep a program for a long time and then bring it back because it has a small defect. He has only a "reasonable time" to inspect it, long enough to walk through the features and the manual to see whether there are noticeable problems. The Perfect Tender Rule does not apply after the inspection/acceptance period. Section 2-606(1)(a) says that acceptance occurs after the buyer has had "a reasonable opportunity to inspect the goods." And 2-606(1)(b) says that "acceptance does not occur until the buyer has had a reasonable opportunity to inspect them." 

Court decisions differ on how long a "reasonable inspection period" lasts. It depends on the specific circumstances. In one case, the court refused to allow even a few hours to the customer. In others, involving complex products and difficult circumstances, courts have allowed up to six months. I believe that most courts would be sympathetic to a software customer who, within a few days or perhaps even a week after buying the software, comes back to your store to ask for a refund or calls you (see UCC 2-602(1)) to tell you that the software is defective and that he wants a refund. 

Yours truly, 

Cem Kaner, J.D., Ph.D.


ACTION PLAN

Every chapter in this book has an action plan. The one in this chapter is very simple:

  •  
  • Hurry up and ask for that refund.
  • If it’s too late, or if the program has done too much harm, or if you are too mad, or if the publisher has refused (or if you’re reading this book because you want to, not because you’re trying to deal with some worthless program) then read on. Enjoy Chapter 2.

Return to Bad Software: What To Do When Software Fails.

The articles at this web site are not legal advice. They do not establish a lawyer/client relationship between me and you. I took care to ensure that they were well researched at the time that I wrote them, but the law changes quickly. By the time you read this material, it may be out of date. Also, the laws of the different States are not the same. These discussions might not apply to your circumstances. Please do not take legal action on the basis of what you read here, without consulting your own attorney.
Questions or problems regarding this web site should be directed to Cem Kaner, kaner@kaner.com.
Last modified: Sunday October 26, 1997. Copyright © 1997, Cem Kaner. All rights reserved.