Unfair term in the licensing agreement

Norton Security | Norton Internet Security
1

EULA for NIS 09 has an term in it that can be deemed unfair under UK's Unfair Terms in Consumer Contract Regulations.

 

Specifically, the term is: "The Software may automatically deactivate and become non-operational at the end of the Service Period..."

 

This is exactly what happened to me. I used NIS 03/04 (can't remember exactly) and 06 and in neither case the software ceased operating when the subscription has run out. McAfee, Kaspersky, ESET, Sophos and AVG stress that their Internet security product will not become non-operational when the subscription runs out. They simply state that I will stop receiving updates, which is what I expected. 

 

UK's consumer regulations stipulate that a term is unfair if: "contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers." Clearly, the term that I quoted does create a significant imbalance in favour of Symantec, therefore it is unfair and, as per consumer regulations, not binding on me. Consequently, Symantec had no right to render the product non-operational. It even says later on in NIS 09's EULA that: "Notwithstanding the foregoing, nothing in this License Agreement will diminish any rights You may have under existing consumer protection legislation or other applicable laws in Your jurisdiction that may not be waived by contract." Combining the two, it is obvious that under UK consumer protection legislation Symantec is not authorised to make the software non-operational upon subscription's expiry because it is significantly detrimental to the consumers.

 

The consumer regulations also state that: "although standard terms may be drafted to protect commercial needs, they must also take account of your interests and rights by going no further than is necessary to protect those legitimate commercial interests". However, Symantec does go further by disabling the main functionalities of NIS when the subscription expires. If the product continues to remain operational, albeit out of date, then Symantec's commercial interests are not harmed, because I will not be taking advantage of their continuous investment in discovering new threats and releasing bug fixes and definition updates.

 

Can a member of Symantec's team please clarify Symantec's stand on this and advise me of how to make my NIS operational, though out of date, without having to renew my subscription?

 

Many thanks in advance.

2

One could be equally correct in saying that an antivirus product, so out of date, and without updated regulations, is equally non-functional.  I don't understand what possible use you think an out-dated product could be to you.  It does nothing more than sit on your machine giving you a completely false sense of security.

 

There are many freeware products that will provide you with much greater security than this, if you don't want to pay for any subscriptions.

 

By trying to get your Norton operational, you are not getting something for nothing, you are getting nothing for nothing.

3

To the contrary, there is significant functionality in NIS that does not require updates in order to work. Examples of such are network security, intrusion prevention, OS and application protection, parental controls and confidential information blocking. In fact, even the features that do benefit from updates should not cease functioning upon expiry of the subscription, because having the latest updates is not a mandatory part of those components functionality. My definitions could have been out of date for a month, but that wouldn't have stopped them working, would it? It may have reduced their effectiveness, but being less effective and being non-operational are two different things. So, as you can see, the product does more than provide protection from the Internet.

 

Therefore, by trying to get my Norton product operational I am getting something for nothing. Whether that something is actually something or nothing is a matter for another debate. Central to my point is that, by disabling the software almost completely, Symantec acted against current consumer legislation in my jurisdiction and is obliged, under law, to restore this functionality and provide compensation.

4

I am not a lawyer nor am I a Symantec employee but I did spend my working life dealing with licencing contracts on patents and know-how. (And in the UK too but before the EEC got too "organized")

 

The important thing with software is that you do not buy the product. You may purchase the media but basically you are taking a licence to use the product under defined tems for a defined period of time, say one year. When that period ends then under the defined terms your right to use the product ends and so stopping it from working is no different to what happens when your lease to a flat ends -- you can't just stay on in it under normal circumstances; or when your licence to download TV programs from the BBC ends -- if you continue to download the TV programs then you are likely to find yourself in trouble with the law.

 

When one looks at the enormous investment by Symantec (and similar commercial software houses) in the support of the software -- I don't mean the Forums but the work involved in detecting malware, devising protection and keeping it uptodate then it is not surprising that these firms have gone over onto the subscription plan with annual renewals.

 

I don't know the current status of Euro-law but I'm sure Symantec do and that they are operating within it.

 

Since you have quoted from the licence terms -- which are on the Symantec website and not just hidden away in a sealed box -- what you are really saying is that you did not read them before purchasing and assumed they would be the same as someone else's, which is always dangerous to assume in legal matters.

 

Getting protection on up to 3 PCs for $40 a year or less is pretty good value in my book.

 

I know the UK prices are higher because of the artificial exchange rate used in setting prices (not just for software) but on the other hand the published prices used to include VAT and sales tax at 17.5% as it used to be is a big load on the price compared with here.

5

Yes, I am aware that when purchasing I do not buy the product, but a license. However, your analogies of a flat lease and BBC license are not very good and do not reflect my situation. The flat lease one could be modified to mention things like gas, water and electricity and if you do not pay to for those then those are taken away from you, but you still have the flat with its walls and your furniture. In terms of the BBC one, they do not provide a license to download programs from them. There is an overall TV license which you have to get if you purchase a TV to watch live TV. However, if your TV license expires you don't have to return your TV to the shop where you bought it from and you can carry on playing games and watching DVDs on it. Clearly, the product remains useful without a TV license.

 

I'm not knocking Symantec for charging an annual fee for subscription to keep a product up to date, not at all. They are, however, at fault for disabling the software's functions if a subscription has expired. If I do not take advantage of Symantec's investment by not getting the updates and support, then I'm not doing any commercial harm to them. So why disable the software's functions? It's as if Symantec is actually punishing me for not renewing my subscription.That's another reason why that term in the license agreement is unfair.

 

My expectations were based on previous experience with NIS products and knowledge of how competitors operate in such situations. Regardless, the term I quoted falls under the definition of an unfair term as per consumer legislation in my country and I'm therefore not bound by it. Symantec stated themselves that local legislation prevails.

 

The matter of the price of renewal is a minor one to me. $74 is what it would cost me to renew. However, that's not my point. Sometimes the companies are too eager to make sure that as much as possible is in their favour without thinking about interests of the consumer. That's why we have consumer contracts regulations and office of fair trading here. More information can be read in this story: http://news.bbc.co.uk/1/hi/business/7252707.stm

 

 

Message Edited by ivan on 29-07-2009 01:42 AM
6

 

ivan wrote:

 

 

Yes, I am aware that when purchasing I do not buy the product, but a license. However, your analogies of a flat lease and BBC license are not very good and do not reflect my situation. The flat lease one could be modified to mention things like gas, water and electricity and if you do not pay to for those then those are taken away from you, but you still have the flat with its walls and your furniture.

 

In terms of the BBC one, they do not provide a license to download programs from them. There is an overall TV license which you have to get if you purchase a TV to watch live TV. However, if your TV license expires you don't have to return your TV to the shop where you bought it from and you can carry on playing games and watching DVDs on it. Clearly, the product remains useful without a TV license.

On the contrary when the lease to the flat runs out (a lease is a license to occup) you have to leave the flat since the flat is the property of the owner not of you.

 

You buy the TV set in a store and the TV set is your property, just as you own the CD when you buy NIS in a store. When you buy the TV you have to pay for a licence and that licence is as I said a licence to "download" the data from the BBC to the TV. Although the licence fee goes to the BBC it is my understanding, but that is an aside, that it is still illegal to use the TV set without having a valid licence -- ISTR this went through the courts when someone said they only used the TV sete to watch VHS tapes and the person lost. But this does not affect the issue.

 

You do not own the Symanatec product.

 

I'm not knocking Symantec for charging an annual fee for subscription to keep a product up to date, not at all.

 

Fine but that is not what your licence is -- your licence is to use the product on X PCs for a defined period and then you are told that it will stop working. 

 

 

They are, however, at fault for disabling the software's functions if a subscription has expired. My expectations were based on previous experience with NIS products and knowledge of how competitors operate in such situations.

 

IMO not if they warn you that it will happen -- I am dealing with "at fault" not with legislation.

 

 

 

 

Regardless, the term I quoted falls under the definition of an unfair term as per consumer legislation in my country and I'm therefore not bound by it. Symantec stated themselves that local legislation prevails.

 

 

I can't comment on that as I said since I am not a lawyer and in your initial message you quote:

 

"contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers."

and in my own non-legal view it is not inequitable when warned (ignorance of the law is no defense so would not that be argued for the terms of a licence you agree to?) that it will happen

 

[ ... ]: http://news.bbc.co.uk/1/hi/business/7252707.stm

 

That news item is some 18 months od -- how about something more uptodate? Did the NCC take action and if so with what result?

 

And if it is in the hands of the courts then I wouldl be very surprised if you get any comments from Symantec!

7

A better analogy would be when you subscribe to a magazine for a year. You get however many issues in whatever form. After your subscription runs out, are you expected to return them? Do they automatically self-combust to prevent you from reading them? Of course not. When you take out a contract with a mobile communications company you get a phone and an ability to call, text, connect to Internet etc. After your contract runs out, do you return the phone? Sure, you won't be able to make calls or text any more, but you'll still be able to play games, use it as a MP3 player, a calculator etc. Until now, I have never encountered a piece of software that ceased functioning when subscription expired. All products that operate a subscription model that I know of say that software remains functional, but not up to date. It's the de facto state of how things are handled.

 

My license is to use the product and to get updates if they become available. It's unfair, under my jurisdiction, for software to stop functioning if a subscription is not renewed. Therefore my license to use the product is an indefinite one.

 

You say that in your non-legal view it's inequitable when warned. That's a personal opinion and I respect it. However, the law says that an unfair term is not enforceable, regardless of whether the consumer has been warned. Likewise, it's impossible for a consumer to waive such a right because EULA says that consumer rights are not diminished regardless of what is stated elsewhere in the EULA. The NCC has contacted The Office of Fair Trading and the latter has yet to conclude its considerations. In the meantime, I have opened a case with my country's consumer watchdog, who will negotiate with The Office of Fair Trading, myself and Symantec to resolve this issue.

8

"I have opened a case with my country's consumer watchdog, who will negotiate with The Office of Fair Trading, myself and Symantec to resolve this issue"

 

Then it is still going through 'legal' proceedings etc or whatever you want to call it . So I can't see what you want from this Thread as I can't see Symantec posting anything (and have) due to the on going negotiations.

 

For instance   Reply   "No Comment, due to on going negotiations"

 

Quads 

9

As a consumer, I'd like to find out from Symantec why, in the light of UK's consumer legislation, they feel that that specific term is valid.

 

Also, while the negotiations are ongoing, I'd like for my NIS to be returned to its normal operational state, because Symantec have not yet met burden of proof and until my country's consumer legislation body deems that particular term as fair it is deemed unfair through reasonable cause and logic.

 

So those are my two aims for this thread: find out Symantec's stance and, while the considerations are ongoing, for my NIS to return to being operative.

10

As to this in your last post "find out Symantec's stance"  I would say you won't get that due to the ongoings,  that is easy to work out.

 

I do find it interesting that you are using Nortons forum,   while taking legal action

 

It's like taking a shop to court, but then going into the shop to buy or tell their customers the goings on.

 

Quads 

11

Ivan,

 

The Office of Fair Trading website states this:

 

What is an unfair term?

An unfair term in a contract covered by the UTCCRs is not binding on the consumer.

Test of fairness

A term is unfair if:

contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

'Good faith' means that you must deal fairly and openly with consumers. Standard terms may be drafted to protect commercial needs but must also take account of the interests and rights of consumers by going no further than is necessary to protect those legitimate commercial interests.

 

I am also not an attorney, but it seems to me that this fairness provision has everything to do with the terms of the contract (in this case a license allowing the purchaser to use the software on 3 PCs for one year) being clear and not deceptive, and nothing to do with the functionality of the software itself.  You were openly offered use of the software for a period of one year in exchange for the purchase price.  That is what you contracted for and that is what you received.  There is no unfairness or infringement of your rights under the contract.   What you appear to be arguing is that you have some sort of right to use the product for free outside of the contract, beyond the contract period.  Perhaps in the UK you do, but I don't see where anything you have cited here would have any bearing on that assertion.  But that's what courts are for - I'm just a guy posting in a forum.

12
Quads wrote:

Ivan,

 

I do find it interesting that you are using Nortons forum,   while taking legal action

 

It's like taking a shop to court, but then going into the shop to buy or tell their customers the goings on.

 

Quads

I think it's more tell the customers than buy. However, if you're hinting at some form of hypocrisy on my behalf, pardon me if you're not, then I do not think that this is the case. I feel that a forum is a good place to gather feedback on this issue, be it from Symantec or other forum users.

 

SendOfJive wrote:
 

I am also not an attorney, but it seems to me that this fairness provision has everything to do with the terms of the contract (in this case a license allowing the purchaser to use the software on 3 PCs for one year) being clear and not deceptive, and nothing to do with the functionality of the software itself.  You were openly offered use of the software for a period of one year in exchange for the purchase price.  That is what you contracted for and that is what you received.  There is no unfairness or infringement of your rights under the contract.   What you appear to be arguing is that you have some sort of right to use the product for free outside of the contract, beyond the contract period.  Perhaps in the UK you do, but I don't see where anything you have cited here would have any bearing on that assertion.  But that's what courts are for - I'm just a guy posting in a forum.

The terms of a contract can be as clear as fresh spring water, but that does not make them legally binding if they are deemed unfair under consumer legislation. In this case, the functionality of the software is impacted by an unfair term in the contract. That term was in the license agreement right from the very beginning of my Service Period. Whether I was aware of it or not is irrelevant, because it is detrimental to me as a consumer and because upon agreeing with the EULA I did not waive my rights under my country's consumer legislation. I am aware of my rights under the contract and those of Symantec, but those rights are superceded by those granted by my current jurisdiction. Yes, because the term that says that software will become non-operational upon subscription's expiry is not fair it is not binding to me. Consequently, I do have a right to use the product for free after my subscription has expired. Due to non-operational clause deemed not fair it is not binding and as such not enforceable, this is what gives me the right to use the product past its subscription's expiry date. I DO NOT have a right to receive updates, antivirus definition or otherwise, but I never argued that point. Symantec's commercial interests are not harmed if I continue to use the product after the subscription has expired. Clearly, by disabling the functionality of the product, Symantec has gone further than reasonable in order to protect their commercial needs and also did not take into account my interests and rights by punishing me for not renewing by rendering my NIS non-operational.

 

13

Ivan,

 

The term of the contract is one year.  Symantec is very clear in stating that you are purchasing a license to use the software for a specified period of time only.   After the contract expires and is no longer binding on either party, the principals can do whatever they want to do.  Symantec is not obligated to firewall your computer.  And you do not have to give them any more money.  There is no longer any agreement in place.  The statutes you cite are about terms in a contract that make it impossible for you to exercise the rights granted to you specifically under that contract.  You never had the right to use the software for more than a year, in the first place.  In fact, if you want to argue good faith, you are specifically told in the agreement that in order to continue using the software you must renew the license.  So where are you seeing that Symantec ever granted you a contractual right to perpetual use?  And if they did not do so, what contractual obligation are they now failing to fulfill?  

14

 

I make the following observations. I will not be debating the issue further or responding to this thread or PM's.

 

Regretfully IMO you are mistaken in your presumption that the term in question can be deemed unfair.

 

The reasons are as follows:

 

The legislation in the UK is covered by Statutory Instrument 1994 No. 3159
The Unfair Terms in Consumer Contracts Regulations 1994 (hereinafter "SI")

 

1. Clause 3(2) of SI states that "no assessment  shall be made  of the fairness of any term which -

(a) defines the main subject matter of the contract, or."

 

In this case the main subject matter is the Licencing of software for your use. The term which you claim is unfair is set out in the very first clause of the EULA under section 1 Licence and reads " The Software may automatically deactivate and become non-operational at the end of the Service Period..". Therefore the term may be said to be part of the definition of the main subject matter of the contract. If so upheld no assessment can be made of the fairness of this term.

 

2. Notwithstanding 1 above, the SI states in clause 4(1) that an unfair term is a term which "contrary to the the requirements of good faith..."

    To test whether a term satisfies the requirement of good faith, regard must be had to matters specified in Schedule 2 of SI.

(clause 4(3) of SI).

 

Schedule 2 states

"

  •  
       (a) the strength of the bargaining positions of the parties;
       (b) whether the consumer had an inducement to agree to the term;
       (c) whether the goods or services were sold or supplied to the special order of the consumer, and
       (d) the extent to which the seller or supplier has dealt fairly and equitably with the consumer."
    • In making an assessment of good faith, regard shall be had in particular to —

 

There is nothing that I see in the said term which appears to be contrary to the matters of good faith.

 

3. Notwithstanding the above, clause 4(2) SI, states that an assessment of the unfair nature shall be made taking into account "the nature of the goods or services for which the contract was concluded..."

 

  It is in the nature of any licence of use, particularly for software, that the usage is made whilst the licence has been acquired, and that no use is granted where a licence does not operate. In other words when the licence expires the use of the software licence ceases.

 

You appear to be claiming usage of software licence after the licence expires. Accordingly, I cannot see that there is anything unfair in the term.

 

 

15

I can't say I knew about the software becoming totally disabled at the end of the year I've paid for but it doesn't bother me that it will be. I'll always want to keep a security product up to date and would remove one where updates had expired.

 

Symantec might think it better to disable the software altogether rather than possibly be held responsible for an infection caused by an out of date but still working product. Perhaps that is indeed a better approach. No grey areas there.

 

Because the efficiency of protection depends on constant updates, maybe none of the previous comparisons mentioned apply. For instance, an expired contract on a telephone doesn't leave it in danger of becoming a spam zombie, or your bank details being compromised (etc.).  Same for the other comparisons in my opinion. An out of date security product (in particular) doesn't seem worth keeping. Even if a legal point does exist, it is an unimportant one to me.

 

I've got another 235 days to go on my current subscription. At the end of that, I'll either renew or remove NIS. That decision will based on factors other than the one under discussion.

Message Edited by Tryer on 07-28-2009 11:54 PM
16
SendOfJive wrote:

Ivan,

 

The term of the contract is one year.  Symantec is very clear in stating that you are purchasing a license to use the software for a specified period of time only.   After the contract expires and is no longer binding on either party, the principals can do whatever they want to do.  Symantec is not obligated to firewall your computer.  And you do not have to give them any more money.  There is no longer any agreement in place.  The statutes you cite are about terms in a contract that make it impossible for you to exercise the rights granted to you specifically under that contract.  You never had the right to use the software for more than a year, in the first place.  In fact, if you want to argue good faith, you are specifically told in the agreement that in order to continue using the software you must renew the license.  So where are you seeing that Symantec ever granted you a contractual right to perpetual use?  And if they did not do so, what contractual obligation are they now failing to fulfill?  

The duration of the contract is irrelevant if the local legislation deems that due to wording of the contract the company has to allow an individual to continue using its product. Symantec did not put it into the contract that I have a right to perpetual use, but that does not mean I do not have one. If it is deemed that Symantec acted unfairly when it rendered my NIS non-operational, then that clause is not binding and must not have been enforced on me. This means that NIS must be returned to its operational state. Since there are no other restrictions on the duration of how long the software is operational other than length of subscription then I am automatically given a perpetual license to use the software. Not to get updates like bug fixes or antivirus definitions, but to just have NIS running on my machine. 

 

cgoldman wrote:

 

It is in the nature of any licence of use, particularly for software, that the usage is made whilst the licence has been acquired, and that no use is granted where a licence does not operate. In other words when the licence expires the use of the software licence ceases.

 

You appear to be claiming usage of software licence after the licence expires. Accordingly, I cannot see that there is anything unfair in the term.

 

I beg to differ. It's important to consider two issues: a) is it fair for Symantec to disable the software after the sub expires b) Is it fair for them to stop me accessing the updates. I agree that b) is fair. However, I do not agree that a) is fair. It does no harm to Symantec to allow the software to continue functioning. There is precedent because some previous versions kept on working and there's a reasonable expectation of what happens when a sub expires based on how an overwhelming majority of Symantec's competitors handle the situation. Clearly, they do not think that their commercial interests are endangered by allowing the software to function. Also, Symantec do not take into account my interests, as they must, by rendering the software non-operational.

 

Tryer wrote:

I can't say I knew about the software becoming totally disabled at the end of the year I've paid for but it doesn't bother me that it will be. I'll always want to keep a security product up to date and would remove one where updates had expired.

 

Symantec might think it better to disable the software altogether rather than possibly be held responsible for an infection caused by an out of date but still working product. Perhaps that is indeed a better approach. No grey areas there.

Perhaps it does not bother you, but that's your prerogative. One cannot be blamed for exercising his rights under his consumer legislation. Obviously, if I get infected by a virus that would have been detected by NIS with the updates newer than mine then I would not blame Symantec. I do not expect to get any updates or technical support without a subscription. Completely disabling the software goes against the de facto standard of how these situations are expected to be handled. Clearly, Symantec are punishing me for not renewing the subscriptiton, while their rivals clearly do not see commercial harm in letting their products continue operating, albeit out of date. By doing that Symantec is not taking into account my interests as they must by law.

 

 

17

 

ivan,

 

At the time that NIS became non-operational there was no longer a contract in force since by not renewing, you allowed it to lapse.  Note the wording:  The Software may automatically deactivate and become non-operational at the end of the Service Period.  If it were during the service period you would have a case as that would have violated your rights under the license.  But since the deactivation occurs when there is no longer a Service Period to which you are entitled use of the software, it is a non issue.  That statement in the wording of the license is in fact an act of good faith in that it warns you about something that will happen after the contract expires.  That disclosure is probably not even required by law, since it deals with an event that will occur outside of the license period.  So your argument that Symantec did not act in good faith is disproven by the very clause that you cite as the basis of your complaint. 

 

I look forward to your sharing with us the outcome of your legal action once a determination has been made on the merits of your case.

18
SendOfJive wrote:

 

ivan,

 

At the time that NIS became non-operational there was no longer a contract in force since by not renewing, you allowed it to lapse.  Note the wording:  The Software may automatically deactivate and become non-operational at the end of the Service Period.  If it were during the service period you would have a case as that would have violated your rights under the license.  But since the deactivation occurs when there is no longer a Service Period to which you are entitled use of the software, it is a non issue.  That statement in the wording of the license is in fact an act of good faith in that it warns you about something that will happen after the contract expires.  That disclosure is probably not even required by law, since it deals with an event that will occur outside of the license period.  So your argument that Symantec did not act in good faith is disproven by the very clause that you cite as the basis of your complaint. 

 

I look forward to your sharing with us the outcome of your legal action once a determination has been made on the merits of your case.

Since the term that said it would become non-operational was unfair throughout the duration of the contract then it's not binding and should not have been enforced by Symantec by rendering my NIS non-operational. Everything that is related to the software that happenes prior to commencement of contract and after it expires is still covered by it to a reasonable extent. There was no point in arguing about it during the duration of the contract since at that time the software was still been operational and I received updates. Also, since I could not reasonably expect the software to stop functioning then it was not necessary for me to bring it up before. It happened now so we need to deal with it now. We can also be picky and say that the time when the license expired and the time when the functions of software were disabled were different, the latter happened after the former and not immediately either. As a result, Symantec took action outside of the contract's boundaries and it should not have done that. The EULA says that NIS will be non-operational at the end of the contract, not after the contract expired.

19

Hi ivan:

 

I noticed this thread and just have to say that you are trying to "beat a dead horse" here.

 

As a businessman, I could honestly say that almost everything you do in life (i.e. buy, sell, use, being a citizen, etc.) has at the very least, an implied "terms and conditions" clause inherently within it. Unfortunately, many facets of law are quite complex and are not designed to be readily understood by the lay person.

 

The posting by delphinium is correctly said, "what good is the product if it is not protecting you?"

 

Time to move on, IMHO.

 

Plankton :0|

Message Edited by Plankton on 07-29-2009 01:40 PM
20
ivan wrote:
if I get infected by a virus that would have been detected by NIS with the updates newer than mine then I would not blame Symantec.

It's a contentious world we live in and some might argue that Symantec are still liable. That aside, I can't understand why you'd want to use an out date security product. Is it more that you want to just raise the legality of the matter under discussion rather than to continue using NIS?