The first question Caspar Willemsen from Willemsen ICT asked was about the installation key: “Correct,” Caspar begins. “We received a license key by email, along with a link to download the software. This is not what I am used to. Normally, the software, license, and installation key are available in a Microsoft portal.”
Peter van Uden, certified software license expert at Quexcel: “At the beginning of the process, we had to gather a lot of information to find out what had really happened. All this to find answers to questions such as ‘What did you buy?’, ‘Who delivered what?’, ‘How?’, and so on. Finding the facts is important for giving the right advice, especially when there is disagreement between a buyer and seller.”
Second-hand licenses
After gathering and investigating the facts, it became apparent that the supplier had not supplied new Microsoft volume licenses, but so-called used or second-hand licenses. In the next phase, Willemsen ICT discussed this information with the supplier in order to find a solution. “The supplier then admitted that second-hand software licenses had been supplied, but at the same time claimed that this had also been offered. In addition, the supplier indicated that ‘many companies’ buy used software licenses and that there is no difference between used and new,” says Caspar Willemsen. “But in fact, it was not at all clear that they were offering used licenses, and ultimately there are differences.”
Legal advice
Because there was ultimately a difference of opinion between Willemsen ICT on the one hand and the supplier on the other, Willemsen ICT decided to take legal action. Peter van Uden: “I advised Sandra Koloc as a lawyer. I have worked with Sandra before and she has in-depth knowledge of the IT industry.”
Expert knowledge
Sandra Koloc: “As a lawyer, I can provide legal support to companies when they go to court. In this case, we built a case around the question: ‘Should the supplier have made it clear in advance that he was selling used software licenses? Could Willemsen ICT have known that the licenses had been used before? And would it have made the purchase if it had known that in advance?’. It’s not just the legal differences between new and used licenses that play a role here. To understand the actual and practical differences between second-hand and new software licenses and what software licenses, terms of use, contracts, and other Microsoft legal documents mean in real life, we need expert knowledge.”
Peter van Uden: “I have often advised on legal matters, including to judges. Judges lack specific knowledge of Microsoft licensing, which is understandable. It is important but also difficult to explain Microsoft licenses in terms that everyone can understand. It is good that this has been achieved again in this specific case.”
Court ruling
Willemsen ICT brought a case before the subdistrict court, and the judge ruled in favor of Willemsen ICT, annulled the purchase agreement, and ordered the supplier to refund the purchase price. Ultimately, the expert’s arguments and explanations regarding Microsoft licenses helped the judge make a sound and correct decision.
“I am glad I contacted Peter. He was able to clearly explain the practical difference between new and used licenses in a way that made it clear to the judge that new is really something different and why we needed it. Sandra included this in her legal documents to the court, resulting in the positive outcome described here.”
Caspar Willemsen
