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HTCClassAction - the HTC response


Guest PaulOBrien

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Guest bydandie
You need to be careful here. The Sales of Goods Act only covers goods not fit for purpose (section 48), and gives the consumer certain rights to rectify it under the statutary 12 month warranty. "Reasonable time" frames is as far as the Act goes (as it should) and i would interpret it as that time being in relation to sellers of similar goods, not retailers in general.

There is no mention at all of the right to return "should you not like it" (that i can see, happy to be proven wrong!). Only section 34 states you have the right, again, to a reasonable time to inspect the goods, and then reject them if the are unfit (the contract of sale is not complete until you accept it).

It's annoying, the sales of goods act gives consumers an enormous amount of power (bearing in mind it covers everything from you buying your morning newspaper to a car manufacturer buying 100 tonnes of steel...). However these powers can be significantly restricted by the retailer through the contract of sale. Joe Bloggs consumer doesn't necessarily realise this and carries on regardless. The only option you have as an informed customer in this case is to shop elsewhere...

(NB: Note i can only speak as far as UK law goes :) I'd assume other countries have similar rules, but the specifics likely different)

The issue is that ALL contracts are subject to the Unfair Contract terms act 1977, whereby an agreed contract can have things taken out or inserted if it would be deemed that both parties didn't have the same level of understanding of contract law. Very few retailers understand their obligations, whether it be on contract law, the Data Protection Act or anything else; it's a fact of life. :D

BTW, I agree with every review that praises the Kaiser the commens are warranted and justified IMHO.

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Guest Macker1973
In fact, anything that has to do with Direct Draw, Direct X and any fluid movement of pixels on the screen seems behave in an unacceptably slow manner.

http://www.petitiononline.com/tytn2vid/

Over 7000 people have signed this petition so I would say its fair to say it performs like a dog.

no slower than my Hermes

The problem is it performs no better than the Hermes.

My point with the other sites is that performance was not poor enough for numerous sites to define it as having poor performance.

And my point is all the reviews where poor and not one pointed out the performance issues that clearly exist. Many made claims that we all know know are not correct mainly about video performance, ui performance and the camera and video usage. Clearly the performance is poor enough to have 5000 dollars committed to getting better drivers and the class action web site being set up. I can't imagine why no reviews mentioned these issues as they are blatant other than avoiding their supply of pre production devices drying up.

Firstly, i don't see Trustedreviews as having any WinMo bias? Secondly, ask the thousands of posters in the Kaiser review thread if they'd rather have waited?

Well trusted reviews certainly did give a very accurate review, either they where biased or they didn't really pay enough attention to it. Maybe you should read some of the comments on the petition and see if they would have preferred an accurate review.

Whats your point? As i detailed above, you have the right to reject the product if delivered. As for "very few stores having Kaisers available for trial", how do people purchase them?

As you surely know many people buy from ebay, very few vodafone etc outlets have Kaisers in stock, you have to ring up and get them posted. These people including me rely on product reviews which in this case where almost 100% inaccurate across nearly all Kaiser reviews.

As i said, BT audio is not something i use, so can't really speak from experience.

Well there are plenty of issues being discussed across several forums.

Just to clarify - i'm not trying to convince everyone the device is perfect. I see and appreciate the slow performance. Unfortunately you and the others who now have issue with this made the assumption as a consumer that the product performed in a different manner to its actual capabilities. HTC didn't help this, but at the same time they didn't say otherwise. Bad PR, but not illegal (which is what this thread is about?). Judging by a number of posts on this thread you'd think the devices were unusable. The reason i initially replied to your post was to point out your incorrect and inaccurate points.

Nonsense HTC and many reviews across many websites led people to believe the device performed better than it did. I don't really blame HTC for this as all companies exaggerate to make sales. However for the life of me I cannot understand why websites like this did not mention anything about the poor performance during their reviews. Then I noticed that the review was done on a preproduction unit and this now leads me to believe that you have some sort of relationship with HTC or Microsoft. Not that this is a problem if it does not interfere with your reviews.

He did. See my initial reply to your post for details. If you're planning on spending hundreds of pounds you don't just scan over the first post.

Well if he paid for a pre production device he would be the only person I know to have done so. Considering the coverage his review would give HTC I am very surprised. I often wonder how I could get a pre production device as I am pretty sure they just don't give them out to anyone.

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Guest Paul (MVP)
I can't imagine why no reviews mentioned these issues as they are blatant other than avoiding their supply of pre production devices drying up.

Then I noticed that the review was done on a preproduction unit and this now leads me to believe that you have some sort of relationship with HTC or Microsoft. Not that this is a problem if it does not interfere with your reviews.

Well if he paid for a pre production device he would be the only person I know to have done so. Considering the coverage his review would give HTC I am very surprised. I often wonder how I could get a pre production device as I am pretty sure they just don't give them out to anyone.

Did you even read the posts above yours?

P

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Guest Monolithix

Well as fun as going in circles is i'm going to reply once more and leave it at that.

7000 people have signed saying performance is not what they expected. Not necessarily that it performed poorly

HTC never claimed it performed better than existing devices. All they said was that the new products were based on a new chipset.

Regarding reviews, clearly those both with and without the rose-tinteds' were wrong.

Devices delivered directly from suppliers have to have a cool-off period *by law*. Customers would have had at least a week to determine this. Furthermore, anyone can walk into an Orange/TMob/Voda shop and have a play first.

Video playback performance was mentioned. I still don't agree day-to-day performance is substandard.

/me out.

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You need to be careful here. The Sales of Goods Act only covers goods not fit for purpose (section 48), and gives the consumer certain rights to rectify it under the statutary 12 month warranty. "Reasonable time" frames is as far as the Act goes (as it should) and i would interpret it as that time being in relation to sellers of similar goods, not retailers in general.

There is no mention at all of the right to return "should you not like it" (that i can see, happy to be proven wrong!). Only section 34 states you have the right, again, to a reasonable time to inspect the goods, and then reject them if the are unfit (the contract of sale is not complete until you accept it).

It's annoying, the sales of goods act gives consumers an enormous amount of power (bearing in mind it covers everything from you buying your morning newspaper to a car manufacturer buying 100 tonnes of steel...). However these powers can be significantly restricted by the retailer through the contract of sale. Joe Bloggs consumer doesn't necessarily realise this and carries on regardless. The only option you have as an informed customer in this case is to shop elsewhere...

(NB: Note i can only speak as far as UK law goes :) I'd assume other countries have similar rules, but the specifics likely different)

Read my posts again. I was specifically referring to consumers returning faulty goods, for which the normal UK period to reject them (and therefore opt for a refund/replaceement instead of repair) is 28 days, and, as has been pointed out, in the EU's view can be up to 6 months. Even the bargain-bucket outlets such as Play.com respect this, despite them being offshore. As for SoGA's powers being significantly restricted by the retailer by contract of sale, this what many traders would have you believe, but it's complete rubbish. No retail contract can override your statutory rights - no matter what they put in their "T&C". B2B sales are entirely different of course.

Back on topic - I can't see the HTC being forced to do anything about the Kaiser as you would have a hard time proving it wasn't fit for purpose. It does everything is is supposed to do, even though some aspects might not be as fast your expectations. If the HTC had published a typical fps rating, you might have had a case, but even then, only to get your money back, not for some hair-brained "class action". At least HTC fare better than Eten products, which often don't do what they say on the spec sheet - and still don't get fixed.

The only way HTC will improve their products is if they stand to significantly lose out on sales due to poor reviews and industry / customer perception. Which is where some posters have a point, in that reviews should make more of shortcomings against wider benchmarks. For example, if HTC claim the Kaiser is the best multimedia smartphone on the market, the review should include comparisions of video performance against current market leaders in that field, such as the iPhone and N95/82, not just against a field of HTC and WM mediocrity. The "excellent camera" comment is a case in point, and in context, and Paul's defence, I can see why it was written. However, whilst it might be the best HTC have ever offered, at the end of the day it's still crap compared to most other "flagship" camera phones, and reviews should make this clear.

Edited by Metoo
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I don't think you need to be some sort of video-phile to notice that playback on the Tytn II is pretty choppy. Everyone makes allowances for screen size (or doesn't use a mobile for video at all) but that doesn't mean to say that skipped frames are acceptable too. And really it's about a lot more than that anyway - many of the everyday functions of the Tytn II are impaired by the same screen lag caused by the same lack of video drivers. Everytime you fire up the camera, every time you slide the keyboard open or shut, every time you open an app, you're experiencing some side-effect of HTC's decision to hamper these devices.

HTC want people to think this is about high-def video, or a minority of hardcore gamers geeking out over 3D acceleration, when in fact this is a core performance issue affecting every user to some extent.

I believe this is the real crux of the matter. Yes HTC did not suggest that the handsets were video capable etc. However it is for me personally, the dissapointment as an avid HTC fan that these everyday functions are being slowed down by the lack of effective video drivers.

On reflection when first picking up a TyTn II, I did note that many of the everyday functions on my previous TyTn I were of comparable speed (dialling a phone number/opening keyboard). This at first puzzeled me, why would a significantly improved device offer similar speeds??? But I was not overly concerned at the time; there was nothing of comparison. It had the best range of facilities on offer, which I required.

However, this debate has made me consider (I know this has been mentioned) the time when I test drove an Apple Iphone, the speed of the most mundane tasks were a lot quicker than that of my TyTn II. This did not phase me at first, I am afterall a hardcore HTC fan. However this debate has began to make me think. One of the best features for me on Windows Mobile devices is the ability to surf web pages. HTC introduced to me the world of web browsing using a phone. The Iphones browsing experience with its effortless scrolling, coupled with this news, has really started to make me think....

So please, avid HTC fans alike, do not be so narrowminded. In view of this response from HTC consider the attitude HTC has adopted, when choosing your next device.

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Guest Paul (MVP)

WinMo clearly isn't the leader in web surfing, the iPhone's safari browser coupled with it's screen res takes that award by a mile (for now). Of course, the iPhone is bad at lots of things too...

P

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Guest Macker1973
Well as fun as going in circles is i'm going to reply once more and leave it at that.

7000 people have signed saying performance is not what they expected. Not necessarily that it performed poorly

HTC never claimed it performed better than existing devices. All they said was that the new products were based on a new chipset.

Regarding reviews, clearly those both with and without the rose-tinteds' were wrong.

Devices delivered directly from suppliers have to have a cool-off period *by law*. Customers would have had at least a week to determine this. Furthermore, anyone can walk into an Orange/TMob/Voda shop and have a play first.

Video playback performance was mentioned. I still don't agree day-to-day performance is substandard.

/me out.

The letter on the petition website which has now over 8000 signatures clearly states and I quote again "In fact, anything that has to do with Direct Draw, Direct X and any fluid movement of pixels on the screen seems behave in an unacceptably slow manner." How do you interpret unacceptable slow manner as meaning not what we expected though not necessarily that it performed poorly. It without doubt is critical of the Kaisers performance and if you actually look through the petition I see comments like

Simply unreasonable for a top end product.

it all makes sense now! i thought it was sluggish...

Its putting a lot of my collegues, off getting a TyTN II.

Just looking to get this resolved ASAP! This phones video is awful for a $400 dollar phone.

Your right we are going round in circles and again just because modacos review was just as poor and misleading as others is no excuse for it. Maybe you should avoid pre production reviews in future.

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Guest Paul (MVP)

Maybe you should avoid reading them and we'll post them for the benefit of everyone else who IS interested. Good day.

P (also leaving this topic to do more worthwhile things)

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Guest Macker1973
Maybe you should avoid reading them and we'll post them for the benefit of everyone else who IS interested. Good day.

P (also leaving this topic to do more worthwhile things)

Its true maybe you should spend more of your time actually writing more accurate reviews I just hope people realise to take reviews on a preproduction device with a pinch of salt. Though I have noticed that nearly all the websites reviewing the Kaiser had preproduction units.

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Guest bydandie
Your right we are going round in circles and again just because modacos review was just as poor and misleading as others is no excuse for it. Maybe you should avoid pre production reviews in future.

Tell you what, try writing your own reviews rather than simply sneer and then you might understand how difficult it actually is. You have contributed nothing but flame others and you have around 20 posts, congrats as you're complaining against a guy that is a gadget geek and provides reviews of WHAT HE BUYS. No you may not agree with what he says, but that is your perogative, running a site like this needs fresh information and if you actually took the time to look at the devices he reviews, they are mainly one's he's bought so get a grip and quit whining!

Last I heard Paul HAS A VARIO III which is a release unit and still feels his points are valid. I don't live here as you can see from my sig, so have no reason to stick up for him, but Paul does not deserve baseless diatribe from trolls like you who can't be bothered listen to another's point of view.

If you want an iPhone then great, if you hate the TyTNII then fine, but stop slagging off people without a basis for it.

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Guest Macker1973
Tell you what, try writing your own reviews rather than simply sneer and then you might understand how difficult it actually is. You have contributed nothing but flame others and you have around 20 posts, congrats as you're complaining against a guy that is a gadget geek and provides reviews of WHAT HE BUYS. No you may not agree with what he says, but that is your perogative, running a site like this needs fresh information and if you actually took the time to look at the devices he reviews, they are mainly one's he's bought so get a grip and quit whining!

Last I heard Paul HAS A VARIO III which is a release unit and still feels his points are valid. I don't live here as you can see from my sig, so have no reason to stick up for him, but Paul does not deserve baseless diatribe from trolls like you who can't be bothered listen to another's point of view.

If you want an iPhone then great, if you hate the TyTNII then fine, but stop slagging off people without a basis for it.

Firstly the review was based on a preproduction device, the review clearly states this.

It is my perogative to point out his review was in my opinion flawed, of course no more so than all others who did a review but flawed none the less. I have read Pauls and Monolithix's posts very carefully and quite frankly I think they are very weak. For example to say "7000 people have signed saying performance is not what they expected. Not necessarily that it performed poorly" is lame when you actually read the petition and the comments added.

I have made no personal attacks on anyone and have no intention of doing so. I too have had multiple HTC based devices including the original SPV, upto the Kaiser and many non windows mobile devices so don't give me the gadget geek lecture please it doesn't wash. Again in my opinion no windows mobile device has been hyped as much as the Kaiser yet disappoint so much. Paul in my opinion deserves fair critque for an inaccurate review which may have lead people to purchase a poorly performing device. I am also sure Paul and Monolithix are not so fragile as to not be able to handle such critique

Over 8000 people have signed the petition so just don't take my word for it.

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Guest Phil_UK

Hi

People like macker1973 really need to get this out of their head and get real. If you think HTC and the like give out pre-production models to websites, then you're smoking something and clearly have no idea how these things work.

I don't want to continue an argument so correct me if I am wrong, however you did have a Kaiser way before they were released. You spoke of BETA roms, white demo packaging and having contacts with HTC, so you had a pre-production phone for some time. If as you say HTC don't like to give these out very often and so it's not guaranteed you would get new models for review then adds to the suspicion some may feel that a reviewer would not like to say anything bad for fear of missing out next time.

Do you think HTC want their products to be posted all round the web months before their release? Of course not. The best you get out of ANYONE is generally a device for a couple of weeks loan AFTER it's started shipping to customers anyway.

There were pictures, reviews and YouTube videos of the Kaiser a long time before the release. People got those phones from somewhere and that ultimately is HTC. It's called viral marketing and raised the hype and expectations to a very high level for the Kaiser, and HTC could have asked for nothing better in terms of how much free publicity the phone got. Companies kill for this type of excitement and buzz around a new gadget and spend a lot more money trying to achieve it.

HTC's problem is they let the viral marketing work too well and didn't bother clarifying any mis-information out there as that would have poured cold water on the hype being generated, affecting the sales. HTC were really instrumental in allowing everyone to believe the performance of the phone would be better than the reality. Press releases spoke of the Kaiser and then the Qualcomm chipset with no clarification that "not all features are supported".

In your review you stated, "Firstly it's worth noting that even though this is a preproduction ROM which will still receive a number of revisions before launch, it is extremely fast and stable. I switch to the Kaiser from a T-Mobile Wing (200MHz OMAP) and of course it is way, way faster. Even compared to the Trinity, which has a 400MHz processor, it feels snappy. So you can understand perhaps why people are a little dismayed that after having read the review here the reality was somewhat different. Perhaps pre-production firmware used the correct drivers so what you reviewed isn't what we ended up with? I certainly could never describe the phone as snappy :)

Regards

Phil

Edited by Phil_UK
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Guest NuShrike
Thta comparison is absolutley hogwash on several counts, not least because it is comparing two compelety different OS's and hardware architectures. TomTom could probably run faster than both on a 3GHz desktop PC WM emulator. So what. It doesn't support any arguments over the Kaiser peformance. Anybody who has owned a 400MHz WM2003SE device will know that it was snappier than the WM5 sucessors, because programs loaded from fast SDRAM instead of the much slower flash. That's the price we paid for not losing all our data when the batteries went flat.
I didn't recognize your strawman argument until now.

You have not at any point invalidated the comparison. The whole point of the comparison is that older devices and older hardware demonstrate better competency on the TomTom demo than the latest and greatest.

You argue your hand of SDRAM vs flash except even WM5/6 runs programs in SDRAM. Flash is used only for persistent storage or XIP which is only really used by the OS.

The video clearly demonstrates slow video updates rotating vector data currently running in ram; not about loading programs. You could argue the data is loading slowly out of persistent storage except why would that be any different from pre-WM5/6 devices?

Love your 3GHz red herring.

Here's a nice breakdown by some "insiders": http://forum.xda-developers.com/showpost.p...mp;postcount=56

Basically, Qualcomm refused anybody but themselves to write drivers for their chips and Q really sucks at it. Also, HTC tends to release stuff unfinished to be first to market.

Edited by NuShrike
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I didn't recognize your strawman argument until now.

You have not at any point invalidated the comparison. The whole point of the comparison is that older devices and older hardware demonstrate better competency on the TomTom demo than the latest and greatest.

You argue your hand of SDRAM vs flash except even WM5/6 runs programs in SDRAM. Flash is used only for persistent storage or XIP which is only really used by the OS.

The video clearly demonstrates slow video updates rotating vector data currently running in ram; not about loading programs. You could argue the data is loading slowly out of persistent storage except why would that be any different from pre-WM5/6 devices?

Love your 3GHz red herring.

Here's a nice breakdown by some "insiders": http://forum.xda-developers.com/showpost.p...mp;postcount=56

Basically, Qualcomm refused anybody but themselves to write drivers for their chips and Q really sucks at it. Also, HTC tends to release stuff unfinished to be first to market.

You're forgetting that to do an A:B comparison, and prove that the sluggishness is HTC's fault, you have to elimimate all other variables - the hardware platform, the OS, and the application. AFter all, TomTom doesn't get all it's map information by rotating the same data in RAM - unless you're going in circles. The difference seen in the video could be down to any or all of those factors, or even the way TomTom have coded screen refreshes for WM5/6 (I've never seen the smooth TTN updates on ANY WM5/6 machine). Remember this thread started about a Class Action against HTC having crippled the Kaiser, which the video was supposed to support. All it would do, if presented as "proof" that the issue was of HTC's making, would give them an instant get out to say the problem is inherent to the OS, hardware reference, or application, and that the Kaiser's performance is perfectly acceptable and normal for a machine of that design.

The Mogul vs. Touch demonstration is more relevant, as both machines are using the same OS and memory model, without 3rd party apps - and one has half the CPU speed. Or could HTC claim that difference in up/down scrolling speed is specifically because of their TouchFlo optimization, which the Mogul doesn't have?

Edited by Metoo
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Guest Macker1973
I was just saying it wasn't given out by HTC, not that I didn't have it!

Non the less you had one and clearly it came from HTC wether directly or indirectly does not really matter. HTC pre production devices where never falling out of trees. What is more concerning is that all the reviews that I have read using preproduction models comment on the increased performance of the device over previous models. The video issues, poor camera etc where largely not even mentioned. Again I point out the similarities of car magazines not wishing to give new cars a bad review as they would not get to see the next new models pre release. I am not saying this is what is happening across the popular windows mobile sites but I am extremely suspicous.

When talking about for example the iPhone many people in the windows mobile community can quite easily point out its flaws. On certain nokia forums I sometimes frequent ( also a nokia owner) reviewers are often very critical. I cannot see why reviewers should not give accurate and independant reviews in the wider windows mobile community. The simple question is how could something as major as software based graphics leading to poor performance not be mentioned in one review of the Kaiser, infact quite to the contrary. These reviews are quite indefensible.

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Guest NuShrike
You're forgetting that to do an A:B comparison, and prove that the sluggishness is HTC's fault, you have to elimimate all other variables - the hardware platform, the OS, and the application.
You're still missing the point. It doesn't matter if it's ATI's, Qualcomm's, Microsoft's, or HTC's direct fault.

We're all arguing WHY does an older machine run things faster, versus the latest and greatest with a dual-core CPU and all that new bling-bling hardware jazz.

It's about HTC accountability in selling a device that appears to be slower than their previous devices at a much greater price. If HTC sold it as "hey, we got more bands and ram in this one" as a separate new device then it would be okay. Instead, it's billed as the latest flagship model and successor to the immensely successful previous flagship TyTN. What does successor and flagship usually mean?

It's also about their denial of the issue, and plain refusing to do something about it such as blaming it on WM6. It's also called false advertising, and Verizon has already been held accountable in court for acting similarly.

Edited by NuShrike
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Guest Paul (MVP)
Again I point out the similarities of car magazines not wishing to give new cars a bad review as they would not get to see the next new models pre release.

Again I point out you have no idea what you are talking about.

P

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Guest Paul (MVP)

I don't plan to go round and round in circles wasting my time on you (i've much better things to do), so i'm locking the topic. I stand by everything i've written about the Kaiser, if you don't agree with my review (which is my personal opinion as is every review), then i'm sorry about that but there you go.

I suggest you go and spend your time elsewhere.

P

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