Having issues with online shop...where do I stand?

Bigsy · 19 May 2011 at 11:08

Basically I bought a netbook, I got it the yesterday and within seconds of opening it I could see that it had very limited screen tilt, like barely past 90 degrees. This just isn't comfortable for me and I was genrally disappointed with the build quality in general so I wanted to send it back, I thought I had 7 days to return it.

So I tried to return it and this is the response I got:

Thank You for your email, unfortunately as the manufacturers seal has been broken and due to software licensing we would be unable to accept the item for refund.
Current legislation does not permit the return of opened items which contain licensed software.

Bare in mind this is a preloaded netbook there is no physical software included with it at all, it hasn't even been turned on and I can't return it? Surely I can't be stuck with it. I paid with a credit card, do you think they might be able to sort something out for me?

NeoNemesis · 19 May 2011 at 11:11

Distance Selling Act applies here I think

http://www.oft.gov.uk/about-the-oft/legal-powers/legal/distance-selling-regulations/

nas · 19 May 2011 at 11:11

some dont accept items back unless there is a manufacturers fault, which would most likely put you in the exchange rather than refund category.

Bes · 19 May 2011 at 11:13

Bigsy said:
Basically I bought a netbook, I got it the yesterday and within seconds of opening it I could see that it had very limited screen tilt, like barely past 90 degrees. This just isn't comfortable for me and I was genrally disappointed with the build quality in general so I wanted to send it back, I thought I had 7 days to return it.

So I tried to return it and this is the response I got:

Thank You for your email, unfortunately as the manufacturers seal has been broken and due to software licensing we would be unable to accept the item for refund.
Current legislation does not permit the return of opened items which contain licensed software.

Bare in mind this is a preloaded netbook there is no physical software included with it at all, it hasn't even been turned on and I can't return it? Surely I can't be stuck with it. I paid with a credit card, do you think they might be able to sort something out for me?

Ask them to clarify on the legislation that applies here for a start.... If they can't they don't have much of a case IMO

nas · 19 May 2011 at 11:13

NeoNemesis said:
Distance Selling Act applies here I think

http://www.oft.gov.uk/about-the-oft/legal-powers/legal/distance-selling-regulations/

sufficient tilt & build quality are both subjective though

what is ''current legislation''? seems abit wishy washy.

shroomz · 19 May 2011 at 11:16

Ask them for this "current legislation", if they can't produce it, return under DSR
edit- beaten.

Cuchulain · 19 May 2011 at 11:18

nas said:
sufficient tilt & build quality are both subjective though

what is ''current legislation''? seems abit wishy washy.

Current legislation say's that you can return the item within 7 days of purchasing, doesn't matter why you want to return it. The company also has refund the postage/packing that you paid to have it delivered, however unless it's faulty you have to pay the return postage.

Myshra · 19 May 2011 at 11:21

Can't you bite them thanks to licensed software coming with an End User License Agreement which you can reject?

GinG · 19 May 2011 at 11:23

Depends on the price you paid and what expectations you had of it.

The tilt however, if you are unable to use it as you would with any other notebook, surly it isn't fit for the purpose it was intended for?

Cuchulain · 19 May 2011 at 11:23

Myshra said:
Can't you bite them thanks to licensed software coming with an End User License Agreement which you can reject?

He doesn't need to, Distance Selling regs' are very clear on the matter.

http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf

Cuchulain · 19 May 2011 at 11:24

GinG said:
Depends on the price you paid and what expectations you had of it.

The tilt however, if you are unable to use it as you would with any other notebook, surly it isn't fit for the purpose it was intended for?

It doesn't matter if it's fit for purpose, he has a statutory right to cancel and return the item within 7 days of receiving it, for ANY reason.

nas · 19 May 2011 at 11:27

Under a distance selling contract, a supplier cannot make refunds subject to the goods being returned unopened in their original packaging. One of the principles of the distance selling regulations is to give you a chance to examine the goods at home, not having had a chance to do so in the shop. It would be impossible for you to do this without opening the packaging and trying the product out. Having said this, you will still be under a duty to take reasonable care of the goods while in your possession, and may be subject to certain instructions such as not to wear shoes outdoors, or remove hygiene seals. But you can never be penalised simply because you did not return the goods in their original packaging.

http://whatconsumer.co.uk/returns-and-refunds/

Recovery of sums paid by or on behalf of the consumer on cancellation, and return of security14.—(1) On the cancellation of a contract under regulation 10, the supplier shall reimburse any sum paid by or on behalf of the consumer under or in relation to the contract to the person by whom it was made free of any charge, less any charge made in accordance with paragraph (5).

(5) Subject to paragraphs (6) and (7), the supplier may make a charge, not exceeding the direct costs of recovering any goods supplied under the contract, where a term of the contract provides that the consumer must return any goods supplied if he cancels the contract under regulation 10 but the consumer does not comply with this provision or returns the goods at the expense of the supplier.

(6) Paragraph (5) shall not apply where—(a)the consumer cancels in circumstances where he has the right to reject the goods under a term of the contract, including a term implied by virtue of any enactment, or(b)the term requiring the consumer to return any goods supplied if he cancels the contract is an “unfair term” within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999(1)

http://www.legislation.gov.uk/uksi/2000/2334/contents/made

NeoNemesis · 19 May 2011 at 11:29

Case closed. Nice one nas

Bigsy · 19 May 2011 at 11:52

Thanks guys, I've just asked them to state the particular legislation they are claiming prevents me getting a refund.

See what they say.

FNGsam · 19 May 2011 at 11:53

OCUK standing up for the little guys!

Bigsy · 19 May 2011 at 11:59

Cuchulain said:
He doesn't need to, Distance Selling regs' are very clear on the matter.

http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf

Interesting under section 3.38 (page 23) it states I can't cancel if:

* audio or video recordings or computer software that the customer
has unsealed

This is obviously what they are trying use against me, but there is no software to "unseal"? It's a preloaded laptop it has no disks and the laptop hasnt even been turned on.

Hmm I can see this being a bit of a fight.....

Al Vallario · 19 May 2011 at 11:59

Bigsy said:
Thanks guys, I've just asked them to state the particular legislation they are claiming prevents me getting a refund.

See what they say.

Unfortunately you do not have a leg to stand on and the retailer is correct.

Those citing the Distance Selling Regulations are wrong. Software, along with many other items, are exempted from the legislation for obvious reasons.

The relevant legislation is Regulation 13 of The Consumer Protection (Distance Selling) Regulations 2000:

Exceptions to the right to cancel

13.—(1) Unless the parties have agreed otherwise, the consumer will not have the right to cancel the contract by giving notice of cancellation pursuant to regulation 10 in respect of contracts—

(a)for the supply of services if the supplier has complied with regulation 8(3) and performance of the contract has begun with the consumer’s agreement before the end of the cancellation period applicable under regulation 12;

(b)for the supply of goods or services the price of which is dependent on fluctuations in the financial market which cannot be controlled by the supplier;

(c)for the supply of goods made to the consumer’s specifications or clearly personalised or which by reason of their nature cannot be returned or are liable to deteriorate or expire rapidly;

(d)for the supply of audio or video recordings or computer software if they are unsealed by the consumer;

(e)for the supply of newspapers, periodicals or magazines; or

(f)for gaming, betting or lottery services.

Edit: Just re-read the OP and realised it's a netbook you're returning, not just software.

In that case the law is ambiguous; common sense suggests they should be willing to accept the return for a partial refund, but given the software aspect I would not expect a full refund.

Lamo · 19 May 2011 at 12:03

Surley if it is pre-loaded windows then this is OEM and is tied to the machine and can't be used else where so there is not really a problem.

FNGsam · 19 May 2011 at 12:05

Al Vallario said:
Unfortunately you do not have a leg to stand on and the retailer is correct.

Those citing the Distance Selling Regulations are wrong. Software, along with many other items, are exempted from the legislation for obvious reasons.

The relevant legislation is Regulation 13 of The Consumer Protection (Distance Selling) Regulations 2000:

Exceptions to the right to cancel

13.—(1) Unless the parties have agreed otherwise, the consumer will not have the right to cancel the contract by giving notice of cancellation pursuant to regulation 10 in respect of contracts—

(a)for the supply of services if the supplier has complied with regulation 8(3) and performance of the contract has begun with the consumer’s agreement before the end of the cancellation period applicable under regulation 12;

(b)for the supply of goods or services the price of which is dependent on fluctuations in the financial market which cannot be controlled by the supplier;

(c)for the supply of goods made to the consumer’s specifications or clearly personalised or which by reason of their nature cannot be returned or are liable to deteriorate or expire rapidly;

(d)for the supply of audio or video recordings or computer software if they are unsealed by the consumer;

(e)for the supply of newspapers, periodicals or magazines; or

(f)for gaming, betting or lottery services.

Click to expand...

If this is true and there is nowhere on the site showing limited tilt from where you bought surely this is rather unfair on the consumer...

nas · 19 May 2011 at 12:06

Al Vallario said:
Unfortunately you do not have a leg to stand on and the retailer is correct.

Those citing the Distance Selling Regulations are wrong. Software, along with many other items, are exempted from the legislation for obvious reasons.

The relevant legislation is Regulation 13 of The Consumer Protection (Distance Selling) Regulations 2000:

its a netbook though, rather than a CD with xyz on it.