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

[Bigsy]

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?

 

[Bigsy]

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

See what they say.

 

[Bigsy]

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.....

 

[Bigsy]

THERE IS NO SEALED SOFTWARE TO UNSEAL. ITS A PRELOADED NETBOOK, NO DISKS.

Sorry to shout but people seem to keep missing this point.

Everything has software on these days, how is this any different from say a mobile phone?

 

[Bigsy]

I don't understand how it could be enforced like that, under those conditions a retailer could argue that nearly all electronics come with some form of software on them, thus would be unreturnable because opening the electronics box is considered the same as "unsealing" software.

I've just opened a claim with consumers direct so I'll see what they about it.

 

[Bigsy]

Well they have gone quiet, so far they have answered my emails within 5 mins until they sent the last one which basically said to do one, not heard anything from them all day, tried calling at dinner but couldn't get through.

Still...I basically want to know where I stand completely, as at the moment I sense my exchange with them will probably be just arguing the toss over an interpretation of a slightly gray area.

 

[Bigsy]

Unfortunatly it will be a complicated one partly due to the software product key often being on the bottom of the laptop and some come with a sticker/seal on the box/packaging that relates to the licensing.

IIRC from work we aren't oblidged to accept laptops/netbooks back under DSR in these circumstances but we (and most larger retailers) do as it saves a lot of hassle, I'm not really sure on the law on it tho.

I see the issue, but as the law doesn't actually make any exception for this specific scenario so don't see how it can be unforced like that.

 

[Bigsy]

Thanks Rroff, I've now also had a few people suggest I should be able to return it under section 75 sales of good act (not fit for purpose). Still nothing concrete mind...

They have however managed to ignore me all day, one last email then I'm going to have to go to my credit card and see what they can do.

 

[Bigsy]

Thanks nas, but I queried them again about return under DSR, this is their response this morning:

Unless you have agreed that they can, your consumers cannot cancel
if the order is for:

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

This laptop contains computer software, Windows 7 Home Premium, which by opening the packaging has been unsealed and the licence activated.

No movement from them, feel they're really bending this law too far to try and fit this scenario.

What can I do now? Is there anyway to escalate this?

Also just to be clear this is not OcUK, they didn't stock this netbook, its the today only place.

 

[Bigsy]

Well for the benefit of anyone in a similar position, at least consumer direct agree with me, I'll post their take on it below (note, I am waiting on the online shops reply to this at present, before carrying out their advice)

Dear Mr X,

Thank you for your enquiry to Consumer Direct. Your reference number for this case is XXXXXXX and should be quoted in all further correspondence regarding this case.

The key legal points in response to your enquiry are as follows:

With reference to your enquiry, the relevant regulations that apply are the Consumer Protection (Distance Selling) Regulations 2000. These regulations provide cancellation rights where goods are ordered over the internet, telephone or by mail order. These rights provide a cancellation period of 7 working days from the day after the goods are delivered or the paperwork for the service has been received. You need to make your intention to cancel known within this time period.

When cancelling under these regulations, the refund must be processed within 30 days. This refund should include the cost of the item and the original postage. The cost of return postage will depend upon the terms and conditions.

Although software is an exemption once the seal has been broken, this would relate to items such as compact discs where there is potential for you to copy the software. An item would not become exempt just because there is pre loaded software.

Under such circumstances, it would usually be wise to write a recorded letter to the trader. You should make time of essence for the refund to arrive within the 30 day period. You will ask the seller to inform you of the correct returns process. You Make sure that you keep a copy of all correspondence for your records. You will find a template at the following link:

https://consumer-tools.direct.gov.uk/consumer-advice/template_letters/dsr_letter/

In addition, because you purchased the item on your credit card, you may also be able to argue under section 75 of the Consumer Credit Act 1974. This legislation will make your credit card company jointly and severally liable for any breach of contract. For this reason, you may wish to inform the credit card company of this problem in case you need to recover costs from them at any stage. You will find a template letter for this at:

www.consumerdirect.gov.uk/after_you_buy/making-complaint/template-letters/consumer_credit/

Please note: We here at Consumer Direct will always endeavour to give our best legal and practical advice, but in the end it is only the courts that can decide what your rights are and if the company/trader won’t give you what you feel you are entitled to, the only way to enforce your rights would be through the courts (although this is rarely necessary).

If you do not receive a satisfactory response and you require any further advice or information about this case, please do not hesitate to contact Consumer Direct on 08454 04 05 06 quoting the case reference number.

Thank you for your enquiry.

Alan Dix

Consumer Direct

 

[Bigsy]

The online shop have finally issued me with an automated RMA email.

I won't hold my breath for an apology, but hay ho... case closed I guess.