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

Cuchulain · 19 May 2011 at 12:07

If the OEM software was preinstalled, the distance selling regs still apply, if he opened the CD, installed it himself then they cannot refuse to take the laptop back but they can refuse to refund him the cost of the OEM software.

Bigsy · 19 May 2011 at 12:07

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?

Al Vallario · 19 May 2011 at 12:11

Cuchulain said:
If the OEM software was preinstalled, the distance selling regs still apply, if he opened the CD, installed it himself then they cannot refuse to take the laptop back but they can refuse to refund him the cost of the OEM software.

See my edit; although the law is ambiguous I predict this (a partial refund) will be the likely outcome for the OP

Cuchulain · 19 May 2011 at 12:12

Al Vallario said:
See my edit; although the law is ambiguous I predict this (a partial refund) will be the likely outcome for the OP

Actually, if the retailer abides by the DSR's then a full refund + original postage will be the likely outcome, if they don't, then a quick phone call to trading standards is in order.

NeoNemesis · 19 May 2011 at 12:18

I completely disagree on the software point. The laptop has not been powered on, the software has never been used. No Windows or pre-installed software licenses have been consumed.

Gishee · 19 May 2011 at 12:24

NeoNemesis said:
No Windows or pre-installed software licenses have been consumed.

But there will be sure enough a license key on the bottom on the machine, which he could potentially write down then activate a second machine with by using the activate by telephone service

ThomasTheTankEngine · 19 May 2011 at 12:25

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:

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.

Well if the do continue to reject his claim based on this law, can't he just say he didn't agree with the EULA and return it based on that?

NeoNemesis · 19 May 2011 at 12:38

Gishee said:
But there will be sure enough a license key on the bottom on the machine, which he could potentially write down then activate a second machine with by using the activate by telephone service

That would be piracy, and illegal and not relevant to the argument. You could do the same thing by looking at the bottom of any laptop you come across, families, friends, in a shop...

Amleto · 19 May 2011 at 12:43

jimbob27 said:
Well if the do continue to reject his claim based on this law, can't he just say he didn't agree with the EULA and return it based on that?

I don't think rejecting a eula gives you any right to return items. It just means you can't use the thing.

The customer (OP) has not unsealed any software. Therefore the (r)etailers have no recourse to ignore a return under DSR.

Al Vallario · 19 May 2011 at 13:37

NeoNemesis said:
That would be piracy, and illegal and not relevant to the argument. You could do the same thing by looking at the bottom of any laptop you come across, families, friends, in a shop...

Amleto said:
The customer (OP) has not unsealed any software. Therefore the (r)etailers have no recourse to ignore a return under DSR.

The use of the term 'unsealing' in the legislation is clearly ambiguous, but I wouldn't interpret it as referring only to physically unsealing software.

Regardless of licensing, the software exception may also be in place because without it consumers could purchase software, use it for some purpose then return it. This is presumably the reason that the return of unsealed audio or video recordings is excepted (i.e. people could exploit retailers and use them as audio/video rental companies).

In the case of operating systems this reasoning is less apparent (i.e. the use of operating systems is not time-sensitive; one does not simply install one, derive some value from it, then uninstall it and return it to the retailer) but it still applies.

Bigsy · 19 May 2011 at 14:00

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.

Wyrdo · 19 May 2011 at 14:09

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

So the store isn't going to budge?

Rroff · 19 May 2011 at 14:11

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.

Bigsy · 19 May 2011 at 14:16

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 · 19 May 2011 at 14:21

Rroff said:
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.

Bes · 19 May 2011 at 14:24

Cuchulain said:
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.

Wrong Does not always apply. There are certainly exceptions, but that is why the OP needs to check what they are.

Rroff · 19 May 2011 at 14:32

Yeah its the software licensing thats the issue here as its an exception from the DSR and part of the product purchased, but theres a definite grey area with computers some will argue that unpacking the laptop/notebook constitutes unsealing the software too.

EDIT: Well I have it on fairly good authority (from the guy that deals with this at work) that they should accept the laptop back aslong as the software has not been activated, if the software has been registered and or activated they should still accept it back but may be able to charge you a fee for the restoration of that software to its original condition (tho under some conditions if the software has been activated they have the right to refuse a refund on the basis its not "as new").

Bigsy · 19 May 2011 at 17:42

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.

Al Vallario · 19 May 2011 at 21:34

Bigsy said:
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.

There's some terrible advice being bounded about here. Neither Section 75 (holding your credit card company liable for purchases between £100 and £30,000 when a retailer goes bust, goods never turn up, etc.) nor the requirement that goods be "fit for purpose" apply in this instance. The netbook is, as you describe it, perfectly fit for purpose, you've just changed your mind.

Regulation 13 of Distance Selling Regulations is your recourse with the retailer, and it's a grey area as has been described already.

If I were you, I would set my hopes on a partial refund (i.e. a full refund minus a nominal fee for the software aspect of the contract), although politely pushing the retailer might secure a full refund out of good will. Getting shirty with the retailer isn't going to do you any good.

nas · 19 May 2011 at 22:34

Bigsy said:
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).

agree with the above here, this sorta goes back to my earlier post.

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

so the SGA wont be applicable to you, to explain this, quoting the relevant parts.

(1)This section applies if—

(a)the buyer deals as consumer or, in Scotland, there is a consumer contract in which the buyer is a consumer, and

(b)the goods do not conform to the contract of sale at the time of delivery.

you satisfy part A

you do not satisfy part B

(2)If this section applies, the buyer has the right—

(a)under and in accordance with section 48B below, to require the seller to
repair or replace the goods, or

(b)under and in accordance with section 48C below—

(i)to require the seller to reduce the purchase price of the goods to the buyer by an appropriate amount, or

(ii)to rescind the contract with regard to the goods in question.

because you do not fall within the scope of part A, this rule wont work.

http://www.legislation.gov.uk/ukpga/1979/54

So back to what i was initially saying...
it can work both ways but think this might be the best route, again picking out what’s relevant.

10.—(1) Subject to regulation 13,

which is...

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; (you’re within the cancellation period)

(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; (its a laptop)

(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; (custom laptop?)

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

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

(f)for gaming, betting or lottery services.

So the only grey area is whether its made to your specification....

if within the cancellation period set out in regulations 11 and 12, the consumer gives a notice of cancellation to the supplier, or any other person previously notified by the supplier to the consumer as a person to whom notice of cancellation may be given, the notice of cancellation shall operate to cancel the contract

the cancellation period for GOODS is 7 days.

(2) Where the supplier complies with regulation 8, the cancellation period ends on the expiry of the period of seven working days beginning with the day after the day on which the consumer receives the goods.

(reg 8 is information the supplier has supplied)

its possible for you to fall within reg 13, its within the cancellation period, so now you need to fall within regulation 10 for ‘recovery of sums paid’

Recovery of sums paid by or on behalf of the consumer on cancellation, and return of security

14.—(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).

10.—(1) Subject to regulation 13, if within the cancellation period set out in regulations 11 and 12, the consumer gives a notice of cancellation to the supplier, or any other person previously notified by the supplier to the consumer as a person to whom notice of cancellation may be given, the notice of cancellation shall operate to cancel the contract.

(2) Except as otherwise provided by these Regulations, the effect of a notice of cancellation is that the contract shall be treated as if it had not been made.

(3) For the purposes of these Regulations, a notice of cancellation is a notice in writing or in another durable medium available and accessible to the supplier (or to the other person to whom it is given) which, however expressed, indicates the intention of the consumer to cancel the contract.

(4) A notice of cancellation given under this regulation by a consumer to a supplier or other person is to be treated as having been properly given if the consumer—

(a)leaves it at the address last known to the consumer and addressed to the supplier or other person by name (in which case it is to be taken to have been given on the day on which it was left);

(b)sends it by post to the address last known to the consumer and addressed to the supplier or other person by name (in which case, it is to be taken to have been given on the day on which it was posted);

(c)sends it by facsimile to the business facsimile number last known to the consumer (in which case it is to be taken to have been given on the day on which it is sent); or

(d)sends it by electronic mail, to the business electronic mail address last known to the consumer (in which case it is to be taken to have been given on the day on which it is sent).

(5) Where a consumer gives a notice in accordance with paragraph

(4)(a) or

(b) to a supplier who is a body corporate or a partnership, the notice is to be treated as having been properly given if—

(a)in the case of a body corporate, it is left at the address of, or sent to, the secretary or clerk of that body; or

(b)in the case of a partnership, it is left with or sent to a partner or a person
having control or management of the partnership business.

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

so, in effect, it ‘appears’ that provided you give notice, you are able to return the goods. Guess you have to see how they respond...