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

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


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

That is simply not true. By opening the package you have NOT unsealed the software. By turning the machine on it could be argued that you have - but you haven't.

The fact that you may have been able to look at the licence key is irrelevant.

THE SOFTWARE HAS NOT BEEN UNSEALED.
 
Unless you are prepared to go through the Court route, then there is not a lot you can do to force the retailer to give you a refund if they won't budge, even if you are entitled to it. :(
 
Could ask them if they accept things like optical CD/DVD burners, monitors and the like back under DSR as these almost always come with bundled software ;)
 
Only option you have is to argue the fact that the software has NOT been "unsealed" (read: to them, activated) as you have not powered the machine on and completed the Windows Activation process. The laptop may as well have fallen out of the packaging en route for all the difference that makes.

Threats of legal action and requests for escalation of your issue may be in order.
 
Bigsy said:
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.
Click to expand...

They'll give you (and I suspect have) DSR advice. Thats all they are, an advice service they won't take the retailer on for you.
 
I'd tend to agree that if you have not switched on the laptop and gone through the install then the software pre installed on the laptop has not been "unsealed". The retailer is in effect considering the "box" the laptop came in to be the container for the netbook and therefore the software. You could argue that for pre installed software the "container" is the laptop itself as unless you switch the laptop on you have no access to the software.

For this argument it would help if any software included on DVD/CD in the box is in sealed envelopes so you can prove you have not accessed them either. If the software in the box is not in sealed envelopes I think you're going to have to live with the larger box being considered the sealing container for the software.

Whilst i can see how they are trying to use the DSR, I think if you can prove the above you would be in a good position. The entire point of the DSR is to allow someone ordering online to be able to inspect goods in the same way they would be able to in a shop. To prevent you from opening a box to gain access to the item you purchased without waiving your rights under the DSR negates the intent of the legislation (although I accept that might in fact be their argument, however unfair).

Was the box itself sealed with a security tag? Is there any warning that once you open the box you waive your rights to return of the item and protection under the DSR.?

I can see where they are coming from, and if you had fired up the notebook, had a play and then asked to return I would agree that although unfortunate, they are being reasonable. In your case where you have not even switched the Netbook on I think they are being a little unreasonable, from a good customer service point of view if not the letter of the law.

I am a little surprised as I've always found their customer service to be exceptionally good, possibly the best for an online technology retailer I've come across.

I should caveat this by adding we don't really have all the details. I'm not suggesting you have for one minute, but for all we know here this could be the 4th Netbook you've had and returned to them this month.

Bottom line is we're not qualified to comment, your best bet I guess is Consumer direct or some other forma of legal advice based on the nuances of the DSR.
 
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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
 
Really disappointing to see them clutching at straws like "you could have removed the hard drive from the laptop, cloned it and then reinstalled it".

Shoddy behaviour from a usually excellent company. :(
 
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.
 
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