Section 75 yes or no?

[Redletter]

Please can anyone verify if section 75 applies to the following;

1) Bought goods over the internet ( aquarium LED unit £1674.99)
2) Opened/inspected/tested the goods
3) Found that the 'single rail hanging kit/cables' were missing
4) Emailed supplier re missing parts
5) Supplier emailed saying they weren't included anymore by the manufacturer despite supplier website and owners manual downloaded from manufacturer website saying they are.
6) Notified supplier I wished to cancel contract (inside 7 days)
7) Supplier quotes his T&C's stating that he is not obliged to give refund as I have 'opened and used' the goods and he is no longer able to sell as new
8) I quote DSR's he claims his t&c's are HIS terms and DSR's don't apply as his t&c's state that package can't be opened!
9) I sent him letter by recorded delivery confirming request to cancel under DSR's
10) supplier again states his position that I must return the goods to h
before he will consider any refund at his discretion.
11) I emailed him OFT guides to dsr's pointing out he has 30 days to give 'unconditional' refund and that I am keeping goods as security until he has discharged the money under his obligations.
12) He emailed back saying "no light no refund"

Quite frankly I do not wish to return the light as I no longer trust him to make a full refund or that he won't deliberately damage the goods and blame me!

Any advise as to what to do next appreciated.

Thanks.

[wales01man]

Re: Section 75 yes or no?

We had an internet business some years ago if a customer wanted to return goods unused whether damaged or not we gave a full refund on receipt of the returned goods and after inspection this was to cover us as some customers never sent goods back or said they were lost in transit and they could not supply proper proof the goods were sent and a couple even send goods back that had been used or the item that they were replacing.
When items were returned we issued a full refund within one working day Remember Tescos and other would not refund you if you did not return the goods the system would then be open to abuse.
Iam not infereing you are one of those i mentioned but having seen it from customer and suppliers side you would be amazed what some will try

[labman]

Re: Section 75 yes or no?

How did you pay for the goods?

[Redletter]

Re: Section 75 yes or no?

How did you pay for the goods?

Cahoot credit card

[Guest]

Re: Section 75 yes or no?

Hi
If you paid the supplier directly by credit card then you would have the protection of the CCA and the card company would be jointly liable for any breach of contract.

He cannot include a term in his terms and conditions that contradicts the dsr's , it is called "opting out" and it is not allowed, he has to abide by statute.

D

[Redletter]

Re: Section 75 yes or no?

Hi
If you paid the supplier directly by credit card then you would have the protection of the CCA and the card company would be jointly liable for any breach of contract.

He cannot include a term in his terms and conditions that contradicts the dsr's , it is called "opting out" and it is not allowed, he has to abide by statute.

D

Thanks so can you verify that I can use Section 75 and on what grounds-as I read somewhere that it does not apply if the consumer "simply changes their mind"?
Would it be classed as breach of contract for the fact he refuses to refund or would I be better claiming that the goods were "not as described/parts missing"?

[Guest]

Re: Section 75 yes or no?

If he has agreed to give the full refund on return and fails you can then claim under section 75, record all deliveries, correspondence, ensure you have a clear paper trail, notice i said payed directly, won't work if you have payed through a third party.

D

[Redletter]

Re: Section 75 yes or no?

We had an internet business some years ago if a customer wanted to return goods unused whether damaged or not we gave a full refund on receipt of the returned goods and after inspection this was to cover us as some customers never sent goods back or said they were lost in transit and they could not supply proper proof the goods were sent and a couple even send goods back that had been used or the item that they were replacing.
When items were returned we issued a full refund within one working day Remember Tescos and other
would not refund you if you did not return the goods the system would then be open to abuse.
Iam not infereing you are one of those i mentioned but having seen it from customer and suppliers side you would be amazed what some will try

Yes but the Distance Selling Regulations require the supplier to an 'unconditional refund' which must be made within 30 days of cancellation regardless. The right to a refund is not linked to the ability of the supplier to be able to sell the goods as new nor does it require that the goods are unopened. In fact the DSR's clearly outline the right of the consumer to inspect and try out the goods. They also state the goods do not even have to be returned in the original packaging.

It's ok saying that there are dodgy people out there who will try and rip off suppliers but all too often this happens in reverse where the suppliers try and deny the consumers rights and mislead them with unfair terms and conditions which would not stand up in court.

I have pointed out to the supplier that if I do not honour my obligation under the DSR's to "take reasonable care of the goods" then he may make a separate claim against me for that breach, but he may not refuse a refund under the DSR's.
The law is the law and he should comply with it.

I have made it perfectly clear that the goods are still in the same packaging and they have not been compromised in any way.
The supplier opened the box before I got it anyway as he had enclosed other items within the box!

[labman]

Re: Section 75 yes or no?

Hi
If you paid the supplier directly by credit card then you would have the protection of the CCA and the card company would be jointly liable for any breach of contract.

He cannot include a term in his terms and conditions that contradicts the dsr's , it is called "opting out" and it is not allowed, he has to abide by statute.

D

Exactly why I asked!

[teaboy2]

Re: Section 75 yes or no?

One issue i must point out here, is the sellers own description of the goods. Regardless of what the manufacturers manual etc states, did the product description on the sellers website state those items were included, if not then although you have 7 days from starting on the day after the goods were received to cancel by written notice of cancellation. Once that period has passed you have no grounds to claim for a refund unless the seller was in breach of the sales of goods act 1979.

If the sellers own website product discription stated those parts were included, then you would have grounds under section 13 of the sales of goods act 1979 which is regarding sales by description. Basically if the items description on the sellers website clearly stated the parts were included, then you would have grounds to claim a refund or take the seller to court if he/she refuses to refund. The same may apply if the seller failed to mention on the product description that the parts were not included or if the description implied that the product could be used in such a way where those parts would have been needed, yet failed to mention that they were not included.

So can you copy and paste the products description as it appears on the sellers website for us to have a look at. That way we can advise you of the best route to take in getting your refund. Could you also copy and paste the sellers terms and conditions here to minus the sellers name and details to avoid the seller being indentified.

For the record, if the products were opened then the seller is well within his rights to refuse to accept returns of non faulty products that have been opened - But only after the 7 day cancellation period under DSR has expired. If still within the cancellation period, then the seller must give a full refund or agree a partial refund taking in to account the deminished value of the goods and/or restocking fee for non faulty products (such restocking fees should be clearly stated in the terms and conditions, must sellers supplier use the fee to cover the cost of repackaging) - If no such terms are stated then they must give you a full refund. Though in this case as the item may not have been as discribed, and possibly in breach of the sales of goods act 1979, then the customer is entitled to a full refund regardless, even if the cancellation period has passed.

[wales01man]

Re: Section 75 yes or no?

I agree with what you say my main point is if the supplier has the goods he should refund you as i stated for example no shop ie tescos would refund you without the goods being returned your entitled in law to the refund no dispute in my opinion but as an ex retailer i would never had refunded without the goods coming back in my case i even refunded the return costs but then thats me
Is this a large retailer or a small one?

[Redletter]

Re: Section 75 yes or no?

One issue i must point out here, is the sellers own description of the goods. Regardless of what the manufacturers manual etc states, did the product description on the sellers website state those items were included, if not then although you have 7 days from starting on the day after the goods were received to cancel by written notice of cancellation. Once that period has passed you have no grounds to claim for a refund unless the seller was in breach of the sales of goods act 1979.

If the sellers own website product discription stated those parts were included, then you would have grounds under section 13 of the sales of goods act 1979 which is regarding sales by description. Basically if the items description on the sellers website clearly stated the parts were included, then you would have grounds to claim a refund or take the seller to court if he/she refuses to refund. The same may apply if the seller failed to mention on the product description that the parts were not included or if the description implied that the product could be used in such a way where those parts would have been needed, yet failed to mention that they were not included.

So can you copy and paste the products description as it appears on the sellers website for us to have a look at. That way we can advise you of the best route to take in getting your refund. Could you also copy and paste the sellers terms and conditions here to minus the sellers name and details to avoid the seller being indentified.

For the record, if the products were opened then the seller is well within his rights to refuse to accept returns of non faulty products that have been opened - But only after the 7 day cancellation period under DSR has expired. If still within the cancellation period, then the seller must give a full refund or agree a partial refund taking in to account the deminished value of the goods and/or restocking fee for non faulty products (such restocking fees should be clearly stated in the terms and conditions, must sellers supplier use the fee to cover the cost of repackaging) - If no such terms are stated then they must give you a full refund. Though in this case as the item may not have been as discribed, and possibly in breach of the sales of goods act 1979, then the customer is entitled to a full refund regardless, even if the cancellation period has passed.

Thanks but with respect, I don't think that is correct.

The DSR's clearly state that the supplier may not include terms and conditions which take away the consumer's statutory right to a FULL and unconditional refund. They may not make ANY deductions for a restocking fee or for repackaging. The consumer is under no obligation to return the items in their original packaging either. The suppliers T&C's cannot override the consumer's statutory rights and the supplier cannot impose conditions.

[Redletter]

Re: Section 75 yes or no?

I agree with what you say my main point is if the supplier has the goods he should refund you as i stated for example no shop ie tescos would refund you without the goods being returned your entitled in law to the refund no dispute in my opinion but as an ex retailer i would never had refunded without the goods coming back in my case i even refunded the return costs but then thats me
Is this a large retailer or a small one?

But this is my point!
The retailer should be aware of the obligation to do the refund regardless of whether or not the goods have been returned.

According to http://www.out-law.com/page-430#Right

"Where the supplier is holding any sum as security, the consumer is not under an obligation to return the goods after cancellation until the supplier discharges any duty on him to release the security under the Regulations"

[Redletter]

Re: Section 75 yes or no?

One issue i must point out here, is the sellers own description of the goods. Regardless of what the manufacturers manual etc states, did the product description on the sellers website state those items were included, if not then although you have 7 days from starting on the day after the goods were received to cancel by written notice of cancellation. Once that period has passed you have no grounds to claim for a refund unless the seller was in breach of the sales of goods act 1979.

If the sellers own website product discription stated those parts were included, then you would have grounds under section 13 of the sales of goods act 1979 which is regarding sales by description. Basically if the items description on the sellers website clearly stated the parts were included, then you would have grounds to claim a refund or take the seller to court if he/she refuses to refund. The same may apply if the seller failed to mention on the product description that the parts were not included or if the description implied that the product could be used in such a way where those parts would have been needed, yet failed to mention that they were not included.

So can you copy and paste the products description as it appears on the sellers website for us to have a look at. That way we can advise you of the best route to take in getting your refund. Could you also copy and paste the sellers terms and conditions here to minus the sellers name and details to avoid the seller being indentified.

For the record, if the products were opened then the seller is well within his rights to refuse to accept returns of non faulty products that have been opened - But only after the 7 day cancellation period under DSR has expired. If still within the cancellation period, then the seller must give a full refund or agree a partial refund taking in to account the deminished value of the goods and/or restocking fee for non faulty products (such restocking fees should be clearly stated in the terms and conditions, must sellers supplier use the fee to cover the cost of repackaging) - If no such terms are stated then they must give you a full refund. Though in this case as the item may not have been as discribed, and possibly in breach of the sales of goods act 1979, then the customer is entitled to a full refund regardless, even if the cancellation period has passed.

Desription copied & pasted from suppliers (shop) website;

EXCLUSIVE FEATURES:

• Fixture's width 12"( 300mm), available lengths 1' (350mm), 2' (650mm), 3' (950mm), 4' (1250mm), 5' (1550mm) and 6' (1850mm).
• Fixture's height; side 1.25"(32mm) / middle 1.77"(45mm).
• Length of cord from fixture to wall plug; 3 meters.
• Body / Heatsink made out of Anodized extruded Aluminum.
• End caps, split box and other plastic pieces made from PC.
• Clear Cover made out of super clear PC rated for up to 125 deg C.
• White LEDs at 7000Kelvin, Blue at 470nm, Royal Blue at 450nm.
• 40W consumption per pad, 16LEDs per pad, 8 White, 4 Blue and 4 Royal blue.
• Expected LEDs life time 60,000 hours at 125 degree core diode temperature (Per Manufacturer).
• One of the highest Lumen maintenance factor available; LM80.
• 80W per foot (300mm) / 32 LEDs per foot (300mm) / 2 modules per foot (300mm).
• Available auxiliary modules for fine color tuning available in RED, Green, and UV.
• Available in 90 270 V / 50 60Hz.
• SilenX fans less than 14dBm noise. Automatic, Always ON and always OFF modes available.
• Supplied with Single row wire hanging Kit.
• Optional Mounting Kit available.
• Meanwell drivers 2 year warranty, certified, UL/ CSA /TUV/PSE/EMC/ETL/GS.
• CE, EMC and RoHs Certified.
• 2 year manufacture warranty.
• Designed by Vertex Aquaristik "Made in Austria".

[Redletter]

Re: Section 75 yes or no?

Thanks but with respect, I don't think that is correct.

The DSR's clearly state that the supplier may not include terms and conditions which take away the consumer's statutory right to a FULL and unconditional refund. They may not make ANY deductions for a restocking fee or for repackaging. The consumer is under no obligation to return the items in their original packaging either. The suppliers T&C's cannot override the consumer's statutory rights and the supplier cannot impose conditions.

Terms & Conditions


Purchase Contract:
This web site is operated by **************. All purchases made on this web site are governed by these Terms and Conditions at any time although the Terms and Conditions governing any given purchase will be those in effect at the date of your order. If you order goods after we have published the changes you will be bound by those changes. Accordingly, you should check prior to each order to ensure that you understand the precise terms and conditions applicable to your purchase. To assist you in determining whether the Terms and Conditions have changed since your most recent order we will display the date when these Terms and Conditions were most recently updated.

We will confirm acceptance of your order. This will occur either by message on the website immediately after you have confirmed your order, or by us sending an e-mail to the email address you have provided to us. We may do both, in which case the acceptance will occur on whichever arrives sooner of the web message and the email. At this point the purchase contract will be made and we will supply the goods to you in accordance with your order and these Terms and Conditions. All goods remain the property of **********until payment is recieved.
Prices:
All prices are in UK Pounds and are inclusive of VAT where applicable, at the current rate. The price of the goods will be as quoted on the web site at the time you confirm your order (usually by clicking the "checkout" button) subject only to any inadvertent technical error for which we will not be liable. If you subsequently amend your order, the prices charged will be those applicable to the amended item(s) at the time that the amended order is confirmed. Please note that as promotions are offered for a limited period of time subsequent amendments to your order may mean that certain promotions are no longer being offered.

The price of the goods does not include a charge for delivery.
Availability:
Although we endeavour to hold stock of all the items advertised for sale on our site this cannot be guaranteed so that by acknowledging receipt of your order we are not creating a binding contract to supply what you have ordered but which we do not have in stock. The content of the site is managed and therefore any products that are out of stock should be highlighted.

In the event of unavailability for whatever reason, we will advise you of our position when we receive your order and we will await your subsequent instructions.
Delivery:
Orders will normally be dispatched within 24 hours. Wherever possible, orders received before noon will be dispatched the same day. Normal postal lead times are: UK destinations 1-3 days, Europe 3-5 days, all other areas worldwide 5-10 days, but please allow up to twenty-one days for delivery. We will always do our best to inform you about any delay.
Returns and exchanges:
We believe you will be delighted with your purchases but there may be occasions when you feel it necessary to return an item. You have the right to cancel the contract for the purchase of any item within seven working days of delivery if product remains unopened and unsed. This applies to all our products. However, we regret that we cannot accept cancellations of contracts for the purchase of products where foodstuffs have been delivered. Please note that you will be responsible for the costs of returning the goods to us unless we delivered the item to you in error.
Warranty and Liability:
Nothing in these Terms and Conditions will restrict our liability for death or personal injury resulting from our negligence, neither will any of these terms restrict any of your statutory rights.

In addition that outlined above we will not be deemed to be in breach of contract or of these Terms and Conditions as a result of any delay in our performance or failure to perform our obligations if that delay or failure to perform is due to any cause or circumstance beyond our reasonable control including, but not limited to, fire, flood and other acts of God, strikes, riot, accident, disruption to energy supplies, civil commotion, acts of terrorism or war.

Other than as set out above, our maximum liability arising out of any order for the supply of goods to you under this contract will be limited to the retail price of the goods contained in that order.

Price Promise:We endeavour to maintain our prices as competitive as possible so we will refund price difference on products if proven by buyer that a product is cheaper from another retail supplier and not an online supplier and that the product is not on special offer or involved in any other offer offered by the supplier which would make product cheaper than otherwise would be.


Note the part which claims that these terms and conditions will not restrict your statutory rights.

I must also point out that, as the supplier failed to provide me with any of the above in 'durable form' at the point of sale or afterwards, none of their terms and conditions can be upheld anyway!