Distance Selling & Electronic delivery

Devalin

Hi,

After some advice please.

I pre-ordered a game from Direct2drive.co.uk a website that sells digital copies of games that you can download rather than having to get a boxed version, but you are still purchasing a product, and in this case it actually costs more than the shop version because its a "digital delux" version (apparantly ).

The actual game doesnt come out until February.

As part of the offer you receive a key (code) entitling you to access to the "open beta" (test) of the game, these keys are readily available on many websites and i already had one, so i have no used the key that they sent to me when i pre-ordered. Note this is not the final game code, you dont get that until the game launches.

Their site states non-refunds but given their site is designed to cover many regions i assumed this was overridden by local consumer laws as appropriate.


I would like to cancel the order and obtain a refund under the 7 day cooling off period, they have refused based on the sole fact that they issued a pre-order key and they have a no-refund policy.

I mentioned to them i have no used the key and invited them to test that, but they said they cant.


Do i have grounds for a refund under distance selling, or because they sent me a pre-order incentive (which i've offered to return, ie the key) am i not allowed a refund ?


thanks for reading this

System

I don't think you will get far as both Direct2drive.co.uk and it's parent company are US based.

Does DSR apply to foreign companies?

Devalin

I think so, since they pay vat, and their using a .co.uk domain and charging in sterling.

Also they do "sort of" acknowledge distance selling regs in their terms, if only to try and say once you press download you cant get a refund.

tomterm8

Devalin wrote: »

Hi,

After some advice please.

I pre-ordered a game from Direct2drive.co.uk a website that sells digital copies of games that you can download rather than having to get a boxed version, but you are still purchasing a product, and in this case it actually costs more than the shop version because its a "digital delux" version (apparantly ).

The actual game doesnt come out until February.

As part of the offer you receive a key (code) entitling you to access to the "open beta" (test) of the game, these keys are readily available on many websites and i already had one, so i have no used the key that they sent to me when i pre-ordered. Note this is not the final game code, you dont get that until the game launches.

Their site states non-refunds but given their site is designed to cover many regions i assumed this was overridden by local consumer laws as appropriate.


I would like to cancel the order and obtain a refund under the 7 day cooling off period, they have refused based on the sole fact that they issued a pre-order key and they have a no-refund policy.

I mentioned to them i have no used the key and invited them to test that, but they said they cant.


Do i have grounds for a refund under distance selling, or because they sent me a pre-order incentive (which i've offered to return, ie the key) am i not allowed a refund ?


thanks for reading this

Yes, you are entitled to a refund under the distance selling regs:

Town
City
Postcode
DATE HERE
Company Name
Road
Town
City / County
Postcode

Account Number: XXXXXXX

Dear Sirs

Letter before action in accordance with the civil procedure rules 1998
Action to be brought under the Distance Selling Regulations SI 2000 No. 2334

With regard to the above account, I note that you have refused to refund money after a request for refund on DATE, within 7 days of the receipt of all goods applicable under the contact. With regard to the reasons you gave, you stated that you had included a ‘no-refund’ policy within your website.

In accordance with the civil procedure rules 1998 which are available at http://www.justice.gov.uk/civil/procrules_fin/menus/rules.htm I am required to explain the basis of my claim prior to taking legal action. Unless you answer this complaint within 28 days, I intend to bring a small claims action against your company.

For your information, I refer you to http://www.opsi.gov.uk/si/si2000/20002334.htm which contains the distance selling regulations which I intend to rely on in court.

I note that under s25 of the regulations, the regulations void any contractual term contrary to the requirements to refund under the regulations

25. - (1) A term contained in any contract to which these Regulations apply is void if, and to the extent that, it is inconsistent with a provision for the protection of the consumer contained in these Regulations.

This means any term on your web site stating you will not refund money if required under the distance selling regulations is void.


S10 of those regulations states that I have the right to cancel up to 7 days after I receive the goods provided for in the contact.

The only exception that might apply is that I would not be entitled to cancel the contact if the goods had been unsealed (in accordance with s13(d). Since I have not unsealed any goods, I believe such an exception does not apply in this case. Further, I believe the content of your web site, claiming that I do not have a right to refund, is contrary to s7 and s8 of the regulations, with the effect of extending my right of refund for a substantial period.


I note that under s14 of the regulations, you are required to refund the money paid, as I have requested.


Failure to do so may result in a complaint to the office of fair trading, and further legal action. This may very well result in extra costs.

Yours Sincerly,
XXXX

By registered post.

neilmcl

This taken from their own terms:

EU Customers. If you reside in the European Union and you purchase a Product the Consumer Protection (Distance Selling) Regulations 2000 may apply, and you may have the right to withdraw from your purchase within fourteen calendar days, commencing on the day after the date of purchase (the "Cooling Off Period"). You will lose your right of withdrawal if you start downloading your product, or if the performance of our services has begun (such as if the Product activation key has been disclosed to you), before the end of the Cooling Off Period. Please note that if you purchase services from us, the performance of our services will begin immediately after you have received our purchase confirmation email. To withdraw from your purchase within the Cooling Off Period, please contact Customer Service. If you withdraw from your purchase within the Cooling Off Period, we will provide you with a refund for your purchase.

Devalin

neilmcl wrote: »

This taken from their own terms:

This forms part of my question.

The actual product is not yet available, the download button is greyed out and says "not available yet".

All i've downloaded is a beta client that was an incentive, available from many sources (not all requiring any purchase).

I havent even used "their" incentive, the key they gave me i didnt touch, so in my view the goods are still "shrink wrapped".

Tozer

tomterm8 wrote: »

Yes, you are entitled to a refund under the distance selling regs:

Town
City
Postcode
DATE HERE
Company Name
Road
Town
City / County
Postcode

Account Number: XXXXXXX

Dear Sirs

Letter before action in accordance with the civil procedure rules 1998
Action to be brought under the Distance Selling Regulations SI 2000 No. 2334

With regard to the above account, I note that you have refused to refund money after a request for refund on DATE, within 7 days of the receipt of all goods applicable under the contact. With regard to the reasons you gave, you stated that you had included a ‘no-refund’ policy within your website.

In accordance with the civil procedure rules 1998 which are available at http://www.justice.gov.uk/civil/procrules_fin/menus/rules.htm I am required to explain the basis of my claim prior to taking legal action. Unless you answer this complaint within 28 days, I intend to bring a small claims action against your company.

For your information, I refer you to http://www.opsi.gov.uk/si/si2000/20002334.htm which contains the distance selling regulations which I intend to rely on in court.

I note that under s25 of the regulations, the regulations void any contractual term contrary to the requirements to refund under the regulations

25. - (1) A term contained in any contract to which these Regulations apply is void if, and to the extent that, it is inconsistent with a provision for the protection of the consumer contained in these Regulations.

This means any term on your web site stating you will not refund money if required under the distance selling regulations is void.


S10 of those regulations states that I have the right to cancel up to 7 days after I receive the goods provided for in the contact.

The only exception that might apply is that I would not be entitled to cancel the contact if the goods had been unsealed (in accordance with s13(d). Since I have not unsealed any goods, I believe such an exception does not apply in this case. Further, I believe the content of your web site, claiming that I do not have a right to refund, is contrary to s7 and s8 of the regulations, with the effect of extending my right of refund for a substantial period.


I note that under s14 of the regulations, you are required to refund the money paid, as I have requested.


Failure to do so may result in a complaint to the office of fair trading, and further legal action. This may very well result in extra costs.

Yours Sincerly,
XXXX

By registered post.

Laws of California apply.....

OFT has no jurisdiction.

Suing an overseas company is MASSIVELY expensive.

Oh, and there is no pre-action protocol applicable so no need to give 28 days notice.