Distance selling on games console inc game download

CheekyMonkey68

Hi I bought onlne from GAME an XBox one s with 2 games included, I want to return to GAME store for refund within the 14 days of receipt for full refund. One of the games is in the form of a download which I then received by email as a code for download from xbox live. I have not used this code or unsealed the console box and other game box. Under the 2015 regs for downloads do I have the right to return the bundle for full refund. It did not say on the website that this was an email code download, or if it came within the sealed box delivered a few days later, and the receipt I received was for £199.99 when I paid £229.99 as my card statement shows. several calls and emails later they reluctantly agreed to send me a screen shot pdf of the purchase showing the full amount paid, with a value against the download, although this was not a proper invoice or receipt. I have tried to raise complaint online and said I wish to cancel my contract. Basically I have said I want to buy a better package at a higher price but they have not replied in 2 days. any advice please, for my sons Christmas present! Thanks in advance

85_East

‘If you supply downloads or streaming services, you must:

get the customer to confirm before they download or stream content that they are aware they’ll lose their 14 day right to cancel
get the customer to agree to an instant download before they start the download
include this information in your confirmation of the contract, along with the other pre-contract information
If you don’t follow these rules, the customer will keep their 14 day right to cancel without paying.‘

85_East

Sorry, posted the above by mistake and now can’t seem to edit the post on my mobile. It was a quote from https://www.gov.uk/online-and-distance-selling-for-businesses/online-selling

Basically it appears that you need to be made aware that you agree to loose your rights if you download. If they haven’t made you aware of this then you still retain rights under the distance selling regulations.
I would check the Terms and Conditions to see if any mention is made. You have also only received an email, not started the download presumably so I would argue that you have a right to cancel for a refund

CheekyMonkey68

Thanks 85 East
In the email they sent me with the download codes the day after I ordered bundle, there is a link showing the terms below which state:

You will need to create either a Silver or Gold Xbox LIVE account before you can redeem your code.
Once you have completed your purchase of an Xbox LIVE download, we cannot issue a refund as receiving an activation email is the equivalent of opening a physical box.

So it looks like they are saying that because within my purchase bundle, one of the games is in the form of an emailed download code, as I have received the code and can see it I am deemed to have used the code and therefore they will not refund me under the 14 day distance regs, are they allowed to do this?
Many thanks

DoaM

Did you create the account?
Did you redeem the code?

CheekyMonkey68

No to both.

We may have had an xbox live acc a few years ago for an old xbox 360, but not used for years or paid for any subscription, and would not remember the password! so dont think relevant to this?

DoaM

Their 2nd term will be what they're relying on, as it infers that them sending the email with a code means you've waived any rights to a refund.

HOWEVER ... if that term wasn't presented at the time of sale then they cannot introduce new terms after the contract is formed.

85_East

From Games terms https://www.game.co.uk/webapp/wcs/stores/servlet/mHubArticleView?hubId=757830&articleId=757831&catalogId=10201&langId=44&storeId=10151&merchname=mobile-_-footer-_-#tab2?mobileFlag=true
‘You may cancel your order up to fourteen (14) days after delivery of the order to you. Except that, orders for digital downloads cannot be cancelled once the download has started. This does not apply for Microsoft Digital Credit which may be returned in line and according to our Returns and Refunds policy.’

It doesn’t make any mention of not refunding once the email has been sent, so it would appear that you can get a refund on it. As DoaM says they can’t introduce new terms after purchase