Online company is refusing to cancel my order for a bike

huskie69

I placed an order for a new ebike on 11th April.  The bike was going to be my primary mode of transport for a new job and I needed it quite quickly.  Delivery was estimated to be 3-4 weeks when I placed the order.

On the 4th May I chased the company for an update on my order.  They responded saying that I could expect to receive early June.   As I couldn't afford to wait that long (and made alternative arrangements) I asked for the order to be cancelled.

Email transcripts below (TLDR; They're refusing to cancel my order on the grounds that my order is customised)

On Wed, 4 May 2022 at 15:28, Huskie wrote:

Hi Jane, just wondering if there's any update on my order - any Eta?

Many thanks, 

Huskie .

On 5 May 2022 12:41,  Bike <hello@awkwardbikecompany.com> wrote:

Hi Huskie, Sincere apologies for the delay in getting your  bike to you
Upon checking your order, we can see that your delivery date is estimated at the beginning of June.
We will be sending out a newsletter today regarding the slight delay
Best wishes,
Jane

On Fri, 6 May 2022 at 14:40, Huskie wrote:

Hi Jane,
Unfortunately I can't afford to wait much longer - was hoping to have it within the 3-4 weeks as advertised.  
I will have to cancel my order and source an alternative.
Thanks,
Huskie.

On 9 May 2022 09:07,  Bike <hello@awkwardbikecompany.com> wrote:

Hi Huskie ,
We are so sorry to hear this.
Let us double check on our side to see if we are able to push your order forward to be delivered by next week.
We will be in touch with you shortly.
Best wishes,
Jane

On Mon, 9 May 2022 at 14:30, Huskie wrote:

Hi Jane,
As I've already had to make alternative arrangements, I'd like to proceed with the cancellation.
Thanks,
Huskie.

On 9 May 2022 14:49,  Bike <hello@awkwardbikecompany.com> wrote:

Hi Huskie,
We are sorry you wish to continue with the cancellation.
Unfortunately, we are unable to accept your return request as each  bike is made to order with different upgrades installed at the point of purchase, and we can see your order is already in production.
Great news! We just heard back from the factory, we are able to dispatch your  bike this week to you and would like to include a free throttle for you.  
Best wishes,
Jane

On Mon, 9 May 2022 at 16:06, Huskie wrote:

Hi Jane, under the UK distance selling regulations I have every right to cancel my order, from the date of purchase and up to 14 days after it has been received.  
As it's not been received yet, it would be better for all of us if the cancellation is processed immediately, rather than us having to go through the hassle of returns etc once its been delivered.   
I don't want to be "one of those customers", I was really looking forward to receiving my  bike - however my priorities were to make my commute shorter for my new job - and as the time frame for delivery from point of order was not met - I had to make alternative arrangements to ensure I could get to my new office.
Thanks,
Huskie.

On 10 May 2022 12:26,  Bike <hello@awkwardbikecompany.com> wrote:

Hi Huskie,
That is correct.  If you have ordered a  bike with no customisation/upgrades, then we are able to process your refund request.
Any customisation/upgrades orders are not eligible for a refund as it is a custom order.
Hope this makes sense Huskie.
Best wishes,
Jane

On Tue, 10 May 2022 at 12:43, Huskie wrote:

Hi Jane,
Your own terms and conditions make no mention of the fact that an order placed with any additional extras is excluded from any cancellation process.  Nothing in my order has been adapted or customised, or tailored - they are all standard options for purchase.  Regardless, this would not supercede my statutory rights unless I had signed a waiver.  I don't recall such a step during the order process.
I'd therefore, once again, request that my order is cancelled.
Thank you. 

On Tue, 10 May 2022 at 12:43, Huskie wrote:

Hi Jane,
Your own terms and conditions make no mention of the fact that an order placed with any additional extras is excluded from any cancellation process.  Nothing in my order has been adapted or customised, or tailored - they are all standard options for purchase.  Regardless, this would not supercede my statutory rights unless I had signed a waiver.  I don't recall such a step during the order process.
I'd therefore, once again, request that my order is cancelled.
Thank you.  

On 11/05/2022 15:31,  Bike <hello@awkwardbikecompany.com>  wrote:

Hi Huskie,
We have submitted a case on your behalf regarding the refund request to management for review.
As soon as we get a confirmation we will let you know Huskie.
Best wishes,
Jane

On Mon, 16 May 2022 at 13:13, Huskie wrote:

Hi Jane,
Please can I have an update on the progress of my order cancellation.
Thank you.
Huskie.   

On 17 May 2022 08:00,  Bike <hello@awkwardbikecompany.com> wrote:

Hi Huskie,
We have received an update today from the submitted case.
The case has been rejected due to the same reason given prior. Any order with customisations/modified added is considered as a custom order
Best wishes,
Jane 

"Customisation" options are as follows:

In my opinion, there are no customisations here - I did not request a specific and bespoke alteration to my order, everyone who places an order is presented with these same options.  For someone who builds bike, I know that these "upgrades" are merely bolt on additions/replacements, there is no effort involved in replacing them from the base model.  There is no mention in their polices on what is actually considered "customised".

2. If you have simply changed your mind- consumers only
If you have changed your mind and want to return products after you have paid for them in full, you can return them to us for a full refund within 14 days (excluding delivery fees and cost of shipping unless the product is faulty) from the date you receive the Products provided you return the Products them in their original condition.  Please see below for what we mean by ‘original condition.’

You will not be able to return any products to us that have been specially made, adapted or customised for you where you have simply changed your mind. 

Please note we do not accept returns after the 14-day period specified above for unwanted products.

https://www.waubike.com/pages/delivery-returns

What are my options here?  And how should I proceed?  The bike has yet to be delivered and they actually state they have a 14-day full money back guarantee

Payment has already been setup with Klarna who will be taking the first payment in the next few days.

shiraz99

You are correct, selecting optional extras from a drop down list doesn't itself make an item entirely made to your specification or personalised and therefore distance selling rules, under the CCRs, apply. If the seller wont budge, assuming they are a UK seller, then your normal route would be to send a LBA followed by a small claims. The slight complication here is your use of Klarna to pay for the item, and as I don't know much about how this works I'll leave this for others to comment. There may be a chance you can halt payment via Klarna but you'll have to check their T&Cs.

shiraz99

There is guidance for business available that addresses the issue regarding what is considered "bespoke" or "customised" goods, maybe you should point them in the direction of the following https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/429300/bis-13-1368-consumer-contracts-information-cancellation-and-additional-payments-regulations-guidance.pdf

huskie69

shiraz99 said:

You are correct, selecting optional extras from a drop down list doesn't itself make an item entirely made to your specification or personalised and therefore distance selling rules, under the CCRs, apply. If the seller wont budge, assuming they are a UK seller, then your normal route would be to send a LBA followed by a small claims. The slight complication here is your use of Klarna to pay for the item, and as I don't know much about how this works I'll leave this for others to comment. There may be a chance you can halt payment via Klarna but you'll have to check their T&Cs.

Thanks - my request is now being sent to management for a "second-review" - will see how this turns out!

pinkshoes

I would also contact Klarna and say that the order has been cancelled as they did not deliver it within their promised deadline.

Is this definitely a UK company?

redped

A quick google for the text shown on the "customisation" page links to https://www.waubike.com/products/wau-x who are a UK company - their details are at https://www.waubike.com/pages/terms-conditions

Edit: Just noticed there's a link to https://www.waubike.com/pages/delivery-returns listed in an earlier reply

Money_Grabber13579

Is it as clear cut that if a product is made up from a list of standard products, then it isn’t a customised product? I’ve been reading through the guide posted earlier and it doesn’t seem quite so clear cut to me.

There is a part which sets out the policy for the exclusion, which is as follows:

Items made to a particular, often unique specification are exempt from cancellation rights on the basis that a trader might otherwise be left with a product so specific to a particular consumer’s needs that there is no other market for it once the consumer has cancelled the contract.

There is a later example of a sofa, which is not considered customised if the consumer has chosen, say, black leather from a list of options. That makes sense because a black leather sofa is unlikely to be a unique product and so it’s likely that there would be other customers willing to buy it (which follows the above policy).  

However, if the customisation option list is extensive, it seems (to me) much more likely that there might not be any other market for the final product, meaning that it could be considered customised (again, based on the above policy). For example, is there another market for a computer where a customer has chosen, from a standard list of options, a specific hard drive, memory, power supply, video card, software, sound card, card reader etc, potentially leading to a highly specialised system, which has a combination of features that nobody else would want?

The advice is often provided that if the product is constructed from a list of options, it’s not customised but I do wonder if that has ever been tested and confirmed?

MalMonroe

Hi, buying online or from a distance gives you better protection, as per the govt. link - 

https://www.gov.uk/accepting-returns-and-giving-refunds

That's 14 days after you've received the item, which you haven't as yet. So they can't say that they haven't had the appropriate notice. Not only that, their original delivery schedule appears to have gone a bit awry and they are supposed to advise you of any delays, according to their own website (links as per redped's comment, above) but you have had to chase them.

I can see why they are saying it's customised - because not all bike users will want the same specifications as you. I've just ordered an office chair with a couple of personal requirements and received an acknowledgement with a note saying that I won't be able to cancel as it's a 'customised order'. But I don't believe that anyway since it's a distance order. I paid by credit card so if there's any trouble I'll just apply for a Section 75. But Klarna says "All returns are subject to the retailer’s return policy. If you have a specific concern or dispute, contact Klarna’s customer service." So you can just let them know, if the second review doesn't work out. I hope it does.

I have to say that I wish I could ride a bike like that - I can't even ride a 'normal' one properly!

user1977

MalMonroe said:

I can see why they are saying it's customised - because not all bike users will want the same specifications as you. 

In this case though it seems to be only a charger (which I presume is a completely separate item, not fitted to the bike), and a couple of other things which can be easily removed and used for another customer (and the same principle would apply to the PC component example above). It's not e.g. something engraved with your name, which is obviously going to be difficult to make "new" for anybody else.

Manxman_in_exile

The law doesn't talk about "customised" items.

The law says that goods made "to the consumer's specifications or [which] are clearly personalised" are exempt from the right to cancel which otherwise applies to distance sales.

I'd suggest that goods are only "clearly personalised" if they have something like the consumer's name or initials (or other "personal" information) engraved on, or printed on, or otherwise apparent on the goods.

I'd similarly suggest that goods can only be made to the "consumer's specifications" if those specifications can only be supplied by, or originate from, the consumer.  (eg measurements supplied by the consumer for a bespoke piece of furniture - measurements that the trader cannot know without the consumer specifying them).

Simply selecting from a range of available options supplied by the trader cannot, by definition, be the same as providing your own specifications.  If the trader was offering to provide goods to the consumer's own specifications, the trader would not need to provide a range of options to choose from in the first place.

That's the argument the OP needs to put to the trader.

The relevant law is here - s 28(1)(b):  The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk)

Subsequent ss 29 - 32 cover the right to cancel/withdraw itself and the cancellation period.

[EDIT:  You will probably need to emphasise to them that you are relying on your statutory consumer rights as provided in the legislation I link to above, and NOT upon any returns or cancellation policy in their own T&C.

You also need to point out to them that (1) selecting between two optional ranges and (2) selecting from five "upgrades" can't really qualify as being made to your specifications.  You are just selecting from seven options that they have offered - not that you have specified

Therefore you are entitled to cancel and a full refund.

If they don't agree, come back for more suggestions]

Manxman_in_exile

MalMonroe said:

...I can see why they are saying it's customised - because not all bike users will want the same specifications as you. I've just ordered an office chair with a couple of personal requirements and received an acknowledgement with a note saying that I won't be able to cancel as it's a 'customised order'. But I don't believe that anyway since it's a distance order....

?????????