What are my rights regarding a faulty overseas purchase and potential chargebacks?

Manxman_in_exile

It doesn't matter where it's made.  What matters is what country's laws govern the purchase contract.  If you buy from a Dutch website it's almost certainly governed by Dutch law.

Where you live isn't relevant!

(You really need to check the T&Cs... )

screech_78

ghostlyc said:

screech_78 said:

Consumer Rights Act only applies to purchases made in the UK. You are bound by whatever laws are applicable in the country you purchased from. As a UK forum, it’s unlikely many people will be familiar with what applies in the Netherlands. 

Oh I'm sorry, I totally neglected to include this in my post, but I'm from and located in the UK. So, to confirm, even though the bike came from the Netherlands, being in the UK means that I am covered by the CRA?

Where you’re located isn’t relevant. Your applicable rights are the country you bought from. I understand you live in the UK however you purchased from a company based in The Netherlands, therefore your purchase is bound by those laws. You would have to read up on those laws as I’m afraid I have no idea. 

ghostlyc

Manxman_in_exile said:

I don't think the first bit you quoted means what you think it means.

It is saying that the relevant EU Directive giving consumers certain legal protections is implemented into UK law by the Consumer Rights Act 2015.  (Basically what it's saying is that Brexit hasn't affected UK consumer rights).

It doesn't say which equivalent bit of legislation (or whatever) implements the same EU Directive into Dutch law.

Because you have bought online from a Dutch retailer (and their website is presumably hosted in the NL) then it is almost 100% certain that your purchase is governed by Dutch law and not UK law.

In whichever way the EU Directive has been incorporated into Dutch law, it's probably very similar or identical to UK law because it's basically implementing the same protections.  But if it's Dutch law, it's enforceable by courts in the NL, not by courts in the UK.  That is the problem you have if you can't get a refund from the retailer and a chargeback fails - or is sucessfully challenged by the retailer.  You have no legally enforceable rights in the UK.

I don't think the second bit you quote is relevant either.  You are looking for a term that says something like "any disputes in relation to this contract shall be governed according to Dutch law (or whatever)".  What you've quoted is about purchasers being responsible for ensuring bikes they've bought are legal in the country they'll be used in.

You're right - I think I've gotten confused with some of these terms.

I searched through the T&Cs again, and I think I've found the relevant point now:

16.6 Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE NETHERLANDS.

So yeah, I think my request to return the bike under the 30 days allowed by the CRA will just be thoroughly laughed at.

I also found this, which I thought was weird. It's all very much outside of my general understanding, but it seems per the T&Cs, I've waived the right to legal action, and any disputes require some sort of arbitration process?

15. Dispute Resolution.

Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with (RETAILER), its parent companies, subsidiaries, affiliates, successors and assigns and all of their respective officers, directors, employees, agents, and representatives (collectively, the “(RETAILER) Parties”) and limits the manner in which you can seek relief from the (RETAILER) Parties.

15.1 Applicability of Arbitration Agreement. You agree that any dispute between you and any of the (RETAILER) Parties relating in any way to the Services, the Products, or this Agreement, will be resolved by binding arbitration, rather than in court, except that (1) you and the (RETAILER) Parties may assert individualized claims in small claims court if the claims qualify, remain in such court and advance solely on an individual, non-class basis; and (2) you or the (RETAILER) Parties may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall survive the expiration or termination of this Agreement and shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement. This Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state or local agencies. Such agencies can, if the law allows, seek relief against the (RETAILER) Parties on your behalf.

15.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to (RETAILER). The arbitration will be conducted by (RETAILER).

You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in The Netherlands where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

15.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve all disputes subject to arbitration hereunder including, without limitation, any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement and any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and the (RETAILER) Parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual party under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the (RETAILER) Parties.

15.4 Waiver of Jury Trial. EXCEPT AS SPECIFIED IN SECTION 15.1, YOU AND THE (RETAILER) PARTIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and the (RETAILER) Parties are instead electing that all covered claims and disputes shall be resolved exclusively by arbitration under this Arbitration Agreement, except as specified in Section 15.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

15.5 Waiver of Class or Other Non-Individualized Relief. BY ENTERING INTO THIS ARBITRATION AGREEMENT, YOU AND EACH OF THE (RETAILER) PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ALL CLAIMS AND DISPUTES SUBJECT TO ARBITRATION UNDER THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE OR REPRESENTATIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS SUBJECT TO ARBITRATION UNDER THIS ARBITRATION AGREEMENT, AND CLAIMS OF ONE USER OR PERSON CANNOT BE ARBITRATED OR CONSOLIDATED WITH CLAIMS OF ANY OTHER USER OR PERSON. If applicable law precludes enforcement of any of this Section 15.5’s limitations as to a given claim for relief, then the applicable claim must be severed from the arbitration and may be brought into the state or federal courts located in California in accordance with Section 16.5. All other claims shall be arbitrated.

born_again

ghostlyc said:

powerful_Rogue said:

ghostlyc said:

Hi there,

In early May I bought an e-bike from an online store in the Netherlands (I'm in the UK). It took them a month to ship it to me and when it arrived, the motor was damaged (without going into the details too much, it would be dangerous to ride).

I reached out to the store about two weeks ago to ask about a replacement or refund and they told me that they would speak to the manufacturer of the bike to get a replacement. I've been waiting to hear back now for two weeks, but I've not heard anything.

Am I within my rights to request a full refund, since I'm still within 30 days of receiving the bike? Even though they are seemingly (but not effectively) trying to replace the bike? And do these rights still apply with the bike being sold from overseas?

The retailer's customer service is pretty bad, and I'm pretty sure they will be difficult if I do request a refund, so if they do try to fob me off, is this the kind of thing where I should be trying to make a Visa chargeback with my bank? And if so, do I need to ship the faulty bike back out to them (at my expense) before I can do so?

Sorry for the mountains of questions there, I'm just trying to understand what rights I have. The bike was not cheap, and I'm getting increasingly worried that my 30 days is going to run out and I'll be stuck with an expensive bike I can't use.

Thank you for your time

You'll have to see what the consumer rights are for the Netherlands. If you initiate a chargeback, you would be expected to return the bike at your own expense.

Sorry, I completely forgot to mention it in the original post, but I'm in the UK. So I believe I'm covered by UK consumer law, is that correct?

Manxman_in_exile said:

@ghostlyc -  you've only mentioned chargeback, is a s75 claim ruled out? 

s75 doesn't apply either to debit card purchases or to payment by bank transfer, but does apply to overseas purchases - even if overseas consumer law differs from UK consumer law.  (Or at least that is what I've understood @born_again to say previously about s75 claims).

Also I think that if you win a s75 claim the bike becomes your card issuer's property, so it's probably not your problem getting it back to the NL

Unfortunately, I bought the bike on my debit card (lesson learned on that one), so I don't believe S75 applies, which is a bummer.

born_again said:

Manxman_in_exile said:

@ghostlyc -  you've only mentioned chargeback, is a s75 claim ruled out? 

s75 doesn't apply either to debit card purchases or to payment by bank transfer, but does apply to overseas purchases - even if overseas consumer law differs from UK consumer law.  (Or at least that is what I've understood @born_again to say previously about s75 claims).

Also I think that if you win a s75 claim the bike becomes your card issuer's property, so it's probably not your problem getting it back to the NL

S75 would be OK subject to a CC being used, where purchased from makes no difference. OP not made any mention of payment method though.

Chargeback would require item to be returned at own expense (can't claim it back, only amount debited card) unless you could get something from co saying will not take it back.

I know you do not have to. But have you tried contacting the manufacture with the issue?

If the company declines to give me a refund (assuming it's my legal right to have one), should I send the bike back before issuing the chargeback? Or after it is complete?
I'm just concerned that if I send the bike back and issue the chargeback, but it gets rejected for some reason or another, I no longer have the bike or the money I paid for it.

Thank you for your answers everyone, I appreciate it.

As @Manxman_in_exile

Contact your bank & get their advice. Visa do state that it would need to be returned. Otherwise you are giving the retailer a easy out.

powerful_Rogue

ghostlyc said:

Manxman_in_exile said:

I don't think the first bit you quoted means what you think it means.

It is saying that the relevant EU Directive giving consumers certain legal protections is implemented into UK law by the Consumer Rights Act 2015.  (Basically what it's saying is that Brexit hasn't affected UK consumer rights).

It doesn't say which equivalent bit of legislation (or whatever) implements the same EU Directive into Dutch law.

Because you have bought online from a Dutch retailer (and their website is presumably hosted in the NL) then it is almost 100% certain that your purchase is governed by Dutch law and not UK law.

In whichever way the EU Directive has been incorporated into Dutch law, it's probably very similar or identical to UK law because it's basically implementing the same protections.  But if it's Dutch law, it's enforceable by courts in the NL, not by courts in the UK.  That is the problem you have if you can't get a refund from the retailer and a chargeback fails - or is sucessfully challenged by the retailer.  You have no legally enforceable rights in the UK.

I don't think the second bit you quote is relevant either.  You are looking for a term that says something like "any disputes in relation to this contract shall be governed according to Dutch law (or whatever)".  What you've quoted is about purchasers being responsible for ensuring bikes they've bought are legal in the country they'll be used in.

You're right - I think I've gotten confused with some of these terms.

I searched through the T&Cs again, and I think I've found the relevant point now:

16.6 Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE NETHERLANDS.

So yeah, I think my request to return the bike under the 30 days allowed by the CRA will just be thoroughly laughed at.

I also found this, which I thought was weird. It's all very much outside of my general understanding, but it seems per the T&Cs, I've waived the right to legal action, and any disputes require some sort of arbitration process?

15. Dispute Resolution.

Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with (RETAILER), its parent companies, subsidiaries, affiliates, successors and assigns and all of their respective officers, directors, employees, agents, and representatives (collectively, the “(RETAILER) Parties”) and limits the manner in which you can seek relief from the (RETAILER) Parties.

15.1 Applicability of Arbitration Agreement. You agree that any dispute between you and any of the (RETAILER) Parties relating in any way to the Services, the Products, or this Agreement, will be resolved by binding arbitration, rather than in court, except that (1) you and the (RETAILER) Parties may assert individualized claims in small claims court if the claims qualify, remain in such court and advance solely on an individual, non-class basis; and (2) you or the (RETAILER) Parties may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall survive the expiration or termination of this Agreement and shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement. This Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state or local agencies. Such agencies can, if the law allows, seek relief against the (RETAILER) Parties on your behalf.

15.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to (RETAILER). The arbitration will be conducted by (RETAILER).

You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in The Netherlands where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

15.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve all disputes subject to arbitration hereunder including, without limitation, any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement and any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and the (RETAILER) Parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual party under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the (RETAILER) Parties.

15.4 Waiver of Jury Trial. EXCEPT AS SPECIFIED IN SECTION 15.1, YOU AND THE (RETAILER) PARTIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and the (RETAILER) Parties are instead electing that all covered claims and disputes shall be resolved exclusively by arbitration under this Arbitration Agreement, except as specified in Section 15.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

15.5 Waiver of Class or Other Non-Individualized Relief. BY ENTERING INTO THIS ARBITRATION AGREEMENT, YOU AND EACH OF THE (RETAILER) PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ALL CLAIMS AND DISPUTES SUBJECT TO ARBITRATION UNDER THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE OR REPRESENTATIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS SUBJECT TO ARBITRATION UNDER THIS ARBITRATION AGREEMENT, AND CLAIMS OF ONE USER OR PERSON CANNOT BE ARBITRATED OR CONSOLIDATED WITH CLAIMS OF ANY OTHER USER OR PERSON. If applicable law precludes enforcement of any of this Section 15.5’s limitations as to a given claim for relief, then the applicable claim must be severed from the arbitration and may be brought into the state or federal courts located in California in accordance with Section 16.5. All other claims shall be arbitrated.

Looks like a copy and paste from an American website, as the Federal Arbitration Act  is in the USA. Regardless, T&C's can't take away your legal rights, so if you wish to take them to court in the Netherlands - there is nothing stopping you.

ghostlyc

powerful_Rogue said:

ghostlyc said:

Looks like a copy and paste from an American website, as the Federal Arbitration Act  is in the USA. Regardless, T&C's can't take away your legal rights, so if you wish to take them to court in the Netherlands - there is nothing stopping you.

Ahh, gotcha.

Thank you for help (and your patience) everyone, I appreciate it.

I guess I’ll see how far my conversations go with them, and try the visa debit chargeback route if it comes to it. Hopefully it doesn’t get any more complicated than that.

Manxman_in_exile

@ghostlyc -  further to what @powerful_Rogue has pointed out, I think I'd be inclined to go back to Fatdaddy (or whoever it is) and ask them if they are serious online traders.  Ask them why their T&Cs are contradictory and obviously meaningless.

For example:

"16.5 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Fatdaddy agree that all claims and disputes arising out of or relating to this Agreement that are not brought in a small claims court pursuant to Section 15.1 will be litigated exclusively in the state courts in San Francisco County, California or federal courts located in the Northern District of California.

16.6 Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE NETHERLANDS."

Terms & Conditions | Fatdaddy (ridefatdaddy.com)

It's clearly a daft contradiction that disputes have to be litigated exclusively by courts in California (16.5), but that the law governing the contract is that of the NL (16.6)!

If I were you, I would make this point 100% clear to your bank when you make a claim under chargeback.  I would want to emphasise that the meaningless T&Cs tend to suggest that the trader has no sincere intention of giving consumers appropriate protections.

longjohnjohnson

Manxman_in_exile said:

@ghostlyc -  further to what @powerful_Rogue has pointed out, I think I'd be inclined to go back to Fatdaddy (or whoever it is) and ask them if they are serious online traders.  Ask them why their T&Cs are contradictory and obviously meaningless.

For example:

"16.5 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Fatdaddy agree that all claims and disputes arising out of or relating to this Agreement that are not brought in a small claims court pursuant to Section 15.1 will be litigated exclusively in the state courts in San Francisco County, California or federal courts located in the Northern District of California.

16.6 Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE NETHERLANDS."

Terms & Conditions | Fatdaddy (ridefatdaddy.com)

It's clearly a daft contradiction that disputes have to be litigated exclusively by courts in California (16.5), but that the law governing the contract is that of the NL (16.6)!

If I were you, I would make this point 100% clear to your bank when you make a claim under chargeback.  I would want to emphasise that the meaningless T&Cs tend to suggest that the trader has no sincere intention of giving consumers appropriate protections.

You can have one country's laws litigated in another country's courts.

It's not relevant to the chargeback, and isn't all that relevant to the OP, other than that a plane ticket to LAX is probably a bit more than one to AMS.

Manxman_in_exile

longjohnjohnson said:

Manxman_in_exile said:

@ghostlyc -  further to what @powerful_Rogue has pointed out, I think I'd be inclined to go back to Fatdaddy (or whoever it is) and ask them if they are serious online traders.  Ask them why their T&Cs are contradictory and obviously meaningless.

For example:

"16.5 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Fatdaddy agree that all claims and disputes arising out of or relating to this Agreement that are not brought in a small claims court pursuant to Section 15.1 will be litigated exclusively in the state courts in San Francisco County, California or federal courts located in the Northern District of California.

16.6 Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE NETHERLANDS."

Terms & Conditions | Fatdaddy (ridefatdaddy.com)

It's clearly a daft contradiction that disputes have to be litigated exclusively by courts in California (16.5), but that the law governing the contract is that of the NL (16.6)!

If I were you, I would make this point 100% clear to your bank when you make a claim under chargeback.  I would want to emphasise that the meaningless T&Cs tend to suggest that the trader has no sincere intention of giving consumers appropriate protections.

You can have one country's laws litigated in another country's courts...

Out of interest, have you got any good examples?  I'm not sure I can see a California court agreeing that it had jurisdiction to try a case governed the laws of the NL - regardless of what any contract entered into in the NL might say?

longjohnjohnson said:

Manxman_in_exile said:

@ghostlyc -  further to what @powerful_Rogue has pointed out, I think I'd be inclined to go back to Fatdaddy (or whoever it is) and ask them if they are serious online traders.  Ask them why their T&Cs are contradictory and obviously meaningless.

For example:

"16.5 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Fatdaddy agree that all claims and disputes arising out of or relating to this Agreement that are not brought in a small claims court pursuant to Section 15.1 will be litigated exclusively in the state courts in San Francisco County, California or federal courts located in the Northern District of California.

16.6 Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE NETHERLANDS."

Terms & Conditions | Fatdaddy (ridefatdaddy.com)

It's clearly a daft contradiction that disputes have to be litigated exclusively by courts in California (16.5), but that the law governing the contract is that of the NL (16.6)!

If I were you, I would make this point 100% clear to your bank when you make a claim under chargeback.  I would want to emphasise that the meaningless T&Cs tend to suggest that the trader has no sincere intention of giving consumers appropriate protections.

... It's not relevant to the chargeback, and isn't all that relevant to the OP, ...

True.  But as the OP will only have one bite at a chargeback - and if that fails his only other option will be to sue the trader in the NL (or possibly California  ) - then I'd be inclined to throw in everything that I could that might possibly support my chargeback claim, including the rubbish T&Cs.  The OP doesn't want to be in a position where the claim is rejected and is left thinking "I wish I'd included ... 

(Anyway, from a lot of the chargeback stories on here, I'm not sure bank staff would be able to distinguish relevant from irrelevant information... )

Olinda99

1. your purchase is governed by dutch consumer law

2. google eg 'dutch consumer law online sales' 

this was the first in the search results...


https://business.gov.nl/regulation/long-distance-sales-and-purchases/