Does an online sellers own terms invalidate the consumer rights act?

msnatalie

I am hoping someone can help.
I bought a new Macbook from an Apple authorised reseller online, with a debit card. It arrived with cosmetic damage, a scuff mark on the under casing. I took a photo, and I sent it back immediately, they agreed there was a mark on the casing. But now have said they have 'cleaned' it off and is fine and want to send it back me to.
They say I am not entitled to a refund or replacement as their terms state the Macbook I got is not eligible for it as it was customised with extra memory.

However, it arrived damaged, doesn't the consumer rights act protect me here? As there was a problem with the goods when I bought them?

I have asked for a refund or replacement as I paid for a new laptop not a repaired one, they are refusing and saying they will only send this one back as it's now 'good as new'. But I paid for new and not 'good as new', am I being unreasonable here? This is a years worth of savings
Any help? I've spoken directly to Apple, who have confirmed that new Macbooks should come with no marks whatsoever, and that they would class even a fingerprint as cosmetic damage but that they cannot do anything as they aren't the point of purchase.

Thanks

user1977

If it had a scuff mark and it no longer has a scuff mark, what's the current problem with it?

Okell

msnatalie said:

... They say I am not entitled to a refund or replacement as their terms state the Macbook I got is not eligible for it as it was customised with extra memory.

However, it arrived damaged, doesn't the consumer rights act protect me here? As there was a problem with the goods when I bought them?...

It depends.

If they are saying it doesn't comply because "it was customised", it sounds as if they were treating your return as a cancellation under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (legislation.gov.uk).

Whether they are correct in saying that depends.  Goods that have been "personalised" or have been built to the consumer's "own specifications" are exempt from the right to cancel, but just because something has been "customised" doesn't mean it has been personalised or built to your specification.

When you returned the macbook what did you tell the seller you were doing?  Cancelling the contrcat under the regs quoted above or were you returning it because you considered it was delivered to you in a damaged state? 

How long after buying it did you return it?  If within 30 days did you tell them you were exercising the short-term right to reject under the legislation?  (NB - I'm not sugesting that a cosmetic scuff mark warrants rejection - I'm just asking what you actually did.)

And in answer to the question in your thread title - no, a retailer's own T&Cs cannot overrirde your statutory rights, but you need to know what those rights are...

born_again

Retailer has the right to repair, replace or refund. Their choice. They have chosen repair.
Lets face it they could have said they have replaced & simply sent the same one back with the scuff mark, buffed out. At least they have been honest.

RefluentBeans

I’m not sure if you can count cosmetic damage as a fault - but others can weigh in on that. 

You say an authorised reseller - can you confirm if this is a retailer, or a reseller? We’re you buying the product as new or like new? To me, a reseller buys products and services them. The authorised part means it’s up to Apples quality. If that’s the case, then I would expect that there are some minor cosmetic imperfections, but a scuff that appears to be removed fairly easily doesn’t seem like that. 

Secondly - I personally wouldn’t consider selecting a pre-made SKU as personalisation (in the same way engraving would be). So I don’t think they can invalidate your rights by stating personalisation. Personalisation is a valid reason for not accepting online returns (your right to cancel within 14 days), but does not invalidate your CRA. 

Personally, I would say that the cosmetic damage isn’t sufficient to lead to a CRA cancellation, especially as cleaning it off appears to have resolved it. To me that isn’t a fault. But I would expect you’d be able to cancel your item under the distance selling regs as I don’t think this is sufficiently personalised. 

So I would check that the condition was new (ie from Apple directly) and not like new (ie still in original condition but box opened etc), and take it from there. 

screech_78

Who exactly did you purchase it from? 

the_lunatic_is_in_my_head

born_again said:

Retailer has the right to repair, replace or refund. Their choice. They have chosen repair.
Lets face it they could have said they have replaced & simply sent the same one back with the scuff mark, buffed out. At least they have been honest.

30 day right to reject applies as OP sent it back "immediately"  

RefluentBeans said:

I’m not sure if you can count cosmetic damage as a fault - but others can weigh in on that. 

https://www.legislation.gov.uk/ukpga/2015/15/section/9/enacted

(2)The quality of goods is satisfactory if they meet the standard that a reasonable person would consider satisfactory,

(3)The quality of goods includes their state and condition; and the following aspects (among others) are in appropriate cases aspects of the quality of goods—

(a)fitness for all the purposes for which goods of that kind are usually supplied;

(b)appearance and finish;

(c)freedom from minor defects;

(d)safety;

(e)durability.

Lawn mower with a scuff probably fine as most people wouldn't notice/care and it's going to get scuffed when you use it anyway, Apple product at that price which has accessories available to prevent such damage people probably would care and find it unsatisfactory.   

msnatalie

RefluentBeans said:

You say an authorised reseller - can you confirm if this is a retailer, or a reseller? We’re you buying the product as new or like new?

They are their own retailer but are under the apple authorised reseller umbrella, I found them via the Apple website. I was buying the product as new. I had asked them, and they said it comes brand new from the Apple factory in China, same as buying from Apple.

RefluentBeans said:

Secondly - I personally wouldn’t consider selecting a pre-made SKU as personalisation (in the same way engraving would be). So I don’t think they can invalidate your rights by stating personalisation. Personalisation is a valid reason for not accepting online returns (your right to cancel within 14 days), but does not invalidate your CRA. 

In their terms they do state that 'Configured to order Macs do not benefit from the 'cooling-off’ period or ‘late delivery’ policy' which is why I wondered if that part invalidates the consumer rights act. Although later on it the terms it does state
"The Consumer Rights Act 2015 gives consumers 30 days from delivery to notify **** of any problems with delivered goods to be able to receive a full refund for goods of unsatisfactory quality or not as described, but we will try to go above and beyond these rights wherever possible. " but when I questioned them on it they said it doesnt count as its customised.

RefluentBeans said:

Personally, I would say that the cosmetic damage isn’t sufficient to lead to a CRA cancellation,

  As another forumite commented, I do find it of unsatisfactory quality, especially at that price point, I had already bought a skin for the laptop to put on immediately so that it wouldnt get any marks or scratches. Also that Apple confirmed it shouldn't come with even a fingerprint on it. Make me question the integrity of the build.

msnatalie

Okell said:

When you returned the macbook what did you tell the seller you were doing?  Cancelling the contrcat under the regs quoted above or were you returning it because you considered it was delivered to you in a damaged state? 

I said "If I had ordered directed from Apple I would return it for an undamaged model, as even though it is just a scuff mark, for something of that price and brand new it shouldn't come with marks. ", they then agreed to a replacement, and changed their mind.

Okell said:

How long after buying it did you return it?  If within 30 days did you tell them you were exercising the short-term right to reject under the legislation?  (NB - I'm not sugesting that a cosmetic scuff mark warrants rejection - I'm just asking what you actually did.)

It was returned within 3 days of delivery, I received it Friday afternoon and they collected it the following Tuesday morning.

Okell said:

If they are saying it doesn't comply because "it was customised", it sounds as if they were treating your return as a cancellation under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013

Whether they are correct in saying that depends.  Goods that have been "personalised" or have been built to the consumer's "own specifications" are exempt from the right to cancel, but just because something has been "customised" doesn't mean it has been personalised or built to your specification.

This is the part that is confusing me, it was built to the customer specifications rather than personalised, but no more than you could on the official Apple store. Just adding extra memory. But regardless of this, even with that in their term, if the item arrives with cosmetic damage doesnt the consumer rights law 2015 come into effect despite that?

the_lunatic_is_in_my_head

msnatalie said:

In their terms they do state that 'Configured to order Macs do not benefit from the 'cooling-off’ period or ‘late delivery’ policy' which is why I wondered if that part invalidates the consumer rights act. Although later on it the terms it does state
"The Consumer Rights Act 2015 gives consumers 30 days from delivery to notify KRCS of any problems with delivered goods to be able to receive a full refund for goods of unsatisfactory quality or not as described, but we will try to go above and beyond these rights wherever possible. " but when I questioned them on it they said it doesnt count as its customised.

Ask them to quote the part of the Consumer Rights Act they think covers this, they'll have a hard time.

I would advise them you are exercising the short term right to reject and are entitled to a full refund (assuming you don't want the MacBook back). 

@born_again might comment on the success of a chargeback here given the goods have been returned. 

msnatalie

the_lunatic_is_in_my_head said:

https://www.legislation.gov.uk/ukpga/2015/15/section/9/enacted

(2)The quality of goods is satisfactory if they meet the standard that a reasonable person would consider satisfactory,

(3)The quality of goods includes their state and condition; and the following aspects (among others) are in appropriate cases aspects of the quality of goods—

(a)fitness for all the purposes for which goods of that kind are usually supplied;

(b)appearance and finish;

(c)freedom from minor defects;

(d)safety;

(e)durability.

Lawn mower with a scuff probably fine as most people wouldn't notice/care and it's going to get scuffed when you use it anyway, Apple product at that price which has accessories available to prevent such damage people probably would care and find it unsatisfactory.   

Thank you for this! Yes, I infact had even bought a macbook skin to protect it from scratches and marks before it arrived. Also that Apple confirmed it should come pristine and without a mark made me think I would have some rights.