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

the_lunatic_is_in_my_head

RefluentBeans said:

1. I offer the following 'customisations' to the jumper: the default size is small and in orange. But they can 'upgrade' to a larger size and to a different colour. I, in my terms, say that this is customised - so not refundable. 

Guidance says that the wording of the limit should be interpreted narrowly, the example above is more one of "special order" rather than customised, etc.

If I sell silver and black iPhones and you ask for one in rose gold the fact I don't sell that colour doesn't mean it meets the limit because rose gold is commonly available and it's just something ordered in that's not on the shelf rather than being made to a certain specification. 

If you asked for a 24 carat gold plated phone and the retailer took a normal phone and had it plated that would most likely meet the limit but if they simply purchased it from a place commonly selling these then it wouldn't.

If you ask for one plated in bronze or copper it's likely that is something that is going to have to be done specially for you and would meet the limit. 

The guidance says for the limit to be met the goods should be unique.

A 1 TB iPhone is obviously not an example of the limit but a request for an iPhone with another TB added to make it 2 would (currently) be.  

However if options, regardless of how obscure, are offered by the retailer this doesn't meet the limit. 

Generally it should be straight forward, a grey area may be if you buy a team football shirt and have a name printed on the back where you type it in a box rather than pick from a dropdown. 

If you type "John" that shirt as been made to your specifications but there are likely to be plenty of people called John supporting big teams so is it unique? Does it meet the limit? (Something only a court is going to answer). 

I may have missed it, but I haven't seen OP say how this extra memory was added, the limit would only apply if the memory in the machine wasn't one that comes out the factory and was asked for rather than chosen from options. 

Of course it doesn't matter in a case where the goods do not conform to the contract  

RefluentBeans

the_lunatic_is_in_my_head said:

RefluentBeans said:

1. I offer the following 'customisations' to the jumper: the default size is small and in orange. But they can 'upgrade' to a larger size and to a different colour. I, in my terms, say that this is customised - so not refundable. 

Guidance says that the wording of the limit should be interpreted narrowly, the example above is more one of "special order" rather than customised, etc.

If I sell silver and black iPhones and you ask for one in rose gold the fact I don't sell that colour doesn't mean it meets the limit because rose gold is commonly available and it's just something ordered in that's not on the shelf rather than being made to a certain specification. 

If you asked for a 24 carat gold plated phone and the retailer took a normal phone and had it plated that would most likely meet the limit but if they simply purchased it from a place commonly sell these then it wouldn't.

If you ask for one plated in bronze or copper it's likely that is something that is going to have to be done specially for you and would meet the limit. 

The guidance says for the limit to met the goods should be unique.

A 1 TB iPhone is obviously not an example of the limit but a request for an iPhone with another TB added to make it 2 would (currently) be.  

However if options, regardless of how obscure, are offered by the retailer this doesn't meet the limit. 

Generally it should be straight forward, a grey area may be if you buy a team football shirt and have a name printed on the back where you type it in a box rather than pick from a dropdown. 

If you type "John" that shirt as been made to your specifications but there are likely to be plenty of people called John supporting big teams so is it unique? Does it meet the limit? (Something only a court is going to answer). 

I may have missed it, but I haven't seen OP say how this extra memory was added, the limit would only apply if the memory in the machine wasn't one that comes out the factory and was asked for rather than chosen from options. 

Of course it doesn't matter in a case where the goods do not conform to the contract  

To clarify - Apple does not allow for ‘custom’ upgrades to customers. Apple produce SKU’s with a set amount of memory (RAM), CPU cores and GPU cores, all on the same die package - which is then soldered to the motherboard by Apple. This means that there cannot be easily upgraded components to the laptop - as this would require desoldering the packet, successful removal of a component, transplanting a new component and successful resoldering to the board. The ‘components’ also aren’t officially available and from what I’ve seen, don’t really exist much in the grey market (where the factories that produce the components for Apple sell excess to consumers, like with screens). 

These Macs are not custom built by Apple. The argument is invalid. If it’s not a regular stock item (which appears to be your argument here, but they specifically mention bespoke in their terms), and they don’t want to hold the stock, that shouldn’t invalidate rights. This isn’t a custom product, and so doesn’t make the 14 day cooling off period invalid. 

the_lunatic_is_in_my_head

RefluentBeans said:

the_lunatic_is_in_my_head said:

RefluentBeans said:

1. I offer the following 'customisations' to the jumper: the default size is small and in orange. But they can 'upgrade' to a larger size and to a different colour. I, in my terms, say that this is customised - so not refundable. 

Guidance says that the wording of the limit should be interpreted narrowly, the example above is more one of "special order" rather than customised, etc.

If I sell silver and black iPhones and you ask for one in rose gold the fact I don't sell that colour doesn't mean it meets the limit because rose gold is commonly available and it's just something ordered in that's not on the shelf rather than being made to a certain specification. 

If you asked for a 24 carat gold plated phone and the retailer took a normal phone and had it plated that would most likely meet the limit but if they simply purchased it from a place commonly sell these then it wouldn't.

If you ask for one plated in bronze or copper it's likely that is something that is going to have to be done specially for you and would meet the limit. 

The guidance says for the limit to met the goods should be unique.

A 1 TB iPhone is obviously not an example of the limit but a request for an iPhone with another TB added to make it 2 would (currently) be.  

However if options, regardless of how obscure, are offered by the retailer this doesn't meet the limit. 

Generally it should be straight forward, a grey area may be if you buy a team football shirt and have a name printed on the back where you type it in a box rather than pick from a dropdown. 

If you type "John" that shirt as been made to your specifications but there are likely to be plenty of people called John supporting big teams so is it unique? Does it meet the limit? (Something only a court is going to answer). 

I may have missed it, but I haven't seen OP say how this extra memory was added, the limit would only apply if the memory in the machine wasn't one that comes out the factory and was asked for rather than chosen from options. 

Of course it doesn't matter in a case where the goods do not conform to the contract  

To clarify - Apple does not allow for ‘custom’ upgrades to customers. Apple produce SKU’s with a set amount of memory (RAM), CPU cores and GPU cores, all on the same die package - which is then soldered to the motherboard by Apple. This means that there cannot be easily upgraded components to the laptop - as this would require desoldering the packet, successful removal of a component, transplanting a new component and successful resoldering to the board. The ‘components’ also aren’t officially available and from what I’ve seen, don’t really exist much in the grey market (where the factories that produce the components for Apple sell excess to consumers, like with screens). 

These Macs are not custom built by Apple. The argument is invalid. If it’s not a regular stock item (which appears to be your argument here, but they specifically mention bespoke in their terms), and they don’t want to hold the stock, that shouldn’t invalidate rights. This isn’t a custom product, and so doesn’t make the 14 day cooling off period invalid. 

I don't really have an argument Rather trying to cover every scenario and whether it would meet the limit on not.

So if you sell a 1TB iPhone, I ask you for a 2TB and you agree, regardless of the complications mentioned (or reality as it's a hypothetical to create an example) that would meet the limit with no cancellation rights assuming you don't have a pre set option for 2 TB.  

From what you've said about how Apple products work it's highly unlikely OP's purchase is going meet the limit (meaning the right of cancellation would apply).  

[Deleted User]

msnatalie said:

[Deleted User] said:

Their insistence that the item is customised and waives your rights is bull. If you had had it engraved with your name, painted a specific colour, keys made from unicorn bones, and so on, that would be considered bespoke. What you have is an off the shelf product with some upgrades, none of which would prevent the item being sold to somebody else.

RefluentBeans said:

100% agree with this. The customisation argument is not even legally grey to me - it’s just unlawful. I would cancel the contest personally.

Even with the clause in their terms and conditions that 'configured to order macs do not benefit from the 'cooling-off’ period...' does that not cover them there and so not allow me to cancel the contract? As adding the extra memory is classed by them as configured to order. Although that should have no bearing on my consumer rights in this case as it arrived damage, if they would just honor that. But initially that is the part of the terms that they referred me to as to why they were refusing to refund or replace. 

…

Thank you all for your replies, I really appreciate it, I will be contacting my bank tomorrow to start a chargeback, hoping the reseller won't reject that or make it difficult.

They’re abusing the rules covering bespoke items, such as made to measure curtains, personalised clothing or jewellery, which cannot be returned. Unless faulty. 

No way would choosing more memory for a Mac (from the retailers own list of options) make it bespoke. Going back to your original question, do their terms null your rights? No. They could add a clause saying no returns for anything and no repairs after two weeks, which would be illegal. And I’ve seen a fair number of retailers (even national retailers) with unfair and sometimes illegal terms and conditions, so it’s better to be aware of the actual laws around these things rather than a retailer’s interpretation. 

My take is they’ve had to buy the item from Apple, at their reseller rates, and now don’t want to be ‘out of pocket’ themselves and holding stock they don’t want. I see from Trustpilot they’ve got previous form. Hopefully, your bank will be of help. Keep things concise: your legal rights are being infringed, you’re rejecting the goods and exercising your given right to cancel within 14 days. You don’t even need to specify a reason why, according to the law. That’s all you need to say on the matter. If they want a reason, you have one; the item arrived scuffed, suggesting that it might be used and is not what you ordered.

Getting a chargeback initiated should focus their minds, since retailers get charged a penalty on top of the refund. 

msnatalie

the_lunatic_is_in_my_head said:

I may have missed it, but I haven't seen OP say how this extra memory was added, the limit would only apply if the memory in the machine wasn't one that comes out the factory and was asked for rather than chosen from options. 

Of course it doesn't matter in a case where the goods do not conform to the contract  

On their page on the site when ordering the Macbook Pro it gives various different options to choose from, such as 32GB of RAM (the standard comes with 16gb) and Drive Capacity of 1tb (the standard comes with 512mb) at extra cost. After clicking these options it does state that "This is a configured-to-order Mac. Bespoke items are excluded from our normal returns and cancellation policy.". Which I knew and was fine with, I wanted the extra memory, I also wanted and thought I was going to get a pristine new Macbook without any marks on it.

This is the page I ordered from https://www.krcs.co.uk/macbook-pro-14-inch-m2-pro-10-core-cpu-16-core-gpu-16gb-512gb-space-grey-67w

Thank you all for the input, I agree that their term and conditions around customisation seem to be quite abusing the laws, but as I assume I agreed to them when placing the order I'm not sure I could do anything about it.

The latest email I sent I received an out of office response, so I am going to be starting a chargeback. This is all such a pain and stress I can see how these companies get away with it as I imagine most people wouldn't be bothered to chase and just accept a violation of their rights.

tightauldgit

msnatalie said:

the_lunatic_is_in_my_head said:

I may have missed it, but I haven't seen OP say how this extra memory was added, the limit would only apply if the memory in the machine wasn't one that comes out the factory and was asked for rather than chosen from options. 

Of course it doesn't matter in a case where the goods do not conform to the contract  

On their page on the site when ordering the Macbook Pro it gives various different options to choose from, such as 32GB of RAM (the standard comes with 16gb) and Drive Capacity of 1tb (the standard comes with 512mb) at extra cost. After clicking these options it does state that "This is a configured-to-order Mac. Bespoke items are excluded from our normal returns and cancellation policy.". Which I knew and was fine with, I wanted the extra memory, I also wanted and thought I was going to get a pristine new Macbook without any marks on it.

This is the page I ordered from https://www.krcs.co.uk/macbook-pro-14-inch-m2-pro-10-core-cpu-16-core-gpu-16gb-512gb-space-grey-67w

Thank you all for the input, I agree that their term and conditions around customisation seem to be quite abusing the laws, but as I assume I agreed to them when placing the order I'm not sure I could do anything about it.

The latest email I sent I received an out of office response, so I am going to be starting a chargeback. This is all such a pain and stress I can see how these companies get away with it as I imagine most people wouldn't be bothered to chase and just accept a violation of their rights.

Configured to order is not the same as bespoke products for the purposes of the CRA and in any case you aren't making a change of mind return so it doesn't apply. You are claiming the product doesn't conform and in that case even if it's been configured to only work with your unique DNA it doesn't matter you still have the right to reject the goods.