Warranty repairs/replacement.. help?

[Hicks12]

Right basically my dad got the HTC sensation when it came out and hes noticed that the bottom part of the screen creaks alot and theres a fair amount of movement when you press it (its as if the case is missing support). Wants to get it replaced, i emailed where i got it from to arrange an RMA and they quickly said as its out of the 7day period he has to go through HTC warranty support, i was under the impression its the first year with the retailer or am i wrong when it comes to mobile phones? I wont name the place but its an online equivilant to carphonewarehouse etc.

Oh also it was bought on the 21st.

So does he need to sort it out with HTC direct or can he get the place to do it? I emailed them back saying that i thought it was with them for the first year and they said no.

[GoNz0]

they handle the warranty direct like a lot of companies, the hard parts going to be you getting a new and not refurb.

[Hicks12]

so he has to go through HTC then? My last encounter wasnt great lol, simple fault took them 6 months to get to a point of understanding the fault but by that time i gave up .

[GoNz0]

phone em and say a refurb or repair will not do due to its age and only just being put in use so the initial debox and inspection did not throw up the issue.

tell them you want a new one sent for a doorstep exchange ASAP.

[Hicks12]

thanks will let him know!

[Saracen]

Remember the 7 days is 7 working days. i.e. excludes weekends and bank holidays.

And that countdown starts the day after you take delivery.

So what's the the 21st? The day it was ordered, or the day it was delivered. If so, count 7 working days, and if within it, notify the cancellation in some permanent form, not by phone, within that period.

This is assuming it was a distance purchase, of course, not something you bought in a shop in person.

Otherwise, the seller is liable for goods that fail to meet the Sale of Goods Act duties, such as satisfactory quality, for up to 6 years. If you find a fault, the question is, did the fault exist when you bought the product, or is it down to something you've done
since? If it existed when you bought it, the seller is liable. If it's something you've done (inappropriate use, dropped in and damaged it, etc) then they aren't.

For 6 months after purchase, the presumption by law is that the item was faulty when sold, unless the seller can prove it was not. And that certainly still applies.

It can get a bit more complex with mobile phones if the "shop" is just an agent for the network, and that 7 day period can be curtailed in the event of services that have commenced before that time, with your permission.

Were it me, I'd be back at the seller, pointing out "7 WORKING days starting the day after delivery", and see what they say next. In any event, get that to them in writing (fax, email, letter, etc) ASAP if you intend to rely on it because phone conversations do not count (usually), and if you let that 7 working days expire, then any DSR rights are gone.


And if they keep on with this "talk to the manufacturer", talk to Trading Standards and/or Consumer direct. If the shop is trying to lie it's way put of it's legal obligations, TS have a habit of prosecuting.


(Note) In case anyone is going to point it out, it might be a lot longer than 7 working days, if the seller has not provided information they MUST provide. Few screw up like that any more, so it's rare for it to apply. But it could be up to 3 months and 7 working days, as a maximum.

[Bunjiweb]

Spot on by Saracan, don't let them ship you off to HTC expecting a repair or refurb. I'd say you should be looking for a replacement phone considering how new it is. Often retailer representatives will tell you what they think they can get away with rather than what they should be taking responsibility for....

Ben

[Hicks12]

thanks for the replies guys,at work at the mo but when I get back ill tell him to talk
to then not HTC or I will. I thought it would be the same as normal things like PC components but with the network thing I didn't know if it changed.

with dsr would he be able to get a new replacement or is dsr specifically effective for a full refund?

[Bunjiweb]

I think with the Distance Selling Regs you should be able to choose a replacement or refund (if they have stock). I don't see how it is any different to any other electrical item, just because he got it as part of a contract, shouldn't mean he has less rights to return what is deemed to be a faulty product.

You just need to be strong & professional when ringing up these people. Make them aware you know about the DSR and SOGA.

Ben

[Behemoth]

Remember the 7 days is 7 working days. i.e. excludes weekends and bank holidays.

And that countdown starts the day after you take delivery.

So what's the the 21st? The day it was ordered, or the day it was delivered. If so, count 7 working days, and if within it, notify the cancellation in some permanent form, not by phone, within that period.

This is assuming it was a distance purchase, of course, not something you bought in a shop in person.

Otherwise, the seller is liable for goods that fail to meet the Sale of Goods Act duties, such as satisfactory quality, for up to 6 years. If you find a fault, the question is, did the fault exist when you bought the product, or is it down to something you've done
since? If it existed when you bought it, the seller is liable. If it's something you've done (inappropriate use, dropped in and damaged it, etc) then they aren't.

For 6 months after purchase, the presumption by law is that the item was faulty when sold, unless the seller can prove it was not. And that certainly still applies.

It can get a bit more complex with mobile phones if the "ship" is just an agent for the network, and that 7 day period can be curtailed in the event of services that have commenced before that time, with your permission.

Were it me, I'd be back at the seller, pointing out "7 WORKING days starting the day after delivery", and see what they say next. In any event, get that to them in writing (fax, email, letter, etc) ASAP if you intend to rely on it because phone conversations do not count (usually), and if you let that 7 working days expire, then any DSR rights are gone.


And if they keep on with this "talk to the manufacturer", talk to Trading Standards and/or Consumer direct. If the shop is trying to lie it's way put of it's legal obligations, TS have a habit of prosecuting.


(Note) In case anyone is going to point it out, it might be a lot longer than 7 working days, if the seller has not provided information they MUST provide. Few screw up like that any more, so it''s rare for it to apply. But it could be up to 3 months and 7 working days, as a maximum.

While I agree with everything you've said mate, I have to disagree with your comment about Trading Standards. Quite simply they don't presecute traders, if a trader is denying your rights then the only way you can enforce them is through Small Claims Court.

They may assist some consumers but only if there is a genuine need for it and if the TSS department has the capacity to do so.

Their basic function is to ensure traders are not ripping people off. They certainly may take an interest in the case and they may even offer advice if Hicks12 lives in an area where TSS will advise people then fine (but I think Hicks12 lives in Plymouth) and they don't offer any advice unless the consumer is vunerable, and as neither Hicks12 or his father are vunerable they won't offer advice or assistance.

Working for Consumer Direct, it's amazing what you learn giving civil advice. It's doubly difficult managing peoples expectations of what TSS function is, and to be fair when I first started I assumed the same as many of the consumers we take calls from.

[Hicks12]

ok I am home now and my dad called HTC while I was at work... they basically said that after looking over the companies t and c that it is imfact their responsibolty still.

I have one quick question that I thought about earlier... I thought dsr was for inspecting but my dad has been using it for the week. and also the delivery was 22nd Tuesday.

[Saracen]

While I agree with everything you've said mate, I have to disagree with your comment about Trading Standards. Quite simply they don't presecute traders, if a trader is denying your rights then the only way you can enforce them is through Small Claims Court.

They may assist some consumers but only if there is a genuine need for it and if the TSS department has the capacity to do so.

Their basic function is to ensure traders are not ripping people off. They certainly may take an interest in the case and they may even offer advice if Hicks12 lives in an area where TSS will advise people then fine (but I think Hicks12 lives in Plymouth) and they don't offer any advice unless the consumer is vunerable, and as neither Hicks12 or his father are vunerable they won't offer advice or assistance.

Working for Consumer Direct, it's amazing what you learn giving civil advice. It's doubly difficult managing peoples expectations of what TSS function is, and to be fair when I first started I assumed the same as many of the consumers we take calls from.

We're at cross-purposes a bit here, Behemoth. Trading Standards certainly do prosecute traders, but I didn't intend to imply that that would help the consumer. I entirely agree, they don't act on behalf of consumers in the sense of getting money back, or directly enforcing consumer's rights, but where shops have committed offences, TS will deal with them. Note .... offences, not civil disputes.

Generally, if they get reports of certain traders committing some offence, it'll get recorded, but as a one-off, probably nothing much more than that. If TS get a pattern of offences from a retailer, they'll usually fire a warning shot across that retailer's bows, in the form of a letter or perhaps a visit. If they still get reports from consumers, then prosecutions will, evidence-permitting, follow.

It won't get the consumers their money back, but that's not the point. The point is to "encourage" shops from abusing consumer's rights in the first place.

One example that TS follow up on is shops denying that certain consumer rights exist. Another is misleading pricing, or misleading advertising. I've personally known of cases where, when misleading advertising has appeared from a retailer with a history, TS have responded with the reaction of "that's just one time too many", and they prosecuted. And won.


So yes, if you want to enforce consumer rights, then the first step is negotiation with the shop. It helps to know your rights, both what you are entitled to and what you are not. And if all reasonable attempts at dealing with the shop fail, then effectively as a last resort, yes, the only way to enforce it is small claims court. Even then, it may be that winning the case is the easy bit. Getting the judgement acted on may be harder .... and more expensive.

[Saracen]

I think with the Distance Selling Regs you should be able to choose a replacement or refund (if they have stock). I don't see how it is any different to any other electrical item, just because he got it as part of a contract, shouldn't mean he has less rights to return what is deemed to be a faulty product. ....

No, not really.

The purpose of the DSR is to allow consumers to inspect the goods on receipt to allow the kind of examination you'd be able to do in a shop, if you bought in person. But that allows a fair bit of latitude, by virtue of the way the DSR is worded, and generally, it's in the consumer's favour.

But the way the DSR operates is to give you an opportunity to cancel the contract. And either you do cancel it, or you don't. If you do, you get a FULL refund, including outbound delivery charges, and only ONE deduction from that is permissible. If the seller's T&Cs require goods to be returned at the customer's expense, then the cost of getting the goods back to the seller is down to the buyer. If you pay to have them shipped back, or deliver them yourself, no deductions should be made. But if you don't and require the seller to get them collected, then they can deduct the direct cost of that from the refund. Note, that's not a general charge, or an admin fee, or a restocking fee, etc. None of those are permitted, just the actual cost of sending the courier.

So no, a replacement isn't an issue if you use the DSR. You send the goods back (if asked to do so, and usually that will happen), and you et a refund. You could, of course, then re-order.

As for the bit about less rights because it's a faulty product, the DSR is NOTHING to do with faulty products. You can just inspect them, and change your mind, faulty or not, under the DSR.

If you cancel under the DSR, and the goods are faulty, then that's the exception to when the cost of shipping the goods back can be deducted from the refund. The actual exception says that if you can also cancel the contract under any other contract term, like your Sale of Goods Act consumer rights (which would ONLY apply in the cases of unsatisfactory quality, not fit for purpose, etc) then the cost of returning the goods rests with the seller. Why, after all, should the consumer pay of the goods are faulty, or not as described, or even, not what was ordered?

As for their being a difference in rights because it's part of a contract, I'm afraid there are differences.

For a start, the DSR covers goods and services. The notice periods for cancellation in the DSR have slightly different conditions in the case of goods to services. And a mobile phone can be both. Or you could be buying a service because you already have a phone, or you could be buying a phone to go with a service you already have. The last two phone I bought were for that latter situation, but the one previous to them was for a phone/contract combined.

The major difference for services is that the notice period to make a cancellation usually ends 7 working days after the order, but it stops when the service starts if it starts earlier with your permission.

If it didn't, people would take a service for 7 working days, then simply cancel.

None of that affects your rights for faulty products, as that's dealt with by the Sale of Goods Act etc, and the DSR is about simply cancelling a distance purchase contract.

[Saracen]

....

I have one quick question that I thought about earlier... I thought dsr was for inspecting but my dad has been using it for the week. and also the delivery was 22nd Tuesday.

A bit of a grey area.

The DSR itself says that you have 7 working days within which to cancel, and that provided the contract is not one of the excepted contracts (and it isn't), and that the goods are ones to which the DSR applies (and most, including mobile phones, it does, but there are goods that don't qualify), then the right to a refund is unconditional. Oh, and the DSR only applies to consumers buying from traders. If you bought as a business buyer, forget a DSR cancellation.

So .... the fact that your Dad has used the phone doesn't prevent a DSR cancellation in it's own right. With most types of goods, it certainly does not. The complication with phones will be that they are often a combination of goods and a service, and if the service has started, it gets more complicated.

Had this been, say, a graphics card, or a knife sharpener, or pair of shoes, .... or all sorts of things, then the situation is clear .... you have those 7 working days within which you can cancel. Period. Full stop.

However .... the DSR also puts a duty on the consumer to take reasonable care of the goods until they are returned. The company can seek to impose limitations on what the consumer can do, i.e. to define "reasonable care". If you do not take reasonable care, then the shop STILL has to refund, and within 30 days AT MOST. But they can then take civil action against the consumer is reasonable care wasn't taken. But they have to convince a court that their definition of reasonable care is fair. If they were to say, for instance, that the packaging has to remain sealed, then (except for sealed audio and video recordings and computer software, which are explicitly mentioned in the DSR as being different) then that limitation would almost certainly be struck down as unfair.

So, in the case of the phone having been used ..... that, in and of itself, makes NO DIFFERENCE to them being require by law to give you the refund. But they might then subsequently take legal action to recover any losses your breach of duty to take reasonable care had caused, if indeed, it has caused losses. it would be for the court to decide if it had.

[Saracen]

Oh, and for the record .... I Am Not A Lawyer. This is a forum discussion, not legal advice.
Just about the only legal advice I ever give is .... consult a lawyer, if you need to.

[Hicks12]

yeah i believe reasonable care has been taken, he leaves it on a clean cloth during the night charging and hasnt a scratch on it, been extra careful as hes waiting for a full skin protector haha.

Thats some very interesting information guys, especially Saracen as always . The fact that HTC said to my dad it sounds like an assembly fault and that Mobiles Phone Direct (ok couldnt be assed to stop saying it) contract even says its up to them within the first 7 days (quoting dsr basically).

Im hoping they sort this out tomorrow as hes emailed them a couple hours ago so will have to see, will be interesting. At the end of the day excluding DSR its still faulty so it should be up to them .