Buyer beware!

The past 12 months have not been a rosy period for PC retailers. Far too often they have been shown in the broadcast media in a less than flattering light. Complaints range from sloppy service to the delivery of goods that bear no resemblance to those ordered.

A recent ecommerce survey neatly summed up the problem. The report from Plaut, called the e-Returns Study, revealed a fundamental flaw in the ability of many UK ecommerce websites (including those of PC retailers) to provide after-sales service. The report can be found at www.plaut.co.uk/pressserv/index3.htm.

Sadly, it seems that poor service is far from exceptional: in fact, it's the norm. Serious problems in the order cancellations and returns process were found in 72 per cent of websites, ranging from not refunding money to it being impossible to cancel orders online. Only 15 per cent of the companies examined provided a level of customer service equivalent to that expected by consumers on the high street. Defects in online customer care included:

• consumer unable to contact the company via phone or email;
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• retailer delivered goods 21 days after confirming that the order had been cancelled;
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• customer was charged for goods that had been confirmed as cancelled, despite retailer informing the customer that they would not be charged;
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• retailer lost the online order and could not accept returns by post, suggested they were returned to nearest high-street store;
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• retailer refunded money after goods were returned, minus the VAT and without any explanation.

And who were the guilty parties? Some surprisingly big names were singled out for criticism in the report, including Dell, Dixons and WH Smith.

Similar levels of dissatisfaction were revealed in a recent PC survey conducted by

• Which?. The survey praised Dell but lambasted Time and Tiny. Of the nearly 14,000 users surveyed, almost 60 per cent had suffered hardware or software problems - most within three months of buying the machine. And when it came to recommending the brand, Time did especially badly, with 16 per cent saying they definitely would not recommend the brand to a friend.

But wait, there's more; much more. The popular BBC1 consumer programme, Watchdog, has targeted the PC business. Tiny Computers, which claims to be Britain's biggest home computer retailer, got the Watchdog onceover back in November, prompted by the 236 complaints received about it in the previous three months. So incensed was one Tiny customer that he set up a website in protest: www.jayw.demon.co.uk/Tiny/index.htm.

It was mail-order specialist Jungle.com's turn almost a year earlier, after the programme received dozens of complaints about faulty goods, failed deliveries and lost refunds. As a result, the Consumers' Association temporarily stripped Jungle of its WebTrader 'seal of approval'.

Unfair terms and restrictive conditions

To add insult to injury, plenty of computer companies don't play fair when it comes to the small print. Whenever you buy something from a major vendor, you normally agree to be bound by their terms and conditions (T&Cs). Usually, no-one reads them because they're so boring, which is a pity as they can make interesting reading, particularly when they attempt to limit consumer rights, something outlawed by legislation such as the Unfair Contract Terms Act.

We had mixed success in tracking down the T&Cs of the major computer sellers. In a perfect world, they'd be in plain view, on their websites.

Some, such as Dell, have links to their T&Cs on their home page; others only display them when you're at the checkout, which is a pretty poor policy. Undoubtedly, Time is one of the worst offenders: not only are its T&Cs not on the website, they're only available on paper and can't be emailed to you.

Mesh Computers has typical T&Cs, full of legalese. Its standard terms are quite restrictive - if you don't like any of the terms, well, tough, they can't be changed, unless agreed in writing by a director, so don't rely on any verbal promises made by a salesperson. And if you buy software, well, you agree to be bound by the terms of the software licence, even though you haven't had a chance to read it. Any defect in the software isn't the responsibility of Mesh, even though the company sold it to you.

Touchingly, the buyer warrants that "it has kept a backup of all the data in the equipment's memory banks", whatever they are. And no matter how late the delivery of your order, time will not be "of the essence". All in all, not very consumer-friendly.

Evesham's T&Cs are short and to the point, occupying just a page; Mesh's fill six pages. Insight's T&Cs are lengthy and restrictive too, but at least it makes clear that not every term applies to consumer, as opposed to business, transactions.

Dabs.com's T&Cs are even shorter but not necessarily friendlier - it "doesn't warrant the suitability of goods for a particular purpose". If the goods you order aren't actually available, Dabs.com reserves the right to rescind the contract. However, minor specification variations don't allow the purchaser to rescind, which is somewhat inequitable.

PC World's T&Cs are clearly written but contain a few contentious terms. For example, "no receipt, no refund" is one of them, a term clearly without any legal basis. Nor, it would seem, is PC World under any obligation to fulfil your order.

Jungle's T&Cs are also a model of clarity, but again contain some iffy terms. For example, one seeks to make you bound by the software licence of any software you buy, even though you haven't seen it. Simply, too, has some corkers: if you haven't paid in full up-front for the goods, Simply can put the price up "to reflect any direct or indirect increase in costs to the seller". Acceptance of its terms is "deemed" if you accept delivery of the goods. And once again, "time of delivery shall not be of the essence" so if it is late with a delivery, you can't then make time of the essence.

How the buyer is protected

Luckily, there is plenty of legislation to protect you, the consumer, against unfair terms like these. In fact, you're not bound by a standard term in a contract with a trader if it unfairly weights the contract against you. This applies in particular to exclusion clauses. Examples include:

• penalty clauses and (except in special circumstances) terms that give the trader the right to vary the terms of the contract (for instance, by increasing the price) without you having the right to withdraw;
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• terms that try to stop you holding back any part of the price of goods or services if they turn out to be defective, or prevent you from withdrawing from the contract while allowing the trader to do so;
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• terms that allow the trader to dishonour promises - for instance, ones made by salespeople.

The new law applies to standard terms - those you have not negotiated yourself - in contracts for goods and services that you buy as a consumer.

It's up to the courts to decide if a term is unfair. If you think a term is unfair and you do not wish to be bound by it, you may wish to seek advice from your local trading standards department or Citizens' Advice Bureau. You can also write to the Director-General of Fair Trading. When he receives a complaint about a term he considers to be unfair, he can take action in court to stop its use in future contracts.

Letter of the law: power to the people

Vendors might try to limit their liability towards consumers, but the consumer occupies a surprisingly powerful position thanks to the provisions of the UK's extensive consumer protection legislation. Much of this can be traced back to a revolutionary Act of Parliament - the Sale of Goods Act 1895. This Act was the result of a raft of court cases brought by disgruntled consumers against greedy, unscrupulous Victorian shops and companies. One case, perhaps more than any other, Carlill v Carbolic Smoke Ball Co (1893), was responsible for getting consumer protection onto the statute books.

The simple facts of the case, indelibly etched on many a law student's heart, were these: The Carbolic Smoke Ball Company sold a quack flu remedy. In a newspaper ad it offered £100 'reward' to anyone catching the flu despite having used the Smoke Ball. The ad also stated that the company had deposited £1,000 with a bank to demonstrate the sincerity of its offer.

Mrs Carlill, an 87-year-old woman, bought a smoke ball which, surprise, surprise, didn't fend off the dose of flu she then caught. Naturally, she sought to take up the kind offer made by the company, which, unsurprisingly, tried to welsh on the deal, claiming variously that it was an unenforceable bet, mere 'puff', or that there may have been an offer but there was no acceptance and so on. The company lost the case.

Although much amended since then (it was superseded by the Sale and Supply of Goods Act 1979) this Act is one of the most important and commonly used pieces of legislation in the consumer protection world, most usually relied on by consumers wishing to exercise their implied rights after buying faulty goods.

The Act was substantially amended by the Sale and Supply of Goods Act 1994, perhaps most notably substituting the term 'satisfactory condition' for the previous implied term of 'merchantability'.

Distance selling protection

The most recent piece of consumer legislation to hit the statute books is the EU Distance Selling Directive, which came in to force in November 2000. Consumers who purchase goods and services by phone, mail order, fax or via the internet will soon be able to do so with greater confidence thanks to this legislation. It provides consumers with:

• the right to receive clear information about the goods or services prior to purchase;
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• confirmation of this information in writing or in another appropriate 'durable medium', e.g. fax or email;
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• a cooling-off period of seven working days (and up to three months in certain instances) during which the consumer can withdraw from the contract (with some exceptions);
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• unless agreed otherwise with the supplier, the right to receive goods or services within 30 days.

There will be a two-month transitional period to enable businesses to take on board the requirements of the regulations, and the DTI has published a set of FAQs at www.dti.gov.uk/CACP/ca/dsdbulletin.htm.

Hopefully you'll be lucky and never have to call any of these rights into play. However, most of us are likely to suffer poor service or be sold shoddy goods at some time in our lives, so it's important to be aware of your rights just in case. Years of work have gone into developing these rights so that you don't have to put up with unsatisfactory service or sub-standard goods. If you need to, you owe it to yourself to use them.

YOUR RIGHTS UNDER THE LAW

The law says that goods you buy as a consumer must be:

• Of satisfactory quality - that is, they must meet the standard that a reasonable person would regard as acceptable, bearing in mind factors such as the way they were described, their cost and any other relevant circumstances. This covers, for instance, the appearance and finish of the goods, their safety and their durability. Goods must be free from defects, even minor ones, except when these have been brought to your attention by the seller: for example, if the goods are 'shop-soiled'.

• Fit for their purpose, including any particular purpose mentioned by you to the seller: for example, if you go to buy a computer game and you explain that you want one that can be played on a particular type of machine, the seller must not give you one that cannot. The goods need only be reasonably fit for the purpose, but the seller is strictly liable if they are not.

• As described, on the package or a display sign, or by the seller. If you are told that a shirt is 100 per cent cotton, then it shouldn't turn out to be cotton and polyester.

These are your statutory rights. All goods bought or hired from a trader - whether from shops, street markets, mail-order catalogues or door-to-door sellers - are covered by these rights. This includes goods bought in sales. When you decide to complain, bear in mind how the item was described.

A new item must look new and unspoiled as well as work properly, but if the goods are second-hand, or seconds, then you can't expect perfect quality.

You don't have to accept a free repair or replacement instead of cash - you're entitled to the return of your money if the goods are faulty, or not as described, or not fit for their purpose. Absence of a receipt is also no obstacle: you're entitled to a refund as long as you can prove you bought the goods from that particular seller.

You aren't legally obliged to return faulty goods to the seller at your own expense. If an item is bulky and would be difficult or expensive to return to the shop, ask the seller to collect it. This does not apply where you complain about faults after having accepted the goods, or if you received the goods as a gift.

However, you have no real grounds for complaint if you:

• were told about the fault;
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• examined the item when you bought it and should have seen the fault;
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• did the damage yourself;
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• made a mistake when purchasing the item;
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• simply changed your mind about the item.

Even so, if you hold on to the goods for too long before returning them, you are deemed to have accepted them.

Under these circumstances you are not entitled to anything, but some traders have goodwill policies that go beyond your statutory rights. For example, some stores will let you exchange goods that are not faulty, such as clothes that are the wrong size. It is always worth asking. As a rule, always add 'unchecked' along with your signature, if you haven't checked the goods for damage when they're delivered.

CAN YOU GET A REFUND ON SOFTWARE?

Many vendors insist that 'opened software' can't be returned and that faulty CD-ROMs will be exchanged by the manufacturer. Clearly, they're trying to prevent people copying them before getting a refund, but such a contentious and blatantly unfair term is unlikely get much sympathy from a judge when put to the test. For a start, the software licence is typically found inside the packing, which entails opening the package to read it, or it's displayed during installation.

Putting aside the whole question of enforceability of these 'conditions subsequent' as they're known, terms applied after you've struck a deal, it seems you have no redress if you want to reject the terms of the software licence, because you've already opened the software so can't return it. This term is almost certainly unenforceable, as it is wholly unreasonable.

Suppose, though, that you're happy with the software licence and install the software, only to find it is unusable because of bugs. Interestingly, Microsoft's End User License Agreement (EULA) obliges you to buy its software AS IS and WITH ALL FAULTS. It also tries to exclude the Sale of Goods Act's implied terms of merchantable quality and fitness for purpose, but it's difficult to see that clause cutting much ice this side of the pond.

The problem of buggy software seems to be particularly endemic to the cutting edge of personal computing - gaming. It seems that, if we are to believe most standard T&Cs, if a game won't run on our PC, then we have two choices: take it or leave it. Clearly, this can't be right.

We can understand that it's probably impossible to guarantee that a program will run on the myriad combinations of hardware that exists out there, but when vendors try to limit their liability by refusing to warrant "the suitability of goods for a particular purpose" and then turn around and say you can't return goods that don't work as promised, it does seem very unfair. On the one hand they're saying "We won't tell you if it'll run on your PC", and "You can't return it if it doesn't" on the other. A 'Catch-22' situation.

Ultimately, in situations like this you have to return to first principles and rely on the protection offered by existing consumer legislation. It's worth noting that, in any event, the seller, not the software author, is responsible for the goods they sell and your contractual nexus is with them and not some third party. If they've sold you something that doesn't work properly, it's their problem.

MONEY BACK ON UNWANTED WINDOWS

Fancy having a bit of fun? Well, try taking up the offer contained in the Windows Licence Agreement. We can guarantee you hours of endless amusement! Most PCs these days ship with Windows pre-installed. But maybe you don't actually want or need Windows, perhaps you'd rather use Linux instead. Or, you've bought a Windows upgrade, say Windows Me, and then buy another new PC, which also has Windows Me pre-installed. Clearly, you don't need a second copy of Windows Me, so long as you've only got it installed on one PC.

The good news is that if you don't want Windows on your PC, you can get a refund. Or rather, that's the theory. The End User License Agreement (EULA) of Windows Me states that "if you do not agree, do not install or use the SOFTWARE PRODUCT; you may return it to your place of purchase for a full refund". Quite unequivocal, you might think. Clearly Microsoft makes no distinction between OEM pre-installs and retail versions of its software - the terms are the same. And what's a Windows Me refund worth? Hard to say, but probably not as much as the normal retail version.

Geoffrey Bennett in Australia actually managed to get an AU$110 refund from Toshiba because he didn't want Windows on his new notebook. It wasn't easy and he found it an uphill struggle to receive the dosh for his Tosh, as Toshiba was initially reluctant to cough up - see www.netcraft.com.au/geoffrey/toshiba.html for more juicy details.

Please note that that refunds are probably easier to obtain if you can prove you have never run the bundled copy of Windows on your machine, and thus can say that you have never accepted the terms of the Windows licence. The way to do this is to make sure that you boot from another OS, for example Linux, when you turn the PC on for the first time. Point your browser to the following link for more info on this fascinating subject: www.linuxmall.com/refund.

USEFUL CONTACTS

Citizens' Advice Bureaux www.nacab.org.uk/
DTI www.dti.gov.uk/consumer_web/index.htm Office of Fair Trading www.oft.gov.uk
The Court Service www.courtservice.gov.uk
/fandl/forms_home.htm Lord Chancellor's Office www.open.gov.uk
/lcd/civil/procrules_fin/cproc.htm The LawStore www.thelawstore.co.uk/index.htm.