Issue with online sports supplement company.

[Loafmanuk]

Hi all, I'm still a bit of a newbie, but have received good advice here in the past and thought I would ask if anyone has any suggestions about a problem I am currently having. It is a bit long winded, but bear with me! I have attached a copy of their T&C's for reference.

 

As per the title, I ordered some sports supplements from a company called 'My Protein', who have an online shop/website. I realise that I am covered by distance selling regulations, but am having a slightly different issue.

 

My order was placed on the evening of Thursday 16th Sep 2010, and I received it on Monday 20th September 2010. Upon opening the box I noticed a lot of dust inside, and quickly realised that a 5kg bag of whey protein powder had a 4 inch split in it and had spilled into the box. No problem I thought, I'll return it for an exchange.

 

Well, this is where things started getting silly. I reported it to them by email, and they asked (by email also) a few questions, like, was there any visible damage to the box everything was packaged in, and can you provide a photo of the damage. Of course I answered all questions and sent a picture of the damage. They responded with an email claiming that the product would not have been contaminated and was still safe to consume! How can they claim that? They had no idea if it is safe! And neither did I, after all no one knows when or how the bag became split.

 

They asked how much whey protein had been lost from the bag and they would credit my account to the value of the loss. Of course I declined this offer, and explained to them that they cannot say it is safe to consume. I followed by saying I wanted the product exchanged. Which they agreed to.

 

They then asked when I was available, as they would arrange a collection. I had no work on this morning (23rd Sep 2010), so said I could wait in until around 12.45 pm. They then confirmed a collection was arranged for the morning of the 23rd.

 

Well, I waited in from 7:15 am until 12:45 pm (5 1/2 hours), and no collection attempt was made. I notice the following line in their T&C's "We will normally arrange for a courier to collect any damaged items at a time agreed with you.". So would that be a breach of contract?

If it is a breach of their own contract, do I have a leg to stand on as far as claiming compensation goes, or invoicing them for my time. After all, I have sustained loss, due to their breach of their own T&C's.

 

Many thanks in advance, Loaf.

MyProteinT&C's.txt

Edited September 23, 2010 by Loafmanuk

[rebel11]

Hi Loaf

 

I would e-mail them and tell them that you want compensated for your wasted time. When you E-mail them, tell them that theres also a Health and Safety issue here, they shouldn't tell you the product is o.k. to consume when the packaging has been split. This is one for Trading Standards. Ring Consumer Direct see if they can

put you through to report the Health and Safety issues.

[Loafmanuk]

Hi, thanks for the reply. Trouble with asking for compensation is that their (as attached to first post) T&C's state, "Myprotein® shall not be liable for economic or financial loss or any special, indirect or consequential loss or damage whatsoever and howsoever arising.". Which is why I haven't asked them to compensate me as yet, because I know they would throw it back in my face. Also, I have already mentioned the health and safety issue of their claim, and will use it as a persuasive measure at some point.

Do you think it will be possible to claim any form of compensation? Or would I be wasting my time?

It would seem their is a major imbalance in the rights of them (Myprotein) and myself (the consumer) as laid out in the Unfair Terms in Consumer Contracts Regulations which states:-

"A term is unfair if: Contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers."

I don't know, this is really getting me annoyed, they have screwed over the wrong guy here! Any further help will be gratefully received! :o)

[Loafmanuk]

I emailed explaining the ball was in their court, after all I had followed all their instructions to the letter, and they had still failed me. So at last they have seen sense, and offered to send me another bag. They have said I can dispose of the damaged one any way I please. Still don't know why they had to make it so difficult for me.....

[rebel11]

Excellent stuff, well done, up to you if you want to pursue it with Trading Standards or not.

 

I emailed explaining the ball was in their court, after all I had followed all their instructions to the letter, and they had still failed me. So at last they have seen sense, and offered to send me another bag. They have said I can dispose of the damaged one any way I please. Still don't know why they had to make it so difficult for me.....

[perplexity]

Do you think it will be possible to claim any form of compensation? Or would I be wasting my time?

It would seem their is a major imbalance in the rights of them (Myprotein) and myself (the consumer) as laid out in the Unfair Terms in Consumer Contracts Regulations which states:-

"A term is unfair if: Contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers."

I don't know, this is really getting me annoyed, they have screwed over the wrong guy here! Any further help will be gratefully received! :o)

 

----

 

The opportunity is rather to raise the stakes!

 

The Unfair Terms in Consumer Contracts Regulations were upstaged by the Consumer Protection from Unfair Trading Regulations 2008.

 

An unfair commercial practice (the effect of which would be to deprive the average consumer of a legal right) may thus be prosecuted as a criminal offence.

 

The law obliges online suppliers to inform a consumer that the right to a full refund exists (because of the Distance Selling Regulations), which is to suggest that an attempt to the contrary is prosecutable as a strict liability offence, which is to say that a proof of the fact that an unfair term misleads is sufficient to convict, whatever the intention of the supplier.