T&C's - restocking fee

[jxm28788]

Hi,

I had some T&C's professionally written a while back and I want to make a minor change - I was hoping someone could help?

Basically our internet store has both consumer and business customers and the T&C's were written with the DSR in mind, so basically anyone can return anything for any reason they feel like within 7 days.

But I'm getting fed up with the increasing number of business customers (well consumers as well, but nothing I can do about them) who keep returning items because they accidently 'bought the wrong one' or 'changed there mind' or a veriety of other excuses.

So I want to modify the T&C so that the returns section splits into 2 sections - consumers (who keep the 7 day return period) and b2b customers who can still return within 7 days but will now need to pay a restocking fee of 15% or £10 whichever is greater.

Currently the returns text looks like this -
6 Returns
(1) In the event that you have received damaged items you must comply with clause 5(3). You must then contact us on the day of receipt to advise us giving details of the damage. In the event that you have received faulty items you must contact us within 7 days of receipt to advise us giving details of the fault. We will then advise you how to effect return. When you contact us you will be given a return number which must be enclosed when you return the goods to us
(a) You must return the item and ensure it reaches us within 7 days of the date you received the goods.
(b) Any items must be returned in their original packaging using any forms or reference numbers provided to you by us and with the returns reference number marked on the exterior of the package.
(c) Goods must be sent using a guaranteed delivery service with item reference number capable of being tracked and traced on-line, with sufficient value transit insurance (you must retain stamped proof of all this), as we cannot be held liable for lost or further damaged goods.
(d) Once we have received them safely then a replacement of the item(s) will be sent to you as soon as we are able together with delivery or postage or packaging charges incurred in returning the item(s) to us. This will be within 30 days of receipt of the goods by us. When you have made a card payment credit may be made only to the original card you used to make the payment.
(2) If you are returning goods for any other reason than they are faulty, we would ask you comply with our returns policy in clause 6(1) above. Items must be returned to us within 7 days of delivery, for a refund the items must be received by us in unopened and in a saleable condition.


Could I just change the text of 6.2 to say -
(2) Consumers - If you are returning goods for any other reason than they are faulty, we would ask you comply with our returns policy in clause 6(1) above. Items must be returned to us within 7 days of delivery, for a refund the items must be received by us in unopened and in a saleable condition.
(3) Businesss customers - If you are returning goods for any other reason than they are faulty, we would ask you comply with our returns policy in clause 6(1) above. Items must be returned to us within 7 days of delivery, for a refund the items must be received by us in unopened and in a saleable condition. There will be a restocking fee of 15% or £10, whichever is greater, and delivery and return delivery charges will not be refunded.
- or would that cause a conflict? Or is there a better way of saying it?

[Antonia @limeone.com]

Normally the company writing the document will make some minor amendments to the contracts for you free of charge. It's not possible to advise fully without seeing the whole document as normally you cover the definition of consumer and business clients in a definitions section to avoid having to follow a clause by clause amendment. Happy to review for you if you email it to us as a word doc.

[jxm28788]

Normally the company writing the document will make some minor amendments to the contracts for you free of charge.hmmm, glad you said that because your company name rings a bell - I think it might have been you that wrote them in the first place! :D

Before I posted I searched my emails but couldn't remember the company name so couldn't find the details oif who wrote it - I'll have a search for limeone and if it was you I'll email you directly.

Thanks,

John.

[The Dispute Resolver]

Firstly, as to distinguishing between consumers and business buyers, your suggestion will work for those customers for whom you have evidence that they are business customers, but I do not see your suggestion as practical enough to be adequate in most cases. The T&Cs I provide underpins business use where declared and the websites request that information on purchase. To encourage the business declaration, the website will offer some incentive eg discount, gift etc. If a non-business buyer seeks to wrongly declare he is a business buyer then he loses his rights under the DSR. This is especially important given that so many consumer items are bought these days for business use even if part business, eg laptops, digital cameras, phone etc, so many business users wrongly gain DSR rights by default.

Your T&Cs do not properly reflect your duties to consumers under the DSR to return the goods. One result of your T&Cs is that your customers now have an extended period of up to three months to cancel and demand their money back. :-




You state the cancellation right is only available if they goods arrive back with you within 7 days. That is not what the Regulations state. All customers have to do is notify you within 7 days of their wish to cancel. So because of that you have failed to notify them properly of their rights with the result that the 7 days does not begin to run until you do so notify them, or three months whichever is the earlier. I suggest you consider writing to all your customers from the past three months to correct the error and at least shorten the cancellation right. However the problem, of course, is that you may thereby provoke cancellations so maybe you prefer to risk not doing that ! Certainly, at least, change the wording urgently to protect you for future sales.
You also are wrong in making the cancellation right conditional on the goods being “unopened and in saleable condition”. The rights of consumers to cancel are not dependent on such conditions and cannot be required to be. So you are misleading your customers. It is true that the customer has a duty to take reasonable care with the product but does not lose his cancellation right. If care has not been taken then you can claim damages from him (not not by set-off against returning the purchase monies).
Clause 6(1) sets out what happens in cases of faulty goods and then 6.(2) is odd in saying that it, in case of non-faulty goods, 6(1) applies, which begs the question of why exclude non-faulty from 6(1) in the first place!
Clause 6(1) (d) is itself confusing. It refers to sending out a replacement item and then to crediting the card. Once again this misrepresents the position to consumers since they are entitled to their money back not a refund. After all, if the item was not faulty then why should they want a replacement of the same item?
Although you can require a consumer to pay for the re-delivery cost, you cannot insist on the item being re-delivered. If they fail to do that, then you charge them the re-delivery charge. Essentially the consumer just has to make the item available for collection.



For those interested , I am running a series of webinars on all issues of law related to websites. Register at www.TheResolver.co.uk (http://www.theresolver.co.uk/).

[jxm28788]

Thanks. I must admit when I pasted that section I did spot a few of those things (like returning in 7 days, and being un-opened) as I now know a lot more about the DSR than I did when I had the T&C's written - however, I wasn't aware of the implications!

I think it's likely that I changed that section myself at the time, which shows how making a few apparently 'harmless' word changes can have bigger implications.

I'd better get that fixed... Sounds like a good idea to encourage people to sign up as businesses, as I imagine that many genuine consumers would fraudulantly claim to be businesses to get an extra discount thus shooting themselves in the foot as far as the DSR is concerned and allowing me to charge them restocking fees and making them pay the shipping for returns.

How much are your t&c's btw? and any examples of free gifts that might make companies declare themselves (for those of us in a very low margin business?)

[Antonia @limeone.com]

It is very important, when terms are written for products or services that they are only ever used for the site they are developed for.

To use the terms for another site not only causes issues legally with the site owners' clients under DSR and potentially other consumer legislation, but also often breaches the terms of the licence they were purchased for.

Lime One offers free law updates for all contracts for either 12 or 24 months post purchase, depending on costing option selected, but unless a general contract is purchased our licence only covers the site they were commissioned for for, all the reasons discussed above.

[The Dispute Resolver]

Your free review after 12-24 months is an excellent idea but I do not agree, Antonia, that you need to change the T&Cs for the same client to use on another website. What may require change is a significant change in the class of product or type of service or delivery arrangements etc although even there a single set can still apply (e.g. "if the goods are in the following categories then clause x applies"). Obviously site navigation and click-accept may vary between sites but I include guidance which can simply be replicated.

Certainly clients should not re-use unless agreed with and licensed by the provider of the T&Cs but I see no reason to charge further just to re-do essentially the same product.

I have recently provided a template for a very busy web design company to use across the board for all clients with a DIY application/variation guide to stick it all together. Sort of contractual origami.

Yes nobody should just cut and paste and use someone else's T&Cs but they can be made to be generic in accordance with a DIY guide. It makes sense for designers to provide the legal content as part of their service rather than leaving it to the clients to search out a lawyer to charge for as a one-off.

This was not the problem here though but some conflicting terms that may have come about because the client decided to add in his own text.

[Dymo King]

sorry, wrong thread, contents deleted.

[jxm28788]

Just to clarify, there was some confusion due to the time elapsed (2005)and having purchased several legal documents at the time, but I did request and pay for a set of "generic terms & conditions that could be used on multiple websites".