Fitness Superstore - Delivery Dispute

[Intrepid]

On 20th November I ordered a BTX 326 treadmill online at Fitness Superstore.

 

At checkout I had two available options 1. Collect in person £0.00 and 2. Delivery £0.00.

 

I chose delivery and paid or the item using my Lloyds credit card.

 

Later that day I received an e-mail stating the item was collection only.

 

Below are the two latest communications outlining both mine and Fitness Superstores' position on the matter.

 

My last e-mail:
 

Quote

Dear Fitness Superstore,

Thank you for your reply,

I recommend that this is now escalated beyond the sales team to a decision maker within the Bodypower Sports group perhaps even Mr Paul Walker.

Regardless of what is stated on your website it must be understood that the contract that was entered into at the time of purchase was one that included delivery, hence the reason for our ongoing dispute.

I will begin to make my own arrangements for a courier to retrieve the purchased item and have it delivered to myself if Fitness Superstore continues to refuse to honour its contractual obligations.

I recommend that in the interest of reducing the costs incurred for both parties that Fitness Superstore utilise its connection with its UK courier service to find a solution.

However as stated above if Fitness Superstore continue to refuse I will make my own arrangements as necessary.

If we are unable to resolve our dispute amicably this may lead to a claim being brought against you in the county court.

Sincerely,

Intrepid

 

Fitness Superstore reply (my comments are highlighted in red):

 

Quote

I am sorry to hear of your dissatisfaction regarding your recent purchase of an ex display treadmill from our Gloucester store.
Having reviewed your case I would like to highlight our advertised terms and work with you to suggest an amicable solution.

The treadmill you purchased is a showroom display model in our Gloucester showroom.
When showroom products are advertised for sale on our website, the title of the product also highlights the collection (see example attached).

 

The website is programmed and designed to offer all customers a delivery or collection option – when you proceed to payment, the website will have advised you this ex display item is a collect only item and the date options offered are for collection and not delivery. This is untrue their website does not offer collection on all items.

There are some instances where we can organise delivery for some customers – this is usually on the basis that the item can be palletised and shipped to the customer on a kerbside delivery. The website confirms that
we may be able to palletise some ex-display products.
In order to process this, the item will need to be prepared in our warehouse where they have the equipment to move and palletise the product – unfortunately, our showrooms do not have such equipment and are unable to ship to customers due to this.

Fitness superstore are unable to facilitate 3rd party collections due to GDPR regulations.
We are able to allow a 3rd party collection if you are able to pay via bank transfer – we will of course refund the card if you are happy to pay with this option. If you would like us to set this up for you, please let me

In relation to additional discounts, the product purchased is already heavily discounted – it has recently been further reduced by a further 10% - due to this we are unable to offer any more discount. At no point did  ask for an additional discount, I am unsure why this was raised.

If any of the suggestions above cannot be agreed to and we are unable to come to a mutually amicable arrangement we will proceed to cancel the order and refund you in full.

Please feel free to come back to the team if there is anything more we can assist you with.
Kind regards,
Leila - Admin Team Manager

The part highlighted in bold appears to be a very poor excuse for what they are attempting to achieve which is a transfer of liability and removal of the protections assued to me by paying by credit card.

 

As usual I am grateful for any input on how it may be best to proceed. Essentially what I am seeking is the deliery of the item I purchased and if we cannot reach an amicable resolution then a full reimbursement of the additonal costs I incur as a result.

 

Thanks for reading and any comments. Intrepid.

Also what are the commands to Quote? [Quote]test[/Quote] appears not to work.

Edited November 25, 2021 by Intrepid

[Intrepid]

Thank you BF, I have obtained an internet quote which is approximately £182.50

 

I have checked the terms and conditions and there is no reference to execution of contract. It is my understanding that when terms are not expressly agreed that in the absence of the agreement then disputes will favour the beneficiary of the contract i.e. me the purchaser.

 

What do you think of organising the delivery myself in the face of their threat that they will not allow my couriers on site due to "GDPR regulations" (sic). I find this claim bogus and while they may have a legal right to control right of access to their store, in this case I deem it would be be unreasonable to deny access.

 

I also consider that the "threat" is made by a manager further up the chain and that the sales team at the store may not be as bothered if someone turns up to collect goods and is able to produce a courier contract for the purchased item.

[Intrepid]

I do not understand either, however it is outlined in their reply in the quote above which for your convenience I have reproduced below.
 

"Fitness superstore are unable to facilitate 3rd party collections due to GDPR regulations
We are able to allow a 3rd party collection if you are able to pay via bank transfer"

How I pay in my opinion has no bearing on how I collect my goods, especially when I am forced to do so as a result of their breach of contract. What they are attempting is a subtle transfer of liability without the protections afforded by credit card payment.

 

Fitness Superstore are refusing to deliver or produce a cost to do so which is where I thought this would sensibly lead.

[Intrepid]

Alternatively they are happy to sell me a treatmill collected by a third party provided I pay by bank transfer due to some bogus claim under GDPR.

 

Essentially what they are acusing me of is arranging the theft of a treadmill.

 

The link has been removed as it has been purchased by me.

Edited November 26, 2021 by Intrepid

[Intrepid]

Thank you that is excellent, that is exactly what I saw and I have been trying to reproduce it as evidence.

The model is a Bowflex Series BXT326 Folding Treadmill.

 

I have a copy of the listing as advertised and unlike the majority of other items it does not have "collection only" written in the title which is why I went ahead and purchased it and also saw that delivery was available at checkout.

 

The problem I have is that they are refusing entirely to deliver the item but I fully expected that they would come to an arrangement with their courier and offer me a price. As they refuse to deliver I am forced into a position to arrange my own courier which they are attempting to state they will deny access to the premises based on GDPR.

Edited November 26, 2021 by Intrepid

[Intrepid]

Would you mind explaining how you managed to recreate that purchasing process so that I can download a copy of the terms and conditions for reference?

[Intrepid]

Yes that is correct they had/have a few for sale that were listed as such not on the one I purchased, which I can evidence plus the fact I selected delivery at checkout as above.

[Intrepid]

Standby while I upload my confirmation e-mail where it clearly states the item will be delivered. The next day Fitness Superstore re-created their own invoice which is ambigious, it has my "delivery details" but also states collection only.

 

I will post up redacted copies so that they can be reviewed.

[Intrepid]

Uploaded copy of order confirmation stating delivery + their amended? invoice.

FS - Order Confirmation 20.11.21 - Redacted.pdf FS - Invoice 20.11.21 - Redacted.pdf

[Intrepid]

I have not received a refund, I have not requested a refund, my preference is to take posession of the goods.

No I have checked for other retailers, no other availability exists and I believe the model is being discontinued by the manufacturer.

Edited November 26, 2021 by Intrepid

[Intrepid]

I agree that is the plan I formed, do you have any thoughts on how to handle a hypotherical scenario where they are turning away a courier I have arranged to collect the goods.

 

Collection in person isn't an option, I can give a reasonable explanation as to why but I don't think it really matters why, it is simply that I cannot.

 

I can only think if I receive such a phone call that I simply explain that if they refuse entry I will submit an immediate claim for the expenses incurred for the courier service they are preventing from entering, re-book the collection and try again.

 

I could give them advanced warning but this may entrench their position and result in them issuing a refund - which I have not asked for or accepted.

 

Their request that I pay by bank transfer is in my opinion unreasonable and for such a retailer refusing certain forms of payment may be unlawful. Either they accept credit card as a form of payment for all their items or none of them. I've never known a shop to differentiate payment methods based on the item for sale.

Edited November 26, 2021 by Intrepid

[Intrepid]

I raise it because this is what Fitness Superstore stated in their reply to my e-mail indicating I would arrange for a courier to collec the item.

""Fitness superstore are unable to facilitate 3rd party collections due to GDPR regulations
We are able to allow a 3rd party collection if you are able to pay via bank transfer"

 

I anticipate that far from any GDPR complaince concerns they are instead trying to ensure they cannot be subject to a section 75 claim in the event I do not receive the goods.

 

It cannot be the case that these "GDPR regulations" they refer to only apply to credit card transactions and not bank transfers.

Edited November 26, 2021 by Intrepid

[Intrepid]

Ok thank you for your reply, I will arrange for the courier to collect the item. I will see if they deny them a right of access to collect the item then if it all comes to a head on the day I guess I can revert to a refund, followed by a bank transfer then as you state a claim for the cost of the courier.

[Intrepid]

Pay for the item twice?

 

That's pretty shaky ground to simply make a money transfer to them when I have already paid.

Edited November 26, 2021 by Intrepid

[Intrepid]

Ok thank you I had not considered the aspect of abandoning the contract.

Ordinarily there should be no issues obtaining a refund to my credit card but I must say I do not hold out much faith. I have had to sue Lloyds Bank in order to get them to return an £84 payment. They seem to prefer to work against their customers and argue against them in Court rather than carry out their obligations as a card services provider.

 

There is a risk that Lloyds Bank take the position that I choose to pay for the item twice. I have no doubt once a suitable claim is raised I will eventually be made whole but I don't expect Lloyds to facilitate a section 75 claim whatsoever should it become necessary.

[Intrepid]

I have paid for the courier AnyVan to collect the treadmill, total additional costs incurred are £261.23, the payment is fully refundable up to 48 hours prior to contract execution.

Fitness Superstore have simply been informed of the day and time the collection will take place and provided with a copy of the booking confirmation for collection.

 

If they put up a fuss I will proceed as you suggest and make a bank transfer, while making it clear I object to their request.

 

However for now the ball is in their court.

 

I'm hoping with some assistance here, that some or all of these costs can be re-imbursed. I do not think it is proper that a company can bait a purchase - deliberately or otherwise -  by indicating delivery is available and then refuse to provide or facilitate that contractual obligation after the contract is entered into.

Edited December 3, 2021 by Intrepid

[Intrepid]

It appears Fitness Superstore are rather entrenched in making a fuss.

Today I received the following e-mail:
 

Quote

Good afternoon
 

Apologies for the last email, for some reason it sent before I could finish it.
 

I just want to check that you received the email attached from our delivery team, advising the details on collecting this unit.

 

As it stands, we would not be able to release the unit to a third party collection, due to GDPR regulations.

 

The only way we can do this, is if you were to remake the payment via BACS.

 

Please advise if you are able to do this, and our delivery team can arrange this with you.

 

Without doing this, we would have to refuse the collection unless you were also coming with ID and the card used.
 

Kind Regards
 

Peter

I propose the following reply:
 

Quote

Dear Peter,

I am afraid you or the delivery team are not being very clear.

Could you please specify exactly which part of the Data Protection Act 2018 you are specifically referring to in order to deliberately frustrate the contract between myself and Fitness Superstore?

I am not aware of any part of the Data Protection Act 2018 which gives right to a company to refuse forms of payment.

Sincerely,

Intrepid

[Intrepid]

As far as I am aware they do have my money i.e. the payment was taken from my credit card and has not been returned to me.

 

Whether they have a different agreement as to when they actually receive the money from their payment processor is a matter for them.

 

I agree, the affects of submitting the claim and informing them as such are possibly two fold. This either baulks them into returning my money and attempting to recind the contract, or they simply give up with their GDPR nonsense. I even went to the extent of taking out additional insurance for the goods during transportation.

 

My next step was to perhaps make a video of myself confirming my identity and holding a copy of the courier contract. That should put to rest any "GDPR" concerns they may have.

 

The principle point I'm making here is if they suspect fraud then they should explicitly state their concerns as well as their reasons why, not generate imaginary hoops for their "customers" to jump through.

[Intrepid]

Excellent idea, as they seem to be experts in the matter of "GDPR regulations" (sic) they should have no trouble at all in handling such a request.

 

Thank you for bringing to my attention the Act above I had not considered this as a string to my bow.

[Intrepid]

I think it is likely that Fitness Superstore will ignore my correspondence above and they now require a wake up call as to what will happen if they continue their proposed course of action.

 

I have prepared a letter before claim to be sent to their Managing Director Mr Paul Walker and will copy in the Manager of the Gloucester store (Peter) should they wish to respond.

 

Quote

LETTER BEFORE CLAIM

 

Order Reference: xxxxxxxx
 

Dear Mr Walker

On the 20th November 2021 I ordered a Bowflex Results Series BXT326 Folding Treadmill from your website https://www.fitness-superstore.co.uk.
 

At the time of payment when the contract was formed it was indicated that standard delivery was available.

 

On the 23rd November 2021 Fitness Superstore refused to deliver the item forcing me to make my own arrangements to collect my goods.
 

On the 25th November Fitness Superstore Gloucester manager Peter indicated he will unlawfully interfere and obstruct the collection of my goods on 14th December 2021 in contravention of The Tort Act 1977.

Fitness Superstore indicated this was due to "GDPR regulations" (sic), however when asked to explain in detail why this was the case Fitness Superstore refused.
 

If Fitness Superstore rescinds the contract between us, you will be held liable for the foreseeable costs I will incur as well my non-pecuniary losses.

I invite you to respond to this letter within 14 days after which if Fitness Superstore follows through on its proposed unlawful action I will bring a claim against you in the County Court on 21st December 2021.
 

Sincerely,

Intrepid

 

Edited December 5, 2021 by Intrepid

[Intrepid]

Should a LBA not state the cause of action?

It was price on application next to a £0.00 exactly as you kindly reproduced in post #8

 

Post #8 should be found here

[Intrepid]

The page before checkout, shopping basket indicates standard delivery highlighted in green as shown in the PDF "Shopping basket" attached below.

The page at checkout indicates £0.00 price on application exactly as you reproduced in post #8 here and as shown in the PDF attached below "Checkout Page"

The reality as it is presented at checkout is ambiguous, if you think it is worth interpreting it as free delivery in order to take the most aggressive position I am happy to do so but I reasonably expected that delivery was available but that Fitness Superstore would provide a price for this - as indicated at checkout when forming the contract.

FS - Shopping Basket (Indicative).pdf FS - Checkout Page (Indicative).pdf

[Intrepid]

Thank you for taking the time to re-phrase my LBA I have made some minor adjustments highlighted in red for accuracy.

 

Quote

Dear XXX

Letter of Claim – Reference Number XXX

 

On XX date I purchased a make model et cetera from your online store for £XXX

I selected your standard delivery option which your website explains will be decided later.

I completed the purchase and paid for it and in fact my credit card statement shows that you have received the money.

Since then I have tried on several occasions to arrange standard delivery and I have been told that you will not deliver.

Because I need to get hold of the treadmill as quickly as possible – and certainly before the Christmas period – I then decided to organise my own collection and to deal with the problem of delivery charges later.

As you can imagine, it is a heavy object and for me to arrange collection and delivery to my address is an expensive matter and certainly not something I have come to pay myself.

Despite my best efforts, I have been informed by your company that you will not allow the treadmill to be collected by my courier on the spurious grounds that apparently there is a data protection issue.

I'm writing to inform you that you are in breach of contract. Your contractual obligation was in fact to agree standard delivery terms with me.

Furthermore, it is clear that I have paid for the treadmill and therefore the treadmill belongs to me and now you are obstructing my access to it for no understandable reason.

If you will not agree reasonable terms for the delivery of the treadmill within 14 days of this letter then I shall sue you for breach of contract and also I shall ask the court to make a discretionary award in respect of your wrongful interference with my ownership of the treadmill.

Yours sincerely

 

[Intrepid]

I have just now received the following e-mail from Fitness Superstore in reply to my request regarding their GDPR concerns.

"Good Morning,

Thank you for your email. 

Please bring with you:

• This email

• Payment card used to purchase the item.

• A form of ID: Passport / Driving Licence / Recognised Photo ID

Unfortunately, we are unable to facilitate any third-party collections due to GDPR regulations. If you do require for the item be collected by a 3^rd party collection if you are able to pay by bank transfer. We will then be allow to offer the 3^rd party collection.

At the collection, you’ll have the opportunity to check over the product yourself to ensure you’re comfortable with any cosmetic damage or imperfections it may have before you accept it. Although we are not able to provide a full mechanical test or demonstration of the product at your collection, you will be able to return a mechanically defective product within 14 days of collection, or claim under the warranty.

Some of our ex-display items are quite big, so please be sure to arrive in a suitable vehicle – you can check the product dimensions on our website.

Kind regards

Lisa

Customer Service Advisor

Bodypower Sports Ltd | Fitness Superstore
13 Gatelodge Close, Round Spinney
Northampton
NN3 8RJ
Tel: 01604 673000"

 

 

I propose the following reply.

 

Quote

Dear Fitnes Superstore,

I requested that you explain which part of the Data Protection Act 2018 you are referring to, in order to delibertely frustrate the contract between us.

You have refused to provide an explanation or any basis at all for refusing a form of payment - which for the avoidance of doubt you have already received and has been accepted by you.

Please find attached a copy of the Letter of Claim which will be served to your company director, Mr Paul Walker.

Sincerely,

 

Edited December 6, 2021 by Intrepid

[Intrepid]

My reply is the Letter of Claim, which will also be posted today.

I was also highlighting for the benefit of any future readers, namely the Court, their refusal to provide any basis for their unlawful position.

 

I think it would be helpful to me if their customer agents are made aware of it before I take delivery of my goods.

Edited December 6, 2021 by Intrepid