Fitness Superstore - Delivery Dispute

[BankFodder]

It probably is something to do with the store. Best to ignore it

[Intrepid]

Yesterday Fitness Superstore Manager - Layla left a message on my answer machine wishing to discuss my "letter" (my letter of claim) sent to their Director Mr Paul Walker.

 

I'd say whatever GDPR concerns Fitness Superstore claim to have, they will struggle to substantiate them in Court as they are in receipt of a courier contract for delivery to the same address on the Letter of Claim they received, and are content to leave messages containing personal information on my answer machine.

 

In additional despite purporting to have extensive knowledge of GDPR legislation, I have not received acknowledgement of the SAR they received so I expect that will come as a bit of a shock in approximately one months time.

Edited December 7, 2021 by Intrepid

[Intrepid]

Fitness Superstore Department Manager - Layla has just left a message stating if I do not call them back they will cancel the order.

I note despite being desperate to contact me and presumably being the beneficiary of two working hands, a computer and a connection to the internet Layla is unwilling to write to me or provide an e-mail address in order to correspond directly.

[BankFodder]

I suggest that you write to whoever it is to send a letter of claim – because clearly Layla is in the loop.

 

Quote

Dear Layla, if you have something to say then please put in writing.

You are now threatening to cancel the order.

If you do cancel the other than that is a further breach of contract and I will be including that as an element of the claim which I will be bringing against you as I have already explained in my recent letter of claim.

If you have a proposal to make that I'm very happy to read you have to say. The door is always open – but the clock is always ticking.

Yours sincerely

 

[Intrepid]

The following e-mail has now been received from Leila.
 

"I have tried to speak with you again today and have left a 2^nd voicemail on your phone (xxxxxxxxxxx).

Please can you return my call to discuss your order requirements – please call me on 01604 673000.

If I do not hear back from you by this time tomorrow, I will assume you no longer wish to proceed with your order and your order will be cancelled and refunded.

Kind regards,

Leila   -  Admin Team Manager"

In my haste I responded to their delivery team with the e-mail below before I recieved the above e-mail. Admittedly it probably would have been better to wait for the option you proposed above.

 

Quote

Thank you for your personal message you have left on my answer machine.

Is there a reason you will not write to me despite stating that you wish to contact me urgently?

You requested that I contact you to confirm I still wish to take possession of my goods.

You can be under no illusion that this is notice in writing that I intend to hold Fitness Superstore to our contract and should it be rescinded by you without my agreement the recorded message you left will be presented in Court.

Sincerely,

 

Edited December 7, 2021 by Intrepid

[BankFodder]

I think you should stop trying to use legal language all the time because you aren't a lawyer and it shows

[Intrepid]

I was almost flattered there for a moment until the typo was edited.

Anyway duly noted. I believe I understand your reasons, sometimes it is best to travel East or West rather than North and South.

Any further correspondence will be posted up for review prior to sending.

[Intrepid]

The following reply was received from Fitness Superstore:

My comments are in red

I am happy to prospose a reply but I understand that it may be more straight forward to await your suggestion.

 

Quote

When customers make the mistake of ordering an item they are unable to collect, we offer the following: No mistake was made, I made the order after checking carefully that delivery was available as indicated at checout.

 

1. A full refund

2. An option to pay the difference between the ex-display item and a new product which we can deliver

We understand that since becoming aware that this item is a collection-only, you have asked a third-party service to collect this item for you. Fitness Superstore are in agreement that I have arranged for collection so do not see how they can then claim to prevent this collection based on the idea the courier is not collecting on my behalf.We typically ask the customer to collect the item themselves as we ask to see ID and the payment card on collection, which would not be possible for a third party (my colleague broadly referred to this as a GDPR concern, though it is largely to ensure the item is given the to the correct customer and cardholder). As you had already arranged a third-party collection, my colleague advised that we could avoid the cardholder and ID check should you be able to pay via bank transfer. The Bank Transfer is nothing to do with GDPR and is simply an attempt by them to get me to give up protections afforded to me by purchasing the goods on a credit card. This is disingenuous.

 

To summarise, we can offer you the flowing options:

 

1. A full refund

2. An option to pay the difference between the ex-display item and a new product which we can deliver to you

3. Collect the item yourself on the basis of the card payment you have already paid

4. To pay via bank transfer and have a third-party collect the item on your behalf
   I prefer option 5. The courier I have contracted to collect the goods retreives them from the store on my behalf and delivers them to me.

Please let us know which of the above options you would like to proceed with.

 

Kind regards,

Leila   -  Admin Team Manager

 

[BankFodder]

Quote

Dear XXX

Reference number XXX

No error was made.
I have screenshots which show very clearly that the treadmill I bought is eligible for standard delivery.

You say that the reason that I organised my own collection is because I suddenly became aware that the treadmill was collection only.
This is not true. The reason that I organised my own collection is simply to get hold of the treadmill as quickly as possible and to mitigate my losses as well as yours.

It's a heavy item and it is entirely reasonable for me to make the arrangements that I have.
 

However you seem to be determined to place various obstructions in my way at every turn.

I notice that if I chose a brand-new model instead of an ex-display model, that you would apparently have no difficulty delivering it to me. Clearly the logistics of delivering the treadmill pose no problem to you and I can only conclude that because the display model is reduced in price, your objections are simply about money saving.

I don't see any point in this futile exchange of correspondence. I have sent you a letter of claim and the clock is ticking.

We will put all of this correspondence including the screenshot in front of a court and I have no doubt as to the conclusion that the judge will reach.

Basically a business which realises it's made a mistake but is trying to wriggle out of its obligations.

Yours sincerely

 

 

[Intrepid]

Another reply from Fitness Superstore.

My comments are in red.

 

Quote

Once again, we are sorry you thought the item could be delivered. Because I purchased it using standard delivery - price on application and received an order confirmation for standard delivery. As stated in our delivery terms and in the product description, the treadmill is to be collected from our Gloucester showroom.

 

Here is a link to the terms and conditions that are agreed to via a checkbox on purchase: https://www.fitness-superstore.co.uk/terms-and-conditions

 

Here is a link to the delivery terms that are linked to from the terms and conditions: https://www.fitness-superstore.co.uk/delivery The link to their delivery page simply substantiates my position - "standard delivery orders will be delivered within 5 working days"

Both of these pages can be found in our website footer.

 

You will see the delivery page states: “Please note that Ex-display products are currently for customer collection only”. This is misleading - What it actually says is "In most cases delivery will not be availble and where delivery is available it will be chargeable based on location and product value". I.e. I had a reasonabe expectation that delivery was availalbe when the contract was formed under the chargeable condition or more accurately that I was making the purchase using standard delivery as is indicated in my order confirmation.

 

As we have mentioned previously, the product page of the item you bought (https://www.fitness-superstore.co.uk/bowflex-results-series-bxt326-folding-treadmill-gloucester-ex-display-model.html) states the following as the first line of content: “Ex-Display Model. Customer to collect from our Gloucester Showroom (By Pre-Arranged Appointment Only). Their advertisement is not a condition of sale and not in keeping with how the contract was actually formed at checkout.

 

 

Further down the page, it also states: “Non-Northampton Store Ex-Display. All Ex-Display items from non-Northampton stores must be collected from the applicable store. We will arrange this with you post-purchase.” This is misleading - the are several descriptions for various forms of delivery. In any case I think the point to focus on is the bank transfer payment forms no part of the contract for collection nor is it mentioned on their website.

 

To clarify, new treadmills are sent boxed from our distribution centre in Northampton. This ex-display item is pre-built in Gloucester and must be collected, as we made clear in the above links.

 

We can offer the following options:

 

1.            A full refund

2.            An option to pay the difference between the ex-display item and a new product which we can deliver to you

3.            Collect the item yourself on the basis of the card payment you have already paid

4.            To pay via bank transfer and have a third-party collect the item on your behalf Their terms and conditions nor their delivery page make any reference to the requirement to make payments via bank transfer.

Option 5 my courier collect the goods on my behalf and deliver them to me.

 

Again, we cannot deliver this item as has been laid out in our terms. Please let us know which option you would like to go ahead with.

 

 

Kind regards,

 

Leila

 

Edited December 8, 2021 by Intrepid

[BankFodder]

Quote

Dear Leila

We'll see what the judge makes of it

Yours sincerely

 

[Intrepid]

Fitness Superstore cancelled the order without my agreement.

 

Quote

In light of your last email we think it best we cancel your order. The refund to your credit card has already been processed.

Best regards
Customer Service

 

Please accept this email as confirmation that the order has been partially or fully refunded.

SagePay Refunds (How long does it take?)

After a retailer has issued a refund, and confirmed this back through to you, funds can take a further 3-5 days

to clear into your account.

It is important to remember that once a refund has been issued and the funds settled back in to your own

account that your bank have a clearing process that must be followed.

If the funds have not cleared 5 working days after the refund has been issued, contact the business again to

ensure this has been carried out.

We are very sorry for any inconvenience caused.

Kind regards

Fitness Superstore

13 Gate Lodge Close

Round Spinney

Northampton

NN3 8RJ

01604 673000

 

[BankFodder]

Are you able to find one elsewhere – and if so how much is it including delivery?

[Intrepid]

I repurchased it from FS, it was still available for sale with Standard Delivery. This time I screenshot the entire process.

 

It is not available for sale else where.

 

When I selected standard delivery at checkout the price was £0.00

Edited December 9, 2021 by Intrepid

[BankFodder]

Sorry but I'm not too sure about what you are saying.

You have bought it again – at the same price?

Will it now be delivered?

[Intrepid]

Correct, at exactly the same price, they relisted the item after cancelling my order.

 

I cannot answer as to whether they will deliver it. I suspect they will e-mail me again claiming they cannot deliver but once again the ball is in their court.

 

Please see the attached screen shots of the checkout process. I have also received another order confirmation confirming delivery.

 

When the PDFs were combined it struggled to display both pages correctly so for ease I have uploaded the documents separately.

 

 

FS - Shopping Cart.pdf FS - Checkout - Redacted.pdf

Edited December 9, 2021 by Intrepid

[BankFodder]

It is becoming an extraordinary story.

Let us know what happens about your new order

[Intrepid]

"Owner of treadmill forced to repurchase their own goods twice from Fitness Superstore"

Of course I will keep you updated.

[Intrepid]

FS cancelled the order again with the following e-mail:

My comments are in red:

 

At this point I could make the bank transfer under protest as you suggested earlier to ensure I receive the goods.

 

Quote

Order cancelled and refunded.

We assume you have placed this second order in error as we are unable to deliver as noted in numerous areas on the website page. I repurchased the item because they cancelled the contract without my agreement and in order to mitigate the losses they will incur if they deliberately sell my treadmill to someone else.

Regards
Customer service

 

Edited December 10, 2021 by Intrepid

[Intrepid]

FS have made partial disclosure of data following the SAR they received.

 

Upon review it is incomplete, they have included our e-mail correspondence but have failed to disclose a copy of the order confirmation indicating the item will be delivered.

 

As usual I am happy to prepare a response but will await your suggestion.

 

Ordinarily I would make an immediate complaint to the ICO but on this rare occassion there is time left regarding the one month deadline. In my experience companies normally disclose their data a day or two prior to the one month deadline.

Edited December 10, 2021 by Intrepid

[Intrepid]

I realise importantly I may have been incorrect in saying there is no other treadmill available. They have two more available at other stores, both ex-display but listed as not for delivery. However I expect the point is they do have a way of providing me with the actual goods we contracted for instead of something similar for replacement.

[Intrepid]

FS re-listed the item stating collection only. At checkout standard delivery was available.

As my couriers are due to collect the item I have re-purchased the treadmill for a third time.

[Manxman in exile]

I'm just re-reading this thread and have to ask whether there is a failure of communication here?

 

Aren't the main points of Intrepid's argument that (1) when purchasing originally the website made no stipulation that this particular treadmill - unlike other ex-demo models - was "collection only", and the OP has screen-shots to prove this, and that (2) upon completing the purchase at checkout, "Standard Delivery" was shown at "£0.00" (ie free delivery) and again the OP has screenshots proving this.

 

On my reading of the LBA neither of these (to me) crucial points are made.  It does not spell out that the item was not advertised as being "Collection only", and nor does it state that "Standard Delivery" was shown at checkout as being free of charge.

 

It just seems to me that the basis of Intrepid's claim* is perhaps not expressed as clearly as it might be, and that that FS might not fully understand the argument?

 

I'm ignoring any difficulties around arranging collection by courier for the moment - I'm just querying if the OP has clearly made the original contract breach case).

 

*ie that he contracted in good faith that delivery was available at no charge, and that if it wasn't available, then he could arrange collection by a third party at the expense of fs, and not at any extra expense to him

[Intrepid]

I sent FS a copy of the courier contract for collection so they should be no confusion for them as to how I intend to collect my goods.

 

FS have rescinded the contract between us for a third time without my agreement by way of indicating they have refunded my third purchase of the treadmill.

 

As of yet they have not re-listed the item.

 

I think they understand perfectly well what is going on. They don't actually have any issue with what I have done by way of arranging a courier to collect my goods.

They ultimately want to insist on a form of payment which results in their customers giving up their consumer protections for a method of payment they accepted without question.

 

While I don't believe I should have to pay in the way they insist (it appears they have withdrawn the offer anyway) they would prefer to rescind the contract without my agreement and I have to say I really will be feeling the loss of enjoyment of my goods quite strongly in a few days time.

Edited December 10, 2021 by Intrepid

[Intrepid]

I had even more faith than what you are suggesting. I expected them to quote me a price for delivery using their couriers seeing as they deliver nationwide.

The fact they then went on to refuse to even make such a simple arrangement is even more baffling and is the point I began to feel very strongly that I should be re-imbursed for the losses I have incurred as a result of their breach of contract.