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Joshua
Joshua, Lawyer
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Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I would like some commercial legal advice regarding a

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HelloI would like some commercial legal advice regarding a purchase of equipment from an overseas supplier, who are failing to provide the aftersales support or warranty advertised and what my rights would be regarding requesting a chargeback through my credit card company and where I would stand when the supplier takes action to recover the payment.The product in question is a powder filler we use for packing our products. It was purchased through Alibaba (an international online marketplace owned by a Chinese corporation) and there was a trade assurance agreement through Alibaba that would allow me to cancel the order and receive a refund if the product wasn't delivered or was defective.During the month-long period of the Trade assurance, I received a $200 refund for a part that wasn't manufactured to the specifications agree. However, about a month later, one of the parts on the machine failed. This shouldn't have been a major issue. The parts could have been replaced for less than £100 by the manufacturer. I would have even been pay this. To get it fixed in the UK would cost around £500 - £800 and no guarantee of it being done correctly as I would need wiring and electronic schematics to be sure it has been wired correctly.The supplier is ignoring support requests. Something they threatened to do previously after making a compliant. I have opened another dispute with Alibaba to mediate but so far, they haven't really made much attempt to get the supplier to comply with the advertised warranty terms shown on their listing on Alibaba.All I requested from the dispute was that they enforced the seller to comply with the stated terms. That hasn't got anywhere even though Alibaba have the power to enforce that and withhold funds from the seller or suspend them from the platform. I feel they are therefore liable as the retailer.The purchase was made through a commercial credit card (Capital on Tap), so I can request the card issuer to do a chargeback on the basis that the supplier has mislead me, aren’t providing the advertised support and right now the equipment is unusable. I would be willing to return the equipment in the event of a chargeback if the supplier will pay for the shipping – although I would ideally want to ensure the chargeback will definitely happen once delivery is confirmedIt is within 120 days from delivery although that deadline is coming up soon. On that point though Alibaba have got the confirmed date of delivery a month after it was delivered. Their system automatically assigns the date of delivery 4 - 6 weeks after the confirmed shipping date. So not sure whether the actual delivery date or the date stated on the Alibaba contract would be taken as correct.We were not able to start using the equipment for 2 - 3 weeks after delivery, as it wasn't properly wired, and we needed to get an electrician who could wire the equipment correctly on a 3-phase system. I'm not sure whether this would make a difference.There are very few details stated about the warranty. It shows on the product listings and states a 2-year warranty and after sales services with replacement parts and video technical support. So very open with no detailed terms but I believe that would be to my advantage rather than the seller as they don't state any conditions where the warranty wouldn't apply.
If that is correct, would a full refund for failing to meet the warranty terms be considered fair and reasonable. If not would a request for a partial refund be a better option.Even if I don’t receive a refund but the chargeback requests forces Alibaba to deal with the seller properly and get them to agree to provide the after sales service and warranty, then I would be happy with that outcome. However before requesting the chargeback, I would like to know my legal position.Please let me know if you can help in this matter and how much you estimate it would cost to advise me.So, what I need to know is:
1. Would I have valid
JA: The answer cost depends on the issue and time to respond. You'll see the exact amount on the next page and can decide then. It's way less expensive and more convenient than any face-to-face visit. What location is this in? And just to clarify, when was the purchase made?
Customer: Let me just check the dates
JA: Have you contacted the seller or manufacturer?
Customer: Yes the manufacturer is just ignoring all contact requests. The order was placed through Alibaba though who are an online marketplace. I opened a dispute with them but they haven't done anything
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: The initial payment was made on 07/26/2021 with the balance paid on the
08/06/2021. The goods were received on the 18th or 19th August

Hello and thank you for your question. My name is ***** ***** I will be very pleased to assist you. I'm a practising lawyer in England with over 15 years’ experience. Please be aware that although I will endeavour to reply to you promptly, I am also in full time private practice and so I may not be available to respond immediately and it may also take me a few minutes to prepare a reply. The site will notify you as soon as I respond. I look forward to working with you to answer your question fully.

I am very sorry to read of the above and I imagine how frustrating it must be. I will certainly try to clarify the position for you.

May I confirm the question or questions you have in relation to the above please? I can see that you started to type a question would appear to have been cut off mid-flow...

Customer: replied 15 days ago.
Hi JoshuaYes it looks like my questions at the end of the message were cut off. Here is the part that was cut off:So what I need to know is:1. Would I have valid grounds for requesting a full or partial chargeback through my card issuer. Right now, I can't use the equipment for its intended purpose. I only purchased it for the part that is not working.2. If so, what could be claimed e.g. full payment, half payment or an amount equal to arranging the repairs needed myself. If the latter, can I also claim for future costs e.g., an annual maintenance contract for 2 years as the seller don't appear to want to do this3. If the card issuer approves the chargeback but Alibaba wish to make a legal challenge through the courts to recover the money, do I have good legal grounds under UK commercial law to defend this.I look forward to hearing from youKind regardsGordon Angus
Managing Director
MySuperfoods Ltd

thank you and I apologise that your questions were cut off originally. Dealing with each of your questions using the same numbering:

  1. a chargeback right exists for a period usually of 120 days unless the particular card issuer has extended this period which is comparatively rare. The 120 days starts from the later of the date you make a payment against the card or in the case of future data transaction such as services too be provided in the future or goods to be delivered at a later date, the date the service or goods are provided or delivered. Accordingly, the time. In this case should commence on the date of delivery. If you can demonstrate that the equipment was not supplied according to a specification, then there would be a basis to seek a partial chargeback to reflect the costs of repair and reinstatement on the basis you have chosen to keep the goods or in the case you wish to return them and have sought to do so, a full refund.
  2. I think I have dealt with this above.
  3. I am not certain that Alibaba would necessarily seek to make a claim against you as they are an intermediary. I imagine what would happen if you were to charge back the amount as they would simply debit the suppliers account with them accordingly at setting off future sales against the amount that has been debited and it would be the supplier that would take action. but in any event, providing you can demonstrate that the goods supplied were not according to the specification agreed, there would be a good basis for a defence just as is the case as regards ***** *****
Customer: replied 15 days ago.
Hi JoshuaThank you for your response.Just to clarify, the issue isn't that the products weren't up to specification. There was an additional part that wasn't as specified but I received a refund for that by opening a dispute. That was during the trade assurance period where it is much easier to get issues dealt with, but only last 30 days from delivery.The issue is that they are deliberately failing to provide the technical support and parts replacement warranty stated on the product listing. The equipment itself is of a reasonable standard. However with electro mechanical equipment like this, technical support is essential and it was stated that there was a 2 year warranty (parts replacement) and technical support.After I had issues with the company before and opened a dispute with Alibaba they threatened to withhold support in future. I have this in a Whatsapp message. After the part broke down, I contacted them to ask for a part number and the manufacturer so I could get a replacement part. They responded to a separate non support question and totally ignored the support question. I then asked for the price to ship the part by air freight. That was also ignored. I sent a number of follow up messages which were read but ignored and then they just stopped even reading my messages. I'm assuming they blocked my number.So they issue is that after sales technical support was an essential part of the purchase and is being deliberately withheld. I can show that they threatened to withold support and then ignored all my support requests made through Alibaba and Whatsapp.So I assume based on what you have said, these would be valid grounds for a chargeback, but what value do I put on the after sales support. It's not just the current repairs but future repairs over the next 2 years. A support contract in the UK would cost around £1000 a year, which would include 2 visits a year. So based on a 2 year warranty, would a £2000 chargeback be something that could be justified legally. The total product cost was only about £2500.So please could you confirm based on what I have said above whether the failure to provide support which was stated on the product details page - and therefore I assume false advertising - would be valid grounds for a chargeback.If so what would an amount that would be considered reasonable be? Can you give me any guidelines on how a court would determine a reasonable amount?Just to add that I would prefer the supplier just provide the support but I can't get a response from the supplier and Alibaba are useless once the trade assurance period has ended. So I see this as my only recourse and something I have a limited time to initiate. After the chargeback period ends, then the only option would be taking legal action through the Chinese courts and that's not really practical or worthwhile for the amounts involved.ThanksGordon

Thank you. Forgive me for not being clear. In contractual disputes, " specification" doesn't refer to specification as the specs of a device or machine but rather the specification being the description and included services and warranties (if any) provided by the seller - i.e. what the seller says they will provide in return for your money. If you can demonstrate that they have not provided one or more elements of what they said they would provide ( the specification) then you would have a basis for a claim for breach of contract and as a result, a chargeback. It will be important to be able to show that the support element was specifically included as part of the contract whether on a paid or included basis for this purpose

Customer: replied 15 days ago.
Thank you for clarifying. The only remaining issue then, would be determining a fair amount for the chargeback based on what a court would consider fair. The equipment has been delivered however as an important part has failed, it can't be used the way it was intended and without that part working, there was no point buying the equipment.To repair the current issue would cost around £500 - £800 but that doesn't take into account any other issues that may happen over the course of the 2 year warranty. A 2 year maintenance contract from a third party would cost around £1000 a year.Are you able to give me any guidance on what would be considered reasonable to reclaim for the failure to provide after sales support and honour the warranty.Thanks
Gordon

Was the maintenance to be provided within the price of the equipment or as a paid for extra? If the latter what was to be the cost of the service?

Customer: replied 15 days ago.
It was as part of the purchase. Not an extra, although it was only stated on the product listing - but that was linked to from the order confirmation. The only actual contract was the trade assurance contract and this issue falls outside of that. I have messages from Alibaba customer service where they agree that the company state they will offer a 2 year warranty and after sales service. Even without a warranty being specifically mentioned in a contract, wouldn't the fact the product listing page states that a 2 year warranty and technical support will be offered, constitute grounds for mis selling or false advertising which I would assume would also be grounds for a charge back.

If the warranty is included on the product advert then it will be an included term in the specification of the contract. Accordingly it seems to me the correct calculus for determining loss would be the cost of replacing the part(s) that have malfunctioned and the cost of procuring an equivalent service contract from an alternative contractor for the period that it was offered by the original supplier. Evidence of these costs is likely to be required along with the offer to supply the service by the original supplier.

Customer: replied 15 days ago.
Thank you Joshua. That clarifies things. I just have one final question in relation to the Alibaba terms of service and whether that changes anything. Here is the Alibaba standard terms of use contract for using their site and service.https://rule.alibaba.com/rule/detail/2041.htm?spm=a2756.order-detail-ta-ta-b.0.0.4e682fc2PIl1DjCould you advise whether anything in section 7 would weaken my legal position. Basically Alibaba are saying the buyer assumes all risk (including cases where the the seller fails to provide a warranty) and that Alibaba isn't responsible for any problems.I would think this is in conflict with UK consumer or commercial law as it doesn't seem right that a contract can just absolve a company of any responsibility in the event that a product ordered through that service isn't fully delivered in accordance with the purchase agreement. However, please can you let me know whether this may change anything and by purchasing through Alibaba and thereby agreeing to this, I would not be able to request a charge back.Having said that on the Transactional Service Agreement here, it does mention chargebacks and that sounds more positive: https://rule.alibaba.com/rule/detail/2054.htmIt does say under clause 3.6 the following:"If there is any chargeback or reversal of any payment requested by a payment service partner, Seller agrees that Alibaba.com has the right to refund the money so requested by the payment service partner without liability to Seller"Please can you comment on these point and whether the Alibaba terms of service or transactional service agreement terms would pose a potential problem with requesting a chargeback.ThanksGordon

I do not think you would have a claim against Alibaba itself but you do not propose to pursue one from what I understand. I cannot see anything there would prevent a claim against the supplier or use of the chargeback scheme

I hope the above is of some assistance but if you have any further questions, please revert to me.

Customer: replied 14 days ago.
Thanks Joshua. Your advice was very helpful and I'm going to proceed with the chargeback claim. The supplier have taken down the listing but I had saved a screenshot of the listing and also got messages from Alibaba confirming that the 2 year warranty is stated. I also got a response from Alibaaba today saying I need to communicate directly with the supplier regarding my complaint, even though they won't respond to me. So I've exhausted all other options so a chargeback is the only remaining option. I'll be submitting the chargeback request tomorrow. Thanks. Gordon

I'm glad the above answers all your questions for now. If you have any follow up questions please reply back to me.

Thank you again for visiting JustAnswer and see you again in the future I hope.

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