Nintendo has won and doesn't need to offer refunds in EU because preloads

[Thaldor]

Probably almost everybody knows how different officials in different countries think about refunding digital goods (mainly US being US and just rising their hands and EU and Australia "forcing" companies to make refunds available because consumer safety). Nintendo has somehow managed to zigzag around all of this and its eShop (for Switch, Wii and handhelds) stands as the only bastion in the grey mass as a place where refunds are completely absent for digital goods even with preorders.

 

From My Nintendo Store Terms of Sale:

Quote

The right of cancellation will expire prematurely in the case of contracts

• for the delivery of sealed goods, that for reasons of health protection or hygiene are not suitable to be returned, where the seal has been removed following delivery;
• for the delivery of sound or video recordings or software (such as PC and video games) in sealed packaging, where the seal has been removed following delivery;
• for the delivery of digital content not on a physical data carrier, where we have started to perform the contract, after you have expressly agreed that we commence performance of the contract before expiry of the cancellation period and have confirmed that you know that by your agreement to commencement of performance of the contract you are losing your right to cancel;
• for the provision of services where we have delivered the complete service and only commenced performance of the service after you provided your express agreement thereto and at the same time confirmed that you know that in the event of complete performance of the contract by us you lose your right to cancel.

 

How is this possible? Easy, by German law the digital goods apparently are refundable as long as there hasn't been any "beginning of performance", in other words as long as the user doesn't have a single bit of the software/video/whatever. So, that's why when Nintendo has a preorder, you at least get an icon to your device to show that you have preordered a game and most of the time even preloading has already happened and you have all (or some) of the games code and assets in encrypted format on your device and as so the delivery and the use of the digital good has started and Nintendo don't need to give refunds.

 

Quote

According to Norwegian gaming site PressFire.no who has followed the case for two years now, Nintendo has won the court case against Norway and Germany. The decision has been appealed, but the next round won't happen for up to a year and a half. Both the Norwegian and German authorities are very unhappy with the outcome. Apparently they can't say too much about the contents of the case thanks to restrictions when multiple countries work together like this.

 

German court has "now" judged that this is fine and good way to handle customers (original source in Norwegian , in comments summary in English). This isn't final verdict but for one and half years this will be the way before there's any process with the appeals. To make things clearer Norway's Consumer Rights Council is after Nintendo for breaking their consumer laws (as Norway is part of EEC, Nintendo breaks EU consumer laws) but thanks for some global mumbojumbo legal things that make as much sense as "diplomatic immunity" today, Norway must drag Nintendo's ass to German court because that's where Nintendo of Europe's HQ is and then things get really complicated because now it's Norway and Germany vs. Nintendo and because of it things like actual court papers are marked secret and everything is done behind closed doors (this is why we hear about this now and not in December when the verdict was given).

 

------------

Personally I couldn't give a cent for this. After buying 3DS XL I have more or less lost any interest on anything not-retro Nintendo(n't) brings up just because with free-to-play games Nintendo(n't) has shown that it can be even worse than mobile platform (the badge arcade and the couple Pokemon games, like holy ****, if you don't know what a cash grab is then there's your great examples) and then the way Nintendo(n't) EU/NA handled the problem of not being able to register a new Pokemon online account when Moon and Sun were released (first they deny any problems being present, then they say some people have problems and at last they fix the problem and compensation for missing out events and stuff for couple weeks was nothing because there was no publicly announced problem). And it's not even that the current Nintendo(n't) has bad customer service, I remember Nintendo(n't) having very bad customer service back when SNES was a thing (I managed to get DOA SNES and the local videogamestores manager agreed to change mine to a brand new on his own account because last time SNES was DOA it took 6 months to get a replacement one to the customer).

Also I was kind of expecting this. After all it isn't very uncommon to hear that "when digital goods are delivered, they cannot be refunded" in multiple cases and it was only a question of time when someone tried to use that to stop people from refunding preorders. That guy being Nintendo(n't) isn't also any surprise to me just because Nintendo(n't) is Nintendo(n't), kind of same as hearing that some game company is causing problems for another company to get insurances in Japan you just know it has to be Konami, like you don't directly expect it but then again when it's said it's as clear as it can be.

[williamcll]

Perhaps that is why nintendo piracy is so prevalent.

[suicidalfranco]

Good guy Nintendo

 

Spoiler

/s

 

[SpikeSpiegel]

This is why Nintendo doesn't care about it's consumers

[NumLock21]

So Nintendo’s preorder isn’t really a preorder. It’s more of an actual purchase, Where it immediately starts to download, even though the game is locked away until it’s release date. Because it started to download it’s come consider as “being used", so they denied the refund. This is some grade a horse sh*t. The switch is a pathetic console with only 32gb of storage and potato graphics.

[Thaldor]

22 minutes ago, NumLock21 said:

So Nintendo’s preorder isn’t really a preorder. It’s more of an actual purchase, Where it immediately starts to download, even though the game is locked away until it’s release date. Because it started to download it’s come consider as “being used", so they denied the refund. This is some grade a horse sh*t. The switch is a pathetic console with only 32gb of storage and potato graphics.

Basicly this. While Nintendo(n't)s TOS/EULA/whatever abides EU consumer law by having refund possibility, their services are build so that the refund can be denied right after purchase because without any prompts or warnings the preload starts.

This is also kind of big issue with German consumer law that has left open that kind of loophole, apparently Norway has same kind of law in place like Finland where receiving item is considered to happen when the item is usable (IIRC one Finnish court case was about some custom bicycle which had its wheels delivered as backorder later than the rest of the bike itself and while the bike itself had been in customers possession over 14-days and its return window closed when the wheels arrived, the court verdict was that the return window starts from the date the wheels were delivered because the bike was unusable without the wheels).

I so would love to see this case dragged all the way up to the EU courts where most likely Nintendo would have really bad time considering the EU laws on the matter are very clear and now the thing seems to be that Germany just has bad adoption of those laws (while EU makes the framework for the laws the single countries have their freedom to implement those laws as they seem fit as long as the spirit of the law isn't changed and certain things are fulfilled, that's why they are called directives).

[kaiju_wars]

I love my Switch, but this is why outside of Smash Bros, which I needed the game release date for a smash party, I don't preorder digital titles.  The extra hour of convenience aren't worth it so it can be ready release date. (for me anyways).

 

I very rarely preorder.  Only third party game outside of the Ace Combat series I've preordered was Wolfenstein Youngblood, granted it was on sale for preorder during Steam Summer Sale, so that should have been a sign.

But outside of Ace Combat and Nintendo first party IPs, I don't really pre-order.  I grabbed Animal Crossing New Horizons through Target, and I can get a refund up till release date, and iirc, even a couple days after.

[mr moose]

48 minutes ago, NumLock21 said:

So Nintendo’s preorder isn’t really a preorder. It’s more of an actual purchase, Where it immediately starts to download, even though the game is locked away until it’s release date. Because it started to download it’s come consider as “being used", so they denied the refund. This is some grade a horse sh*t. The switch is a pathetic console with only 32gb of storage and potato graphics.

That's what I got out of it,   fortunately it doesn't seem final yet and few smart lawyers should be able to argue that just installing the software (or a preload button) does not contistiute a "performance" of the product.  Also all the current laws stipulate that the consumer has to agree with thee no refund bit before purchase (hard if Nintedo don't give consumers the option not to), however there is still room for consumers to argue the sale is illegal on those grounds.

 

 

I would like to see this fly through the  Australian system where it specifically states user agreements are not allowed to be detrimental or one sided, I.E the sale agreement can't force the consumer to waive refund rights. 

 

 

[NumLock21]

@Thaldor @mr moose
Right here in the US if a refund is denied, they have to give store credit for the amount that was spent. They cannot denied both. Not sure about over there.

 

@kaiju_wars

digital preorder is pointless. Physical ones, then yeah because it comes with extra goodies and don’t have to pay full price. Minimum for preorder is $10 to $15, pay rest when came comes out.

[Brooksie359]

1 hour ago, NumLock21 said:

So Nintendo’s preorder isn’t really a preorder. It’s more of an actual purchase, Where it immediately starts to download, even though the game is locked away until it’s release date. Because it started to download it’s come consider as “being used", so they denied the refund. This is some grade a horse sh*t. The switch is a pathetic console with only 32gb of storage and potato graphics.

Nobody buys the switch for its graphics. They buy it for the games and a nice portable device. The 32 GB is kinda crapy but you just have to buy more memory and considering its price I dont find it too unreasonable. 

[NumLock21]

3 minutes ago, gabrielcarvfer said:

But the games are great

I do like Mario kart and mario, but the storage and graphics are a joke. 

[NumLock21]

1 minute ago, Brooksie359 said:

Nobody buys the switch for its graphics. They buy it for the games and a nice portable device. The 32 GB is kinda crapy but you just have to buy more memory and considering its price I dont find it too unreasonable. 

Stop defending a company that screw with its customers. It’s because the regular Joe and Jane are too ignorant, therefore Nintendo can get away with a crappy device and sell it for $299.

[kaiju_wars]

26 minutes ago, NumLock21 said:

digital preorder is pointless. Physical ones, then yeah because it comes with extra goodies and don’t have to pay full price. Minimum for preorder is $10 to $15, pay rest when came comes out.

I got it for the journal/calendar also.  I thought it was pretty neat.  Otherwise I'd have just ended up getting the game release date anyways.

[yolosnail]

The only reason I can see to preorder a digital game is if you have a very slow internet connection and you want to play it at launch. Otherwise there is absolutely no need.

 

Even with physical games, I see no reason to preorder a game. If you think you HAVE to play a game on launch day, then maybe you have a problem!

 

It's like people who will go to a midnight release of a movie. Seeing it hours, or even days before everyone else doesn't make any difference, the movie isn't going to change. The only thing it does is make you the absolute prick that goes around and says "I went to the midnight release of *insert popular movie here*, it was SOOOOOOOOO GOOOOOD!" 

 

If a game/movie is truly that good, then surely you can wait for it!

 

Anyway, back on the topic of Nintendo.... GFY

[ARikozuM]

Nintendo can sincerely fuck themselves. Refunds should be available for at least 7 days and up to X number of hours of playtime, no exceptions. Downloading a file should not be considered "used" or played. Also, it's a digital file so it doesn't degrade and the key can be revoked easily on refund request. 

[SpikeSpiegel]

1 hour ago, ARikozuM said:

Nintendo can sincerely fuck themselves. Refunds should be available for at least 7 days and up to X number of hours of playtime, no exceptions. Downloading a file should not be considered "used" or played. Also, it's a digital file so it doesn't degrade and the key can be revoked easily on refund request. 

Well Nintendo only cares about your $$$ not it's consumers. So basically Nintendo wants to lose more loyal consumers.

[Kawaii Koneko]

Frankly, I'm fine with this. A company should be able to set whatever terms for their products they want. If you don't like a company's refund policy, then don't buy it. Simple as that. Don't expect the government to step in and make it so you can get a free trial.

[ARikozuM]

Just now, Kawaii Koneko said:

Frankly, I'm fine with this. A company should be able to set whatever terms for their products they want. If you don't like a company's refund policy, then don't buy it. Simple as that. Don't expect the government to step in and make it so you can get a free trial.

No. If every company were to do this, what would happen to consumers? We would have no power at all. Voting with your wallet does not work especially against a company that has some 8 decades' worth of money to sit on. 

[Kawaii Koneko]

4 minutes ago, ARikozuM said:

No. If every company were to do this, what would happen to consumers? We would have no power at all. Voting with your wallet does not work especially against a company that has some 8 decades' worth of money to sit on. 

Except that even with the looser regulation in America, there are still plenty of companies with very generous return policies, even on digital goods. There will always be businesses that want to standout among the competition and good customer service and generous return policies are on of the ways they will do it.

[kaiju_wars]

14 minutes ago, Kawaii Koneko said:

Frankly, I'm fine with this. A company should be able to set whatever terms for their products they want. If you don't like a company's refund policy, then don't buy it. Simple as that. Don't expect the government to step in and make it so you can get a free trial.

I could be considered a pretty big Nintendo fan and I'm against it.

Nintendo should catch up to their competitors. All of them have refunds in some way.  Even Sony is somehow better, and Sony makes it known they hate the consumer.

 

Inb4 "NInteNDo IsnT iN CoMpeTiTioN wiTH MiCRoSOfT and SonY!"  They are.  Just because they go about it in a different route doesn't make them less of a competitor.  Nintendo, just as Microsoft and Sony, would rather you buy their platform over the others.  They'd rather you play games more on their platform than the others.  They compete with the others through a different means than just raw horsepower. 

[Kawaii Koneko]

7 minutes ago, kaiju_wars said:

I could be considered a pretty big Nintendo fan and I'm against it.

Nintendo should catch up to their competitors. All of them have refunds in some way.  Even Sony is somehow better, and Sony makes it known they hate the consumer.

As a matter of company policy I think they should grant refunds on pre-orders. I just don't think the government should be involved.

[ARikozuM]

6 minutes ago, Kawaii Koneko said:

As a matter of company policy I think they should grant refunds on pre-orders. I just don't think the government should be involved.

The government is supposed to serve the people. If the people want a universal system for refund policies, those are the guildelines to work off. If a company wants to make a better lengthier system, good on them. Setting a lower limit is important for everyone. If everything will move to digital, this must occur to protect against early stage quashes. 

[Kawaii Koneko]

44 minutes ago, ARikozuM said:

The government is supposed to serve the people. If the people want a universal system for refund policies, those are the guildelines to work off. If a company wants to make a better lengthier system, good on them. Setting a lower limit is important for everyone. If everything will move to digital, this must occur to protect against early stage quashes. 

The government isn't there to just give us everything we want so we are absolved of all risk or personal responsibility. They should protect us against crime, foreign invaders, maintain roads, etc. 

 

Again, if you don't like a company's policies, don't shop there. Being able to play video games isn't a necessity in life. Sometimes as consumers we just have to do without if we don't agree with a company's business practices. It's just part of life.

[ARikozuM]

13 minutes ago, Kawaii Koneko said:

The government isn't there to just give us everything we want so we are absolved of all risk or personal responsibility. They should protect us against crime, foreign invaders, maintain roads, etc. 

 

Again, if you don't like a company's policies, don't shop there. Being able to play video games isn't a necessity in life. Sometimes as consumers we just have to do without if we don't agree with a company's business practices. It's just part of life.

Guess what? This also applies to other things digital. This applies to movies, POS software, etc. If every company adopts the same policy, it becomes a detriment to every consumer. 

 

The gov't wouldn't be "giving" us what we want. Things happen and you might need to return an item (wasn't what you thought it was, life hit you hard, etc.). 

[Kawaii Koneko]

6 minutes ago, ARikozuM said:

Guess what? This also applies to other things digital. This applies to movies, POS software, etc. If every company adopts the same policy, it becomes a detriment to every consumer. 

 

The gov't wouldn't be "giving" us what we want. Things happen and you might need to return an item (wasn't what you thought it was, life hit you hard, etc.). 

But every company won't adopt those policies. They will use generous return policies to stand out among their competitors. Even now that's how it is. Wal-Mart or Amazon doesn't have to be so lax with their return policies but they do it because it's good for business. It's part of the reason they stand out above their competitors. 

 

Sure, in a case where you can only buy a product from one place, you may just have to live without that product but that is life. Nintendo can get away with this because where else are you going to go for a digital Nintendo game? But it's up to you to decide how bad you want a Nintendo product.