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Old 02.02.2015, 16:23
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Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpose?

Hello,

I was hoping to get a little advice please on where I stand... I know my rights back in the UK but am a little rusty here and am not sure if the retailer are taking me for a ride or if it is the best I can expect in Switzerland).

Without going into to much detail, I purchased two of the same electronic product from one of the larger online retailers in Switzerland at the end of last year.

This product has recently (last week) been discovered to have been mis-advertised... it does not function as originally advertised and the manufacturer have admitted to this, claiming a mis-communication between their marketing and engineering teams.

This functional change causes performance issues with the product that are observable now and will only worsen with time. This would hold a valid claim for not fit for purpose in the UK.

Retailers in other countries are accepting returns for full refund / exchange for another model without issue and at no cost to the consumer.


Digitec have agreed to accept the return outside of their usual return window, but want to refund at current market value and charge me a 10% restocking fee.

For reference, due to the CHF/EUR, the CHF price of these units has dropped 10-15%.

Price was: 413 + 399 = 812 CHF at the end of December
Current price: 369 + 359 = 728 CHF

- 10% that would be 655 CHF

So, in essence - they want to charge me 157CHF for their mis-advertisement.

There is a higher model that does not suffer from this performance issue. Had this mis-advertisement / performance issue been public at the time of purchase, I would have gone straight for the higher model without hesitation. Despite the issue seen with this model, I will still be upgrading to the higher model.

Is this, in any way, shape or form acceptable in Switzerland?

The original manufacturer have acknowledged the "mis-communication" and there are many cases of the performance issue reported, clarified and returns accepted easily by retailers in other countries without penalty. Digitec have admitted that they are aware of the issue and yet still want to charge me for it.

Any advice would be greatly appreciated, thank you.
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Old 02.02.2015, 16:25
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Re: Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpo

Just tell us what it is .. ?
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Old 02.02.2015, 16:27
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Re: Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpo

2x Nvidia Graphics cards - GTX970

memory allocation issue

severe stuttering caused when using over 3.5GB video ram

advertised as 4GB 256bit card

it's actually 3.5+0.5GB 224+32bit allocation.

When this "extra" 0.5GB is in active use, it causes severe stuttering.


Under the same usage scenario, the GTX980 model does not suffer and has full 256bit wide access to all of it's 4GB vram.
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Old 02.02.2015, 16:54
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Re: Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpo

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I was hoping to get a little advice please on where I stand... I know my rights back in the UK but am a little rusty here and am not sure if the retailer are taking me for a ride or if it is the best I can expect in Switzerland).
This is no time for dibbling. It's time to be polite but firm. In my experience, Digitec do respond to a bit of polite-but-firmness. I had a similar case with them over a document scanner which didn't do quite what it was supposed to. Best to keep everything in writing, though, and preferably in English (more hassle for them to keep responding to your emails).
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Old 02.02.2015, 17:26
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Re: Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpo

I'm hoping this is just their first attempt to save themselves cost/hassle & it will develop further to a satisfactory conclusion. I am just not familiar with Swiss consumer law and curious what their obligation really is. I'm sure as it is not functioning as sold/advertised, as also confirmed by the manufacturer... then they must be responsible for full refund.

Here is the email chain so far:

Initial query from me on Friday morning:
Quote:
Hello,

I am sure you are already aware of the issue with regards to how the memory allocation on the GTX970 has been mis-advertised and is causing stuttering performance issues when the last 0.5GB of RAM is in active use.

Some retailers and add-in board partners have already announced that they will be accepting returns for refund or replacement.

How are you planning to handle this?

I have noticed the stuttering myself and an interested in changing my 2x GTX970 for 2x GTX980.

Thank you,
First reply from them this afternoon:
Quote:
Dear XXX

Thank you very much for your message.

You can return us the card to the normal conditions, if you have the original packaging and all accessories:

If the goods have only been unpacked briefly and the original packaging and all the accessories are still at hand a return would be possible. The product will then be offered as used in our online shop which is why we cannot refund the full purchasing price. In this case the deduction is set to be 10% of the current price (at most the purchasing value) and at least CHF 10.-. We do not earn anything in this process and it serves only to cover our costs.

Please return the item within seven days. After that period this offer will no longer be available.

You can send the item well packaged along with the original packaging and accessories to the address mentioned below or bring it directly to one of our stores. If you choose the latter it is very important that you take a “K-Ticket” at the entrance of the store. This ensures that you will be assisted by one of our customer service representatives who will decide if a return is possible. If you want to send in the product by mail please enclose your receipt along with this e-mail conversation so that our RMA department is informed completely. The address of our RMA department is:

Galaxus (Schweiz) AG
RMA digitec Retouren
Industriestrasse 21
CH-5610 Wohlen


Please note that we can only confirm a return after one of our employees has examined the product. Should the item show signs of usage or has not been set back to the manufactory settings with removal of all passwords, the deduction may turn out to be higher or in extreme cases we may have to decline a return completely. If everything seems to be all right we will take back the goods and refund the current price minus the mentioned deduction of 10%.

Thank you very much for your interest in our products and services. We would be glad to answer any further questions that might arise.

Kind regards
My reply this afternoon:
Quote:
Hello,

This is not acceptable.

The specifications of the card have been mis-advertised by the manufacturer, add-in-board partners and subsequently you, the retailer. This mis-advertisement has led to the card not functioning as described and is subsequently not fit for purpose, as demonstrated in games which go above the 3.5GB VRAM threshold. An issue which is demonstrated to be purely due to the memory issue, as recognised by Nvidia, add-in-board partners and other retailers.

I can only accept a full refund on this otherwise I will be forced to pursue further action. I am happy to accept it as a credit note if you treat me as you should treat your customers, otherwise I will be forced to take my business elsewhere. I am happy to (and plan to) upgrade to GTX980 as these cards do not have this issue.

Had the issue been known at the time of purchase, I would have purchased GTX980 cards immediately, but due solely to mis-advertisement I was mis-led into purchasing a different card which cannot perform as advertised.

You may reclaim your costs from your supplier & they will continue through their chain to reclaim their costs... as is happening with many retailers at this time.

You cannot pass costs onto the customer for your mis-advertisement.

If you need to escalate this to your management, then please do so.

Regards,
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Old 02.02.2015, 17:29
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Re: Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpo

contact Nvidia direct and get them to replace it?
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Old 02.02.2015, 17:35
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Re: Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpo

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contact Nvidia direct and get them to replace it?
It doesn't work that way, nvidia don't produce the whole cards, only the chip that goes on the card.

AIB partners (MSI/Gigabyte/EVGA/Asus/etc) produce the cards and sell wholesale to suppliers.

Suppliers then distribute to retail channels.

Only EVGA offer direct replacement/upgrade system, unfortunately - neither of these cards are EVGA.

All other manufacturers deal only through suppliers -> retail.

In the other countries' laws that I am familiar with, my contract of sale is with the retailer and not the manufacturer... so I must chase the retailer/supplier to move forward.

Even if it was a general RMA direct with AIB partner, they would only replace like-for-like and there is no "fixed" version of the GTX970... and they won't replace it with a GTX980.
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Old 02.02.2015, 17:52
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Re: Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpo

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Here is the email chain so far:

First reply from them this afternoon:
A glimmer of hope from that is that it looks like a standard response with no real thought gone into it.

Hopefully your esacalation will involve a human actually reading your mail.
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Old 02.02.2015, 18:00
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Re: Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpo

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A glimmer of hope from that is that it looks like a standard response with no real thought gone into it.

Hopefully your esacalation will involve a human actually reading your mail.
Yup - it does appear a little basic/generic... hoping for proper resolution
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Old 02.02.2015, 18:20
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Re: Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpo

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Yup - it does appear a little basic/generic... hoping for proper resolution
Suggest you buy GTX980 cards for proper resolution.............
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Old 02.02.2015, 18:27
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Re: Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpo

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Suggest you buy GTX980 cards for proper resolution.............
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Old 02.02.2015, 23:26
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Re: Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpo

Generally (legally) speaking, Digitec is allowed to correct the blemish/defect ("Besserung"). Assuming they can't (at least, not within reasonable time) you are allowed to refuse the broken product. I think Digitec in turn is allowed to offer coupon(voucher?) or cash, at their discretion, but since you're gonna buy 2x the other cards it seems cash/coupon should be all the same to you.

The cards are a broken product compared to their ads, they already admitted that much, there's no way you should accept any kind of cost, not even the postage when you send it back. The fact that you are going to buy (you are, aren't you) the next-higher card that is not subject to that defect is proof positive that you are not exploiting some silly typo, but instead that it's in fact a critical attribute/defect.

No reason for you to give them any leeway, stay firm and polite.

Legal situation:
Obligationenrecht, Fahrniskauf (=any non-real-estate purchase), Article 197:
paragraph 1: The seller is liable for the promised attributes of the good [...]
paragraph 2: He [the seller] is also legally responsible when he didn't know about the defect(s).

Article 201:
The buyer must advise the seller of any defects as soon as he becomes aware of them [rough translation]

Articles 205-210:
Deal with procedures to remove defects. Too much for me to translate, the core concepts are mentioned above. Later articles may also apply, depending on particular situation of course.
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Old 02.02.2015, 23:43
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Re: Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpo

Thank you
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Old 03.02.2015, 00:19
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Re: Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpo

The difficulty in this case is whether the product is really broken. It advertises 4GB of RAM and there appears to be 4GB.

http://www.pcper.com/reviews/Graphic...ations-GTX-970

Last edited by Phil_MCR; 03.02.2015 at 14:22.
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Old 03.02.2015, 14:39
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Re: Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpo

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The difficulty in this case is whether the product is really broken. It advertises 4GB of RAM and there appears to be 4GB.

http://www.pcper.com/reviews/Graphic...ations-GTX-970
It cannot effectively use all 4GB.

Whenever the "last" 0.5GB is in active use, it causes severe stuttering.

It is also advertised as having a full 256bit memory bus width, with the total 256bit bandwidth actively advertised. This is not the case, it is split into 224+32bit sections. The card is able to address both, however whenever accessing the 512MB section through the 32bit buswidth, there is delayed cross-talk causing issues with stuttering and textures popping in at random intervals. For example, where part of the visible distance in a game should have loaded while it is the equivalent of 500 meters away, it will pop into view when it is closer to you instead.

There are quite a few videos showing this discrepancy, along with major computer-media articles also demonstrating this. And demonstrating that this issue is not present on the GTX980.

Nvidia, the manufacturer of the chips, have admitted it as a "miscommunication" between their engineering and marketing departments and now (months after release) explained how this memory addressing works. Giving them the benefit of the doubt, I assume they did not expect/test the usage scenarios that would cause these performance issues.

Many other retailers in other countries, along with 80% of the add-in-board partners (the people who build the board with the chips from Nvidia) have decided to accept returns based on this information. This is still relatively new, so I expect the other 20% are only catching up.

With such widespread support for the consumer over this issue, I will be rather upset if Digitec try to cause any issue. I am still awaiting a reply to my last email.

I have noticed the issue on a few games so far and over the coming months/years... the issue will become more and more troublesome.

The only way they can curb the issue is to send out a software update that cuts of access to this last 0.5GB (or my suggestion would be to hold the operating system visuals in that section as it doesn't require high bandwidth and only allow games or other vram utilising software to access the first 3.5GB). However, I don't think they will do that as other users won't be happy with it.

Had they sold the GTX970 as a 3.5GB/224bit or 3GB/192bit graphics card, then they would still have sold 10s of thousands of units... and I would still have been happy with that and bought the cards in either of those configurations, in fact!

What they have done however, is release it in a specification that the hardware does not truly support. A configuration that causes a kind of issue that some people are more sensitive to than others (it happens to be a deal breaker for me). And also, had this been general information (as it should have been) at the point of sale, I would have purchased the higher-spec model without hesitation.

It is not digitec's fault, but they are the ones who have to deal with it & subsequently following the chain back to Nvidia.
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Old 03.02.2015, 16:23
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Re: Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpo

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It cannot effectively use all 4GB.
Apple had a similar issue with one of their iOSs recently. The iOS occupied so much of the native RAM that there was only about 64kB left for other stuff. I wonder how Digitec dealt with that.
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Old 03.02.2015, 16:39
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Re: Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpo

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Apple had a similar issue with one of their iOSs recently. The iOS occupied so much of the native RAM that there was only about 64kB left for other stuff. I wonder how Digitec dealt with that.
That's not really the same comparison though, all of the RAM was available to be utilised and utilised at full speed... it's just they were good at using it.

The issue here is when you actually use the advertised/installed ram, there is significant performance degradation.

Others have tried comparing it to formatted hard drive sizes being smaller and operating systems taking up memory on hard drives etc... the comparison just isn't the same. In those cases they work, they simply use what they are given/allocated in hardware.
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Old 03.02.2015, 16:49
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Re: Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpo

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Generally (legally) speaking, Digitec is allowed to correct the blemish/defect ("Besserung"). Assuming they can't (at least, not within reasonable time) you are allowed to refuse the broken product. I think Digitec in turn is allowed to offer coupon(voucher?) or cash, at their discretion, but since you're gonna buy 2x the other cards it seems cash/coupon should be all the same to you.
It's this stupid rule that puts me off buying anything electrical in Switzerland.
In other places they replace straight away and worry about the cost to themselves later (which they obviously claim back from the manufacturer).

Sometimes it's really obvious that they're not going to be able to repair the device and you will be getting a new one.

But, they still send it away for two weeks and so you're without the device for two weeks and then you have to go back to the shop again to pick up the new one.

This has happened to me with two phones here.

Other stuff that hasn't worked properly just gets consigned to a box in the cellar as it's just such a pain to get anything changed.
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Old 04.02.2015, 17:58
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Re: Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpo

I've had a similar problem with Digitec- it seems to be a standard line of theirs. In my case, I bought a Lacie cloudbox that started to fail ~2 mos in and has totally bricked now.

They initially tried to defer responsibility to the manufacturer, and when I informed them of their responsibilities (thanks Urs Max!), they have gone to the 10% off issue.

I'm still pushing on the line that they are responsible, and am waiting to see how they respond (I have a real human now, thankfully), but on the whole it's pretty shit customer service.

Bad practice for an online retailer, really. I've switched to buying at real stores because of it, after having been a very good customer over the past two years.

My problem is compounded by the bricked box not letting me scrub my data, and I'm sure as hell not sending 3tb of my life to Digitec for processing...

Ah well, 18 mos of haggling to go before the warranty expires.
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Old 11.02.2015, 18:00
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Re: Consumer rights in Switzerland - where do I stand on mis-advertised/fit for purpo

If it hasn't been resolved yet you may want to send them a registered letter, outlining your position and announcing that you reserve the right to bill them for any future expenditures and time invested (at a reasonable rate, say 150CHF per hour).
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