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Dwayne B.
Dwayne B., Lawyer
Category: Consumer Protection Law
Satisfied Customers: 26689
Experience:  Practicing for over 20 years and handled many cases and trials for consumers.
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I made a pre-order online for a product on August 9, 2013.

Resolved Question:

I made a pre-order online for a product on August 9, 2013. The product was still being developed at that time and they were advertising: "Shipments begin: October 20-30, in order of purchase". Up until today, Oct 23, they claimed they believed they would make their deadline. Today they said they are going to be delayed until at least mid-November. I'd like to cancel my order and get a full refund. Buried in the fine print in the "terms of sale" page on their website it says:
"(a) Guaranteed Baby Jet Delivery Dates – Batch 1. All of the 550 Baby Jet units from Hashfast’s first production batch are guaranteed for delivery by December 31, 2013. If Buyer ordered one or more units of such Baby Jets, and Hashfast does not deliver such units by that date, then Buyer may cancel the undelivered portion of the order at Buyer’s request and Hashfast will refund the payment for the units that Buyer purchased but did not receive and cancelled. This cancellation and refund is Buyer’s sole and exclusive remedy for Hashfast failing to deliver by the December 31, 2013 guaranteed delivery date. To avail itself of this remedy, Buyer must cancel the order before such unit(s) are delivered by Hashfast, and in any case before March 31, 2014."
The "babyjet" is the product that I ordered. Are those terms of sale legitimate and I can not get a refund unless they are delayed to Dec 31? All of there advertisement says "Oct 20-30 shipping" as does the e-mails I've received from them. The invoice I have from them says nothing at all regarding the date of shipment. I never signed a contract or anything with them. It was simply a purchase made on their website. Their terms of sale also say that I must use arbitration if there are any issues. Is this all legitimate?
Submitted: 8 months ago.
Category: Consumer Protection Law
Expert:  Dwayne B. replied 8 months ago.

Dwayne B. :

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification.

Dwayne B. :

Do you have to click through or accept these terms of sale when making a purchase?

Customer:

I don't recall, let me check the website.

Customer:

Yes, you have to check a box that says you agree to the "terms of sale"

Dwayne B. :

That makes you susceptible to the terms but when you read them that doesn't prevent you from asking for a refund.

Dwayne B. :

It may make the arbitration mandatory but it doesn't mean you can;t cancel and get a refund.

Customer:

well it says:

Customer:

"(a) Guaranteed Baby Jet Delivery Dates – Batch 1. All of the 550 Baby Jet units from Hashfast’s first production batch are guaranteed for delivery by December 31, 2013. If Buyer ordered one or more units of such Baby Jets, and Hashfast does not deliver such units by that date, then Buyer may cancel the undelivered portion of the order at Buyer’s request and Hashfast will refund the payment for the units that Buyer purchased but did not receive and cancelled. This cancellation and refund is Buyer’s sole and exclusive remedy for Hashfast failing to deliver by the December 31, 2013 guaranteed delivery date. To avail itself of this remedy, Buyer must cancel the order before such unit(s) are delivered by Hashfast, and in any case before March 31, 2014."

Customer:

doesnt that mean no refunds before Dec 31

Dwayne B. :

There is a concept of law wherein if someone provides a contract that has an ambiguous term then that term is construed against the entity providing the contract.

Customer:

For people who are asking for refunds, they have been responding "no refunds"

Customer:

and that the Oct 20-30 was the date they expected to begin shipping, not a guarentee.

Dwayne B. :

That language doesn't say you can't cancel if it isn't delivered by 10/31 it just says you can if it isn't delivered by 12/31

Customer:

oh, you are right, that is interesting.

Dwayne B. :

You can still pursue it, although it may have to go to arbitration.

Dwayne B. :

But if you didn't see or understand the arbitration requirement then you can argue there was no meeting of the monds.

Dwayne B. :

minds

Customer:

here is the full terms of sale: https://hashfast.com/checkout/terms-of-sale/

Customer:

section 3d might be a problem?

Customer:

I dont see anywhere where it says you can not cancel the order beforehand, hm

Dwayne B. :

That makes it ambiguous and the court is bound to resolve that in your favor.

Customer:

oh it does say: "No order or any part thereof may be rescheduled or cancelled without Hashfast’ prior written consent except for cancellations permitted under this Section 3."

Customer:

that isnt good right?

Customer:

bad for me

Dwayne B. :

That doesn't matter you just send then written notice that you are cancelling the order and requesting a refund.

Dwayne B. :

How much $ are we talking about?

Customer:

Roughly $6,000

Dwayne B. :

You should probably consider hiring a local lawyer to send them a letter explaining why you can cancel now.

Dwayne B. :

Why the term is ambigous and why that works against them.

Customer:

Ok, what part do you feel is ambigous. The first part?

Dwayne B. :

The part about canceling and the delivery date

Customer:

yes, ok, thank you

Dwayne B. :

You're welcome. You have a good argument.

Dwayne B., Lawyer
Satisfied Customers: 26689
Experience: Practicing for over 20 years and handled many cases and trials for consumers.
Dwayne B. and 10 other Consumer Protection Law Specialists are ready to help you
Expert:  Dwayne B. replied 8 months ago.
Thank you very much for the Positive Rating. Please come back and visit us if you have any new questions and feel free to ask for me by placing “FOR DWAYNE B” in the subject line or as the first words of your question and I will pick up as soon as I see it.

Also, I’d ask you to consider issuing a high rating (9-10) when you receive your customer satisfaction survey as that ensures I can continue to assist people in this category.

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