Mario Kart code missing from Nintendo Switch box bought in Smyths

[Sunnysoutheast]

I bought a Nintendo Switch at the end of November in Smyths for my children for Christmas. It was a special deal which included the game Mario Kart. When I bought the Switch box I was told by the Sales assistant in Smyths that the Mario Kart game was in the box. We didn't open the Nintendo Switch box until Christmas Day. There was a code for a free 3 month membership to Nintendo online in the Switch box but no code for the free Mario Kart game.

When we went back to Smyths the sales assistant said I'd need to get in touch with Nintendo UK directly. I got in touch with Nintendo UK - they looked for a photo of the receipt, the box, the contents of the box, various other things. They came back to tell me that the code for our Mario Kart was used on 23/12/2023. I said we didn't open the box until 25/12/23 and the code was not in the box. They said they can see from our online Nintendo account that we have not downloaded the game.

I asked if they could stop the access of the other party who downloaded the game using our code but that wasn't possible. Nintendo UK are saying that they can't do anything for us. I asked for a call back and to escalate the matter to a manager, they said they don't do call backs and that the manager said that they can't do anything for us.

I bought the Switch on the understanding that we would get the Mario Kart game and we didn't. How do I go about escalating this further to get our Mario Kart code?

Thank you for any advice you can offer.

 

[Pinoy adventure]

We also had similar experiences with smyths.
We bought a ps5 game from smyths and wrapped it up and opened on Xmas day only too discover there was no disk in box.
I though we picked up the display model
However looking true the little paper on the front part of the game we found our code.
Mind you we needed a lot of technical help from a very handy computer tech on here named @Cervelo

 

[Sue Ellen]

I bought the Switch on the understanding that we would get the Mario Kart game and we didn't. How do I go about escalating this further to get our Mario Kart code?

Have you tried sending a strongly worded letter of complaint to Smyths since Nintendo bowed out of the problem? Google their CEO and write to them.

 

[Páid]

I've bought a number of consoles in Smyth's before Christmas over the years. They always (and I mean every single time) tell me that after 30 days the warranty is with the manufacturer and to open the box and ensure everything is working in advance of Christmas.

In fairness to Smyths, they couldn't have known whether the game was in the box or not, unless they opened all of them and checked the contents.

Your issue is with Nintendo, not with Smyths.

 

[mathepac]

Shoddy post sales service from Smyths. Your contract is with them and any remedy due, refund or repair, is their responsibility. Mind you the manufacturer/distributor response also leaves a lot to be desired. Have you tried posting on Smyth's own FaceBook pages and try purchasing from the likes of Amazon in future?

 

[mathepac]

They always (and I mean every single time) tell me that after 30 days the warranty is with the manufacturer and to open the box and ensure everything is working in advance of Christmas.

In fairness to Smyths, they couldn't have known whether the game was in the box or not, unless they opened all of them and checked the contents.

Smyths want to turn EU consumer laws on their heads and make their quality control the responsibility of the customer. I don't think so.

 

[Cervelo]

Mind you we needed a lot of technical help from a very handy computer tech on here named @Cervelo

Thanks Pinoy adventure, glad we got you sorted

I bought the Switch on the understanding that we would get the Mario Kart game and we didn't. How do I go about escalating this further to get our Mario Kart code?

My understanding of your situation is, you were right to go to Smyths and complain about the missing code
This is who you have a sales contract with, Smyths were wrong in telling you that you need to contact Nintendo
while I see now that a lot of retailers are referring all issues back to the manufacture the manufacture has no legal responsibility to help you
but in this case they gave two bits of useful info, the date the game was downloaded and that it wasn't to your console
It would be great if Nintendo could give that to you in writing as it may help

So if it was me I'd go back to Smyths and ask the sales assistance for the Manager as you have issue with your purchase that is ongoing
Explain to the manager exactly what you've told us, especial the two bits of info Nintendo gave you and see what happens
If they still tell you that it's not their problem inform them that it is their problem as the "Sales of Goods Act" states that they are the ones who you have a contract with and its their responsibility to deal with this issue not the manufactures
Might be an idea to read up about the "Sales of Goods Act" and familiarize yourself with it as it's a very powerful bit of legislation that works very well for the consumer, think Citizens Info have a summary of it online which is always a good place to start

Failing that I presume you paid for this with a Debit/Credit Card so contacting the bank and starting a charge back claim for non supply of the game might be another option

 

[Páid]

Smyths cannot issue you a new code for the game, nor can they verify who used it. Only Nintendo (as the game publisher and console manufacturer) can do either of those things.

You can ask Smyth's to fight the battle with Nintendo for you but I suspect they will come back with the same answer you got and they won't pursue it beyond that.

 

[Cervelo]

Smyths cannot issue you a new code for the game, nor can they verify who used it. Only Nintendo (as the game publisher and console manufacturer) can do either of those things.

You can ask Smyth's to fight the battle with Nintendo for you but I suspect they will come back with the same answer you got and they won't pursue it beyond that.

You are correct that they can't issue a "New Code" but they can give you a new game and then take the issue up with their supplier who will probably issue them with a credit note
And yes Smyths might might tell the OP that there is nothing they can do and refuse to help the OP even though they are legally obliged to, which is why I suggested the "Charge Back" option but if you don't try well then you're never going to get what you paid for and never received
There is also the small claims court but as nothing is certain regarding the outcome it's not one I'd waste my time with and chalk it up to experience

 

[Savvy]

I think with the information the OP has they should go back in to Smyths and talk to a manager.
If after a civil conversation they are not willing to assist then take it up with Smyths HQ and finally small claims court.

There is also the small claims court but as nothing is certain regarding the outcome it's not one I'd waste my time with and chalk it up to experience

I can't agree with this. There is no point in having consumer protection, even for small things, if we are not willing to enforce it through the courts instead of chalking it up to experience.

 

[Leo]

While Smyths may be correct in saying claims under warranty must go through the manufacturer, there's a couple of very important points that ignores. First, an item missing from a purchase is not usually a warranty cover issue, it's simply one of the vendor failing to provide you with what you purchased. Second, any rights or exclusions under a warranty do not, and can not override your rights under consumer protection legislation.

Smyths should simply resolve this by providing you with a copy of the game, particularly with the evidence from the manufacturer that the item you had purchased is being used by someone else.

 

[Cervelo]

I can't agree with this. There is no point in having consumer protection, even for small things, if we are not willing to enforce it through the courts instead of chalking it up to experience.

While I would normally agree with you here there also comes a time when you have to weigh up whether or not it is worth the time, financial cost and the headspace that this will occupy over the next few months
The small claims court costs €25 (not sure do you get that back if you win) and a morning off work or a whole day hoping a judge finds in your favour and all for a game that costs €49.99

To me I'd cut my losses and move on if my first two suggestions don't work and probably never shop in Smyths again not that they would care anyhow

 

[Sunnysoutheast]

Shoddy post sales service from Smyths. Your contract is with them and any remedy due, refund or repair, is their responsibility. Mind you the manufacturer/distributor response also leaves a lot to be desired. Have you tried posting on Smyth's own FaceBook pages and try purchasing from the likes of Amazon in future?

Unfortunately you cannot write on Smyths Facebook page, only message them. I'll definitely consider Amazon in future.

 

[Sunnysoutheast]

Thanks Pinoy adventure, glad we got you sorted



My understanding of your situation is, you were right to go to Smyths and complain about the missing code
This is who you have a sales contract with, Smyths were wrong in telling you that you need to contact Nintendo
while I see now that a lot of retailers are referring all issues back to the manufacture the manufacture has no legal responsibility to help you
but in this case they gave two bits of useful info, the date the game was downloaded and that it wasn't to your console
It would be great if Nintendo could give that to you in writing as it may help

So if it was me I'd go back to Smyths and ask the sales assistance for the Manager as you have issue with your purchase that is ongoing
Explain to the manager exactly what you've told us, especial the two bits of info Nintendo gave you and see what happens
If they still tell you that it's not their problem inform them that it is their problem as the "Sales of Goods Act" states that they are the ones who you have a contract with and its their responsibility to deal with this issue not the manufactures
Might be an idea to read up about the "Sales of Goods Act" and familiarize yourself with it as it's a very powerful bit of legislation that works very well for the consumer, think Citizens Info have a summary of it online which is always a good place to start

Failing that I presume you paid for this with a Debit/Credit Card so contacting the bank and starting a charge back claim for non supply of the game might be another option

Thanks for that Cervelo. I have it in writing from Nintendo (by email) that my code is being used by someone else and that it wasn't downloaded to my console. I'll be going to Smyths later on in the week anyway and will take it up with them. I quoted the Sale of Goods and Supply of Services Act 1980 to Nintendo but they didn't care.
I've never done a chargeback before. The thing is that I did receive the Switch which was the bulk of the cost, just not the game. It was at the end of November also, would either of those things prevent a chargeback?

 

[Sue Ellen]

Unfortunately you cannot write on Smyths Facebook page, only message them. I'll definitely consider Amazon in future.

I have always found writing to the CEO or whoever is at the top brings about a quick response. When going back to the store does not bring about a satisfactory response then take it further up the ladder. Hold off on the chargeback until you have tried this less hassle route IMHO.

 

[Sunnysoutheast]

While I would normally agree with you here there also comes a time when you have to weigh up whether or not it is worth the time, financial cost and the headspace that this will occupy over the next few months
The small claims court costs €25 (not sure do you get that back if you win) and a morning off work or a whole day hoping a judge finds in your favour and all for a game that costs €49.99

To me I'd cut my losses and move on if my first two suggestions don't work and probably never shop in Smyths again not that they would care anyhow

I know what you mean, everytime I received an email from Nintendo my blood would boil! However for €50 I'm willing to go as far as I can.

 

[Sunnysoutheast]

I have always found writing to the CEO or whoever is at the top brings about a quick response. When going back to the store does not bring about a satisfactory response then take it further up the ladder.

I can try this if I get no joy from Smyths when I go to them again.

 

[Sunnysoutheast]

While Smyths may be correct in saying claims under warranty must go through the manufacturer, there's a couple of very important points that ignores. First, an item missing from a purchase is not usually a warranty cover issue, it's simply one of the vendor failing to provide you with what you purchased. Second, any rights or exclusions under a warranty do not, and can not override your rights under consumer protection legislation.

Smyths should simply resolve this by providing you with a copy of the game, particularly with the evidence from the manufacturer that the item you had purchased is being used by someone else.

Thanks Leo, I'll be sure to mention to Smyths that the code associated with my console is being used by someone else and that Nintendo can verify that we didn't download it.

 

[Sunnysoutheast]

I think with the information the OP has they should go back in to Smyths and talk to a manager.
If after a civil conversation they are not willing to assist then take it up with Smyths HQ and finally small claims court.


I can't agree with this. There is no point in having consumer protection, even for small things, if we are not willing to enforce it through the courts instead of chalking it up to experience.

Thanks Savvy, I'm going to take it as far as I can and will report back here with what happens.

 

[Sunnysoutheast]

Smyths cannot issue you a new code for the game, nor can they verify who used it. Only Nintendo (as the game publisher and console manufacturer) can do either of those things.

You can ask Smyth's to fight the battle with Nintendo for you but I suspect they will come back with the same answer you got and they won't pursue it beyond that.

Thanks Páid for your perspective.