I posted this on the Small Businesses Forums but I think this is a Consumer problem too... What do you think? Read this and please let me know?
Ok here's the story;
I am in Australia and following negotiations online and via phone, I acquired the licence for a UK Franchise service. I reached an agreement with the Franchisor to pay only 40% approx of the fee up front as the initial payment, with the remaining 60% to be paid in periodic smaller proportional payments upon each use of the service, until the full purchase price had been paid.
I clicked on an supposedly recognised and established Franchise website for further details and following several calls to my home and mobile by them even offering a discounted purchase in an effort to get in early before the offer ends. I received numerous emails about it all and was quite excited by the opportunity. I paid some due diligence and researched/googled as much about the company as I could and found no bad sites or threads except for one vague reference. It was and still is listed with Franchise selling websites here and in the UK. So I made the purchase.
There was NO 'try before you buy' option so I worked on the basis that I would be covered under Consumer Laws or others for any possible cooling off period.
The service was supplied but it was not complete initially and upon examination it took over some 30 subsequent days before I realised that the product was not as good as it appeared to be and on top of it all the support was awful. Time delays of several days when asking questions and waiting for replies; incorrect and inappropriate answers that didn't really answer the question; reference to features of the service that were not available to myself unless actually asked for and then some that weren't known until they were discovered later on and had to be requested; in adequate (very basic) user manuals; NO support paperwork such as invoices, receipts, order forms, etc etc; in fact many areas of disappointment.
Then the calls stopped. The emails too. My only contact was via one person or through their website on a ticketing system with great delays.
The service has NOT been used commercially in any way by myself. Upon closer examination of the contract and when requesting to cancel inside 30 days of trying the service out for performance commercially and as the product was inferior to my needs, substandard to that expected and due to the reasons above, as well as others, believing at that point that I would have a cooling off period of some sorts, I contacted them and at 31 days formally said I wish to cancel within my cooling off period and was told that there was NO cooling off period at all. That this was NOT a consumer contract but a Business to Business contract and not covered by Consumer Laws. I can cancel BUT there will be NO refund of my 40% fee.
I further confirmed my cooling off period cancellation request 4 days later but was again refused it.
I made the initial purchase using my own personal credit card. They wanted to do transactions that way and I am not a business with any credit facility apart from my credit card. My basis was that I made this purchase as an individual real person, so I am a consumer. I made the purchase which was subsequent to my normal trade and not in any way directly related to it. SO by that description under the DSR 2000 definition I am classed as a Consumer.
Also I made the purchase under a credit agreement (credit card) AND through a credit agreement with the Franchisor (proportional payments over time). Under the Consumer Credit Act 1974 (2006 amended), as my purchase in whole does not exceed 25,000 GBP, I would also have the same rights as a Consumer.
A few days after the initial transaction they further debited my card without authority for a smaller amount. It was again unauthorised so I when I received my CC statement and saw this I contact them and was told that it was an erroneous transaction for someone elses account and they will refund the smaller fee plus international transaction costs. I have not yet seen this refunded. This was the finally straw to me and helped me to make my mind up that I could NOT continue with this 'relationship' and would cancel and looked for the cooling off period clause.
Now to me, the fact that the Franchisor has NOT included a clause for cooling off poses two scenarios; 1.) that under the DSR Laws an automatic 3 months extension for a cooling off period will apply so I am within that time frame at 31 days; 2.) that even when made aware they refuse to accept that there is any cooling off period (and if there was it would only be 7 days they said) and they have further failed to notify me of ANY cooling off period, seems to tell me that the whole contract may now fail the test of 'reasonableness' and thereby be 'Unfair' and as such unenforcable.
Working on point 1.) above I further pointed out that they have 30 days to refund my fees under the DSR legislation or they may be breaking the law, of which at the time they had 19 days remaining. That was 17 days ago. 2 days left and still no refund.
I have outlined this to them and formally requested a full refund numerous times. Their reply was to insist that I have no rights to a refund but can cancel with NO refund but I must notify them formally in writing within 7 days of their notice if I wish to continue with the licence or part ways. They also stated that they are confident in their position that I had entered into a business to business agreement – and that this fact had previously been successfully argued in a court of law and they are prepared to do so again.
I replied that "Without Prejudice" to my position or rights to cancel as stated above I reserve the right to cancel in any cooling off period and return to this position in our discussions but will continue for the time being.
So, the question is where do I go from here? Can I get my money back? Do the DSR laws, Consumer Credit Act 1974/2006, Unfair Contract Terms Act 1977 or any other common or business law or statutory instruments or legislation support my case to get my money back?
I am in Australia. The Franchisor is in the UK. This is difficult. ANY advice would be helpful, please?
Thanks
David
Ok here's the story;
I am in Australia and following negotiations online and via phone, I acquired the licence for a UK Franchise service. I reached an agreement with the Franchisor to pay only 40% approx of the fee up front as the initial payment, with the remaining 60% to be paid in periodic smaller proportional payments upon each use of the service, until the full purchase price had been paid.
I clicked on an supposedly recognised and established Franchise website for further details and following several calls to my home and mobile by them even offering a discounted purchase in an effort to get in early before the offer ends. I received numerous emails about it all and was quite excited by the opportunity. I paid some due diligence and researched/googled as much about the company as I could and found no bad sites or threads except for one vague reference. It was and still is listed with Franchise selling websites here and in the UK. So I made the purchase.
There was NO 'try before you buy' option so I worked on the basis that I would be covered under Consumer Laws or others for any possible cooling off period.
The service was supplied but it was not complete initially and upon examination it took over some 30 subsequent days before I realised that the product was not as good as it appeared to be and on top of it all the support was awful. Time delays of several days when asking questions and waiting for replies; incorrect and inappropriate answers that didn't really answer the question; reference to features of the service that were not available to myself unless actually asked for and then some that weren't known until they were discovered later on and had to be requested; in adequate (very basic) user manuals; NO support paperwork such as invoices, receipts, order forms, etc etc; in fact many areas of disappointment.
Then the calls stopped. The emails too. My only contact was via one person or through their website on a ticketing system with great delays.
The service has NOT been used commercially in any way by myself. Upon closer examination of the contract and when requesting to cancel inside 30 days of trying the service out for performance commercially and as the product was inferior to my needs, substandard to that expected and due to the reasons above, as well as others, believing at that point that I would have a cooling off period of some sorts, I contacted them and at 31 days formally said I wish to cancel within my cooling off period and was told that there was NO cooling off period at all. That this was NOT a consumer contract but a Business to Business contract and not covered by Consumer Laws. I can cancel BUT there will be NO refund of my 40% fee.
I further confirmed my cooling off period cancellation request 4 days later but was again refused it.
I made the initial purchase using my own personal credit card. They wanted to do transactions that way and I am not a business with any credit facility apart from my credit card. My basis was that I made this purchase as an individual real person, so I am a consumer. I made the purchase which was subsequent to my normal trade and not in any way directly related to it. SO by that description under the DSR 2000 definition I am classed as a Consumer.
Also I made the purchase under a credit agreement (credit card) AND through a credit agreement with the Franchisor (proportional payments over time). Under the Consumer Credit Act 1974 (2006 amended), as my purchase in whole does not exceed 25,000 GBP, I would also have the same rights as a Consumer.
A few days after the initial transaction they further debited my card without authority for a smaller amount. It was again unauthorised so I when I received my CC statement and saw this I contact them and was told that it was an erroneous transaction for someone elses account and they will refund the smaller fee plus international transaction costs. I have not yet seen this refunded. This was the finally straw to me and helped me to make my mind up that I could NOT continue with this 'relationship' and would cancel and looked for the cooling off period clause.
Now to me, the fact that the Franchisor has NOT included a clause for cooling off poses two scenarios; 1.) that under the DSR Laws an automatic 3 months extension for a cooling off period will apply so I am within that time frame at 31 days; 2.) that even when made aware they refuse to accept that there is any cooling off period (and if there was it would only be 7 days they said) and they have further failed to notify me of ANY cooling off period, seems to tell me that the whole contract may now fail the test of 'reasonableness' and thereby be 'Unfair' and as such unenforcable.
Working on point 1.) above I further pointed out that they have 30 days to refund my fees under the DSR legislation or they may be breaking the law, of which at the time they had 19 days remaining. That was 17 days ago. 2 days left and still no refund.
I have outlined this to them and formally requested a full refund numerous times. Their reply was to insist that I have no rights to a refund but can cancel with NO refund but I must notify them formally in writing within 7 days of their notice if I wish to continue with the licence or part ways. They also stated that they are confident in their position that I had entered into a business to business agreement – and that this fact had previously been successfully argued in a court of law and they are prepared to do so again.
I replied that "Without Prejudice" to my position or rights to cancel as stated above I reserve the right to cancel in any cooling off period and return to this position in our discussions but will continue for the time being.
So, the question is where do I go from here? Can I get my money back? Do the DSR laws, Consumer Credit Act 1974/2006, Unfair Contract Terms Act 1977 or any other common or business law or statutory instruments or legislation support my case to get my money back?
I am in Australia. The Franchisor is in the UK. This is difficult. ANY advice would be helpful, please?
Thanks
David