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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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durable format t &C's

Resolved Question:

Hi,

we have a website that includes our terms of business (under its own URL and web  page), we email a sourcing of goods agreement referencing a web link to those terms of business, and our customer would send us an email confirming  go-ahead, and pay us a small 'token' deposit as a commitment to proceed.

We would then look to source the goods from the trade market, and once identified, the customer would confirm the go-ahead to purchase the goods in principle on their behalf.

Our terms state clearly that once we have purchased goods on behalf of customer the token deposit is no longer refundable.

Owing to an unexpected delay in the preparation of the goods, the customer is now demanding their token deposit back in full.

We have reminded them of our terms and they have allegedly spoken with a trading standards office and relayed to us that we are legally duty bound to refund their deposit because our terms and conditions were not provided in a durable format, and they are entitled to a 12 month and 14 day cooling off period.

This customer is trying anything to wriggle out of the sourcing agreement. Can you please advise whether their claim over a technicality would stand up in a UK Court (our website is fully audited, and we can show evidence of any changes to our website).

Thanks

Submitted: 1 year ago.
Category: Law
Expert:  Ash replied 1 year ago.
Hello my name is ***** ***** I will help you with this,
Is this a consumer or business to business transaction?
Customer: replied 1 year ago.

Hi, thanks for your response,

its a business to consumer transaction, to add another key point, we provided an agreement in pdf format via email, which clearly references to our terms of business from our website, and the customer to go-ahead is required to send us an email confirming their agreement to go-ahead.

Look forwrad to receiving your guidance.

thanks in advance

Expert:  Ash replied 1 year ago.
Is it somethimg custom made?
Customer: replied 1 year ago.

Hi, no, its a mandate to source them with a used car, we allow mandates to be cancelled and deposits returned in full only where we haven't already purchased a vehicle on behalf of customer, in this case the car has been purchased and is in the process of being prepared for delivery, the customer has not even received the car as yet, again, they are wanting to wriggle out of completing the purchase.

thanks

Expert:  Ash replied 1 year ago.
Do you email a copy of the order with terms or are they just available online?
Customer: replied 1 year ago.

The vehicle sourcing agreement is a pdf document (emailed) which includes a link to our terms of business, which are static on our website.

thanks

Expert:  Ash replied 1 year ago.
There is guidance on what is a durable medium
o A letter is a durable medium. Sending it is provision of that medium. Provided the trader took reasonable care to send it to the address given to them by the consumer the trader is likely to have met their obligation.
o A CD/DVD is a durable medium. Sending it is provision of that medium. Even if the consumer does not have a CD/DVD player, the information has still been provided.
o An email is a durable medium. However, information contained via link to a website which may change, and which is embedded in an email is not. Sending the email to the address given by the consumer is provision of that medium. If the consumer does not look at their email account, or deletes the email, the information has nevertheless been provided on the durable medium.
o A text message is a durable medium. Sending it to the consumer’s notified telephone number is *****
o A ‘personal account’ (such as those used by phone companies for online billing) on a trader website can be, or include an aspect which is a durable medium. It must be capable of storing information personal to the consumer, in a format which will be left unchanged and remain accessible to the consumer for a reasonable amount of time. Placing the information in the relevant part of the personal account is the provision of the information on the durable medium so that if the consumer wants to see it they have to log into it (in a similar way that they have to open emails, a letter or a text).
Therefore if yours falls within that you are ok. If it was simply a link then you are not.
Can I clarify anything for you about this today please?
Alex
Customer: replied 1 year ago.

Hi, thanks, ***** ***** not sure this answers our question, can you please clarify, we have an agreement in pdf that sets out the sourcing mandate, and it references to our terms of business, which is a url link to our website. Website changes are audited, and we can show evidence that these have not been changed in quite some time.

Expert:  Ash replied 1 year ago.
No. It needs to contain the terms, not just the link.
Does that clarify?
Alex
Customer: replied 1 year ago.

thanks, ***** ***** can prove our terms from website have not changed via an independent audit trail from a global hosting company, should this satisfy a Court ? Plus, with the addition of substantial email dialogue, which clearly provides evidence that customer has always been aware of our terms of business.

Expert:  Ash replied 1 year ago.
That may but I can't be certain of that, it will really depend on the Judge.
But if you have the email trail showing the above that will certainly assist.
Does that help?
Alex
Customer: replied 1 year ago.

thanks, ***** ***** is most helpful.

Expert:  Ash replied 1 year ago.
If this answers your question might I ask you to rate my answer before you go today please, the button should be at the bottom of the screen.
If you need more help please click reply.
Alex
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
Ash and other Law Specialists are ready to help you
Expert:  Ash replied 1 year ago.
Hi

I am just following up on this. Is there anything else I can help with? If so, please let me know.

Alex.

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