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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
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I have a small consultancy business and just over a year ago

Customer Question

I have a small consultancy business and just over a year ago I was approached by my email Hosted Exchange provider to upgrade to Office 365. I liked the idea of collaboration with my other Director (there are only the two of us in the company) so I asked the provider to do the upgrade on the basis that my existing email setup could be replicated. The sales agent said it could. When we got into the detail of the provision with the technical people they said what I wanted could not be done, so I asked them to cancel the upgrade, reinstate the previous service and give me a refund of the £345 approx they had billed. They refused to give me the refund and I found that they had not taken the payment so I stopped it at source. I sent many emails and made several telephone calls asking to talk to someone in authority but was not allowed past the sales agents.
Just over a year later I received a claim through the small claims court. I filed a defence and indicated in the Directions form I would be prepared for mediation. I have just received a copy of the email provider's Directions form where they are refusing mediation. I filed a Subject Access Request but have only received back (mostly) copies of emails I already had and they have not provided any recordings of my many conversations with their sales and technical staff.
Do I have to capitulate or have I got a case which will stand up in the Small Claims Court.
My defence is as below:
Defence
Overview
The service was misrepresented by the SMS sales agent when it was sold, in a manner which was either recklessly fraudulent or negligent in that I made specific enquires about the operating methods I needed for Sixfold International Ltd emails, which I was assured could be achieved with their Office 365 system. In particular, I needed the same domain (sixfoldinternational.co.uk) to be available as an Office 365 account for 3 Directors and for POP accounts for other company addresses. I based my order on this condition, which later proved to be impossible to implement.
Neither Sixfold International nor I ever received an Office 365 service, as it could not be provided as specified and, hence it was not set up.
I repeatedly sought help by telephoning SMS and asking to speak to senior SMS staff to resolve the issues, but these requests were denied. I attempted to explain by email (as I was directed by the SMS call centre) but it appears my communications were either not received or ignored. I have now sent SMS a Data Access Request to obtain copies of the calls and correspondence to further validate my case.
Timeline
On or about 6 Sep 2014 Had a long conversation with SMS (Jordan) about how Office 365 would help collaboration within Sixfold at no significant increase in costs over our existing SMS service. Having received assurances that the specific configuration of the email service I needed could be achieved with the new technology, I asked Jordan to proceed with the change.
6 Sep 2014 16:52 SMS sent me invoice 132163 for £345.60 for 2 Office 365 users
11 Sep 2014 12:18 SMS sent an email Payment Receipt for Invoice 132163
15 Sep 2014 09:15 SMS asked if I had been in contact with Microsoft and for the passwords for the old mailboxes. 10:21 I replied that I had no other 365 account and I did not understand what I was supposed to do. 11:04 SMS asked if I was happy to proceed with change over. 11:20 I replied I needed to be sure that I could achieve the email configuration I wanted before the changeover. 12:02 SMS asked me to confirm the domains. 13:50 I asked them to call as I did not understand the implications.
Long telephone call with SMS (Martin) confirmed my suspicions that the service I wanted could not be provided.
14:34 I emailed SMS to confirm cancellation of the Office 365 service package ID 107263 and to make sure that the original service was continued. 14:36 SMS said they would put the service back but would not guarantee any refunds.
14:40 I, again, asked for a refund on the basis I was misinformed about what the service could provide.
16 Sep 2014 09:00 Opened discussions with UKFast as a potential email service provider. 10:04 SMS asked me to provide more information why the service could not do what I needed. 18:18 I emailed to say they should speak to their technical expert (Martin) who understood what the problems was, as I did not fully understand the technical issues.
17 Sep 2014 11:18 SMS emailed me again asking for information as to why the Office 365 solution does not meet my requirements. 12:34 I replied asking them to talk to their technical people and to reinstate my original service. 13:40 SMS emailed saying they were going to cancel my email package with them. 16:19 SMS emailed to day they were denying my refund and asking me to write a letter to them. 16:51 I replied stating that my cancellation was based upon their promise of a service which they could not deliver. 16:53 I e
Submitted: 1 year ago.
Category: Law
Expert:  Ash replied 1 year ago.
Hello my name is ***** ***** I will help you.
What do you want to achieve please?
Ash, Solicitor
Category: Law
Satisfied Customers: 10915
Experience: Solicitor with 5+ years experience
Ash and other Law Specialists are ready to help you
Customer: replied 1 year ago.
I want them to drop their claim.Andy Haigh
Customer: replied 1 year ago.
What time will you call?
Customer: replied 1 year ago.
I want to send three documents but I cannot add files on this portal. Have you an email address I can use?Thanks.Andy Haigh
Expert:  Ash replied 1 year ago.
Yes***@******.***
They do take a day or to to get forwarded to me, so I will call when I get them
Customer: replied 1 year ago.
I have emails you but the portal is now working so the documents are attached here. I have added the defence notes which were truncated in the first part of this correspondence.Thanks.Andy Haigh
01227 860375
Expert:  Ash replied 1 year ago.
Ok. It may be timers when I can call you.
Alex
Customer: replied 1 year ago.
Alex,Sorry but I did not understand your message.I will be available all this morning if you can call then?Andy
Expert:  Ash replied 1 year ago.
ok!
Customer: replied 1 year ago.
Thanks for your help. I will let you know the outcome if it gets that far.Andy
Customer: replied 1 year ago.
Alex,I tried sending you an email but your system rejected it.Please can you send me an alternate?Thanks.Andy Haigh
Customer: replied 1 year ago.
Alex, the text of my mail was:Alex,In our conversation you mentioned the Misrepresentation legislation. Please can you give the details of what I should look for.Finally, I have enclosed the current SMS terms and conditions. On the basis that these have not changed (in essence), can they rely upon these despite not delivering the service I wanted?All the best,Andy Haigh
01227 860375
Expert:  Ash replied 1 year ago.
It is where a statement is made, which is false and you rely on that statement.
That is what you look for. Does that help?
Alex
Customer: replied 1 year ago.
Yes, but does the Ts and Cs mean that does not apply?Andy
Expert:  Ash replied 1 year ago.
They needed to be brought to your attention BEFORE the contract was agreed.
Alex
Customer: replied 1 year ago.
I have not got any formal agreement for this additional service provision so I hope that covers this. They have indicated that they are going to take it to court and I cannot work out on what basis they think they can win - which is what is troubling me.Thanks for your help.Andy
Expert:  Ash replied 1 year ago.
I agree - they may be just trying it on.
Alex
Customer: replied 1 year ago.
Alex,Apologies for coming back again but does it make any difference that they are claiming against my company, Sixfold International, rather than me personally?Thanks.Andy
Expert:  Ash replied 1 year ago.
No.
Alex
Customer: replied 1 year ago.
Alex,Thanks. I cannot work out why they would pay the additional fee for it to go to court. However, I am going to stick it out.I appreciate your help.Andy
Expert:  Ash replied 1 year ago.
Good luck!
Alex

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