Without Prejudice Save As To Costs

[graemegordon]

Is there anyone could help me understand this legal stuff.

 

We went to the Grand Design Show and came across to the representative who provided us the information about the salt-water softener solutions. I expressed my concerns that about the complex water pipes we installed during the renovation work on our property might not be suitable. He reassured me that it shouldn’t be a problem with the water filter and softener installation at our property.

I checked at home to see if the softener and filter system will fit with our current water piping infrastructure/system. It turned out that we believe that the product with which we placed an order with this representative at the exhibition is not a suitable one. I asked the company to cancel the order and received a written letter reply saying that we are not within our right to cancel our order (see below).

 

We are unsure on our legal position by having the right to cancel our order and recover the costs incurred to date. We have paid the initial installation with two more installations due in the next two months. The payment was made by a credit card.

My concern is that we are likely to be stuck with this product that is clearly not suitable for our property and get tied down with the potential legal dispute with this company.

 

-------------------------------------

 

BY POST

 

WITHOUT PREJUDICE SAVE AS TO COSTS

 

OUR REF: SCF/GD/G

 

Dear Mr & Ms

 

On the 12th May 2012, at the Grand design show you entered into an agreement as per our terms and conditions. There is no provision within these terms and conditions, or in law, which grants you the right to cancel the order, in fact you are obliged to pay us for the goods ordered so that we may supply them to you. If you choose not to pay the balance we will seek the loss of bargain and will use the monies currently held to set off against those losses.

 

Yours faithfully

Xxxxx

-------------------------------------

 

"...pay the balance we will seek the loss of bargain" I checked their online shopping and it is not much different from what I paid at the exhibtion. Anyone purchase a products online have more rights than me. On their Terms & Conditions of Sale written "Goods ordered at trade shows may not be cancelled under this clause."

 

I have uploaded the Terms & Conditions of Sale file to read.

 

Would be looking forward to hear from you soon.

Terms-&-Conditions-of-Sale.pdf

Edited May 20, 2012 by graemegordon

[Bang!]

If you wish to withdraw from a contract - the other contracting party is not entitled to the entire consideration (the amount you would have paid them), but only entitled to their loss from what they would have earned plus any associated reasonable costs incurred prior to your breach.

 

In addition to that, if you can show the product was mis-sold and would not do what it was meant to, then if you can show this, you should be able to walk away.

 

I must admit - I have no idea what a "salt-water softener solution" is or how much it would cost.

 

If you could give an idea of a rough price it helps see how much you are likely to be chased. Also I am dying to know what it is/does.

 

Additionally - I should add I cannot read your link yet - as it has not yet been approved by admin.

[graemegordon]

Hi,

 

A salt-based water softener is a unit that is used to soften water, by removing the minerals that cause the water to be hard.

 

I'm not interesting about making the water soft but only interesting removing the limescale and can be done without using the salt, they told me it not possible and using the salt water softener is the only way to stop the limescale and also if I do use their products, the outside water tap will be salt-water and it will go througth the water filter under the kitchen sink, there should be fresh water running through the water filter and outside tap for garden. I felt that I'm being mislead and it only done in verbally, how can I prove that?

 

While my link is not approved, see below that I have copy in.

 

XXXXXXXXXX- Terms & Conditions of Sale

 

1 Definitions means these Terms and Conditions of Sale and any special terms and conditions agreed in writing by XXXX.

"Conditions" means the customer referred to overleaf.

"Customer" means XXXXXXXXXX Company Address "XXXX"

"Goods" means devices, replacement filters, repairs or installation services bought or to be bought by the Customer from

XXXX.

"Price” means the prices quoted overleaf which are inclusive of V.A.T.

 

2 Conditions applicable

2.1 These Conditions shall apply to all contracts for the sale of Goods by XXXX to the Customer to the exclusion of all other terms and conditions including any which the Customer may purport to apply under any purchase order, confirmation or similar document.

2.2 Variations to these Conditions shall apply only if agreed in writing by XXXX.

 

3 The Price and payment

3.1 The Price shall be the price quoted overleaf. The Price, shall remain valid for 30 days or, if later, until delivery of the Goods to the Customer.

3.2 Goods supplied by XXXX, the Price is payable on placement of order.

3.3 The Customer agrees with XXXX to pay promptly without demand, deduction or set off for any reason whatsoever all sums payable by the Customer for the supply of Goods by XXXX.

 

4 The Goods

4.1 The quantity and description of the Goods shall be as set out overleaf.

 

5 Warranties and liability

5.1 The Goods shall comply with the manufacturer of the Goods normal design and specification current at the date of manufacture.

5.2 Leakage of water can cause damage, therefore, if there is a substantial delay in the reporting of any fault in the Goods to XXXX, damage can occur to the premises in which the the Goods are installed. The Customer, therefore,undertakes:

5.2.1 to report to XXXX any fault which may result in any claim under this warranty or otherwise within 12 hours of the fault manifesting itself and

5.2.2 if the premises in which the Goods are installed are to be unoccupied for any period greater than 12 hours, to turn off the water supply for the period that the property is unoccupied.

5.3 XXXX shall not be liable for any indirect or consequential loss or damage (including without limitation to the generality of this exclusion) loss of profits, contracts, data or goodwill and economic loss suffered by the Customer howsoever arising.

 

6 Acceptance of the Goods and right to cancel

6.1 When the Customer orders Goods other than at a trade show at which he deals directly with a representative of

XXXX, the Customer may cancel the order for the Goods (XXXX will refund the Price) by giving written notice to XXXX within 7 working days beginning with the day after the delivery of the Goods to the Customer. Such Customer shall not be entitled to cancel the goods under this clause if XXXX has commenced installation of the Goods. Goods ordered at trade shows may not be cancelled under this clause.

6.2 The Customer shall return Goods cancelled under clause 6.1 to XXXX at Customers expense.

6.3 The Customer shall be deemed to have accepted the Goods 7 working days beginning with the day after their delivery to the Customer after which he shall not be entitled to reject Goods which are not in accordance with the contract.

6.4 Administration charges can be applicable at up to 45% of order value.

 

7 Title and risk

7.1 The Goods shall be at the Customers risk on delivery to him or, if the Goods are to be collected by him, from the date upon which he collects them.

 

8 General

8.1 This agreement shall be governed and construed according to the law of England and Wales and the parties submit to the exclusive jurisdiction of the Courts of England and Wales.

8.2 The masculine gender shall include the feminine and neuter. and the singular number shall include the plural and vice versa.

[graemegordon]

Sorry, I'm not sure if I have clicked on the right button "Reply" to you or myself?

[graemegordon]

Sorry, forgot to meantion how much the order is £995.00 and that for Salt Water Meter Controlled Softener, 3 ways chrome tap with kitchen water filters.

[BankFodder]

Firstly, they would not be entitled to proceed against you for the full amount of the contractual price. As has been explained above, they would only be entitled to recover their reasonable losses caused by your breach of contract.

 

Their clause concerning 45% payable on cancellation is invalid as it is a blanket figure and does not reflect actual losses. Check Unfair Terms in Consumer Contracts Regs - esp. - regs.5, 6 and schedule 2

 

How much of your money are they holding?

 

Don't pay them any more. Their letter and their T&Cs are poorly drafted and the use of the legal terminology in the context they are used here are calculated to worry you.

 

Now, what can you do?

 

The best thing is to write a detailed account of your visit to the show and include a complete description of your meeting with their rep - what was said, who said what etc.

 

How do you know that their system is not compatible? Are you completely sure?

 

Write to them - recorded - and put them on notice that the contract is cancelled and that the reason for the cancellation is that you sought their expert advice at the show, that you explained your situation and that you received assurances which caused you to agree to buy their product. You have now made further researches and you find that the advice you received from them was wrong.

Tell them that you are prepared to continue with the contract if they will give you written assurance that the equipment they are selling you is suitable for your situation. If they will not do that, then you want the return of your money.

 

Put them on notice that even if there had been a valid contract, they would only be entitled to keep sufficient money to cover their reasonable losses and that you would want those losses fully itemised.

As it is, you have received inaccurate advice which has caused you inconvenience and that if they will not return your money in its entirety then you will be preapred to take a County Court action to recover it plus interest.

Don't make this threat unless you are prepared to carry it out. However, a County Court action is very easy and you have a very good chance of winning.

 

Send the letter - recorded. Don't use without prejudice or any other stuff which you don't understand and is meaningless anyway.

[locutus]

Have you already paid some money toward this? If so how much?

[graemegordon]

Please note that I'm deaf and English is not my first language but sign language is. I will try my best to write a clear message as much as possible, if you don't understand what I mean. Please do tell me and I'm more than happy to explain a different way.

 

We have paid the initial installation with two more installations due in the next two months. The payment was made by a credit card and already paid the first installations at the cost of £331.66 with the total of £995.00.

 

The sale man told me that my water supplier recycle the water 9 times and it got full of hormones in it. I phoned my water supplier through "RNID TypeTalk Relay for Deaf" this morning with time, date and name from customer service and asked if they recycle water in our local water system. They said that they don't recycle water at all and only supply fresh water from the reservoir, and then I asked to give me a simple written confirmation to my address to say that they don't recycle water at all. The manager got involved and asking me why I want a written confirmation and I explained that sale man had misled me. They immenditally can't help me, do not recommend the softener and gave me the number to contact the Domestic Softener Research and hang up. Now I don't know they shut me out?

 

The sale man also said to me that they are the number one company that supply water softener and filters, and I can't find that information.

 

I did expressed my concern with the complex piping at home and saying that should be fine to use the softener under the kitchen sink but I can't see any fresh water starting from the kitchen as the main pipe. So that mean that softener will not work or use from the main pipe with no fresh water for kitchen taps and outside tap.

 

My wife and I did have a long conversation trying to understand the sale man and not easy because we are both deaf and follow through lipreading. I might be thinking silly, as I'm concern that he might use my deafness as an excuse for not understanding him? I don't want to read too much about that.

 

I did say that I'm not keen on salt and want a salt free system, he keep saying that salt system is the only way to stop lime scale. So we thought that he was telling the truth.

 

At the end, we did say that we will think about it and he told me why think about it and it a good deal! We walked away and about 20 mins later we accepted the deal. I don't know if they just want me to sign the deal and knew buying from trade markets will be difficult to refund the money or I'm easy target? When I got home and checked the price to compare the trade market price and online shopping price, it's not much different so that is not a bargain price? Let me know if anyone needs more information out of me to help understand things better?

 

Thank you.

[BankFodder]

Thanks for this clarification.

 

Nothing you have said here makes any difference to the advice which I have given you a couple of posts above.

 

I suggest that you follow the steps I have laid out -and let us know what happens

[graemegordon]

Hi,

 

I have been advice to phone and spoken throught 3rd party on TTY and try resolve the matter, before writing the letter.

 

The lady that wrote the letter saying that I should have thought about it before buying at the trade and made it clear that she will not cancel the order. I did explained the lady, the reason that there is no main water supply coming from my kitchen sink and i can't have fresh water for tap or outside tap. She told me that is not the company to check the house and only supply the order.

 

She said that her sale man always explained everything and maybe I misunderstood him. I did mentioned to her that I did have little concern if product might not work at my house and saleman told me not to worry about it and should be fine, so I believed him at the time. Then she said that if I was concern then I should not order the product in the first place, so why didn't the saleman warn me when buying product at the trade market in the first place.

 

The order been dispatched already and expecting delivery today. I said that I will write a letter back after the converation on the minicom phone (TTY) and she said that she is looking forward to see my letter. My concern now that she sound so confident and I'm in the wrong.

 

What if I lost the contract and will i have to paid up the damage or what.

 

Any thought?

[locutus]

people do sound confident until court papers land on their doors. I would trust BankFodders opinion would be similar to a court judge.

[graemegordon]

Hi, I have written a draft letter and I'm about to post it off today first class with a signature tracking. I have written two different draft and let me know which one would be best? Any feedback would be a great help, just want to make it right.

 

Thanks, see below the two draft letters.

 

 

Re: XXXXX

 

 

RECORDED.

 

 

Misrepresentation Act 1967

 

I entered into an agreement with your company on 12th May 2012 at a cost of £995.00 via credit card, with three-month installations.

 

I’m writing to you regarding a problem I have with the goods that I brought from xxxxx Meter Softener, XXXXXX System water filter, Contemporary 3 Way Chrome, on 12th May 2012 at the Grand Design Show.

 

15th May I phoned XXXXXX to cancel the order and they told me that there is nothing on their system and advice to email to cancel the order no. xxxxx on the 15 May 2012 12:04:41. I explained my reason why I want to cancel the order because your system is not compatible for our house.

 

The contract is cancelled after doing some further researches about your system. xxxxx, the salesman is person that we have spoken through the order at the Grand Design Show. We said that we want a salt-free softener to get rid of the lime scale for the whole house, and Xxxxxx said that salt softener is the only solution to get rid of the lime scale, asked whereabouts we lived, xxxxx, xxxx said that XXXX water is very hard and my water supplier Xxxxxx recycled the water 9 times.

 

I followed up with water supplier on 21 May to confirm if they do recycled water 9 times and clearly told me that water is coming straight from the reservoir and do not recycle water at all. Water supplier confirmed the water hardness is moderate hard, not very hard. I did ask salesman what about the Limescale Eliminator and said that is not good because our water is too hard and only suitable for Northern England, not Southern England.

 

Salesman reassured us that product is the correct one after telling that our pipe system is complex after a big building work. Softener is go under the kitchen sink as well the filter water, however he reassured that main fresh water pipe should go straight to the kitchen and softener run through other pipe system. After checking at home, I discovered that is not possible and having to install the softener from the main pipe, I will not get fresh water coming to the kitchen and outside tap.

 

We are prepared to continue with the contract if XXXXXX will give us written assurance that the equipment XXXXXX are selling us is suitable for my situation?

 

I have since discovered that this is not the case, therefore I feel the contract was misrepresented to me. As such, I will have no option but to cancel the contract without penalty in accordance with the Misrepresentation Act 1967.

 

I look forward to your response within 14 days so we can resolve this matter amicably.

 

---------------------------------------------------------------------------------------------------------------------

 

 

 

SECOND LETTER....

 

 

 

RECORDED

 

 

Dear xxxxx

 

Misrepresentation Act 1967

 

 

I’m writing to you regarding with the agreement we entered with xxxx on 12th May 2012 at the Grand Design Exhibition in ExCel. The agreement is for the the xxxs Meter Softener, xxxxx System water filter and Contemporary 3 Way Chrome at the cost of £995.00 that is to be settled in three instalments, using a credit card.

 

At the time of purchase, it was indicated by a representative of your company, Salesman, that the salt softener products would be the only solution to get rid of the limescale. He asked the whereabouts of our residence and said that the water in xxxx where we live is very hard. He also informed us that our water supplier, xxxxxx recycles water nine times with full of hormones in it.

 

We have since discovered that this is not the case therefore we feel the contract was misrepresented to us. As such, we have no option but to cancel the contract without penalty and want the return of our money in accordance with the Misrepresentation Act 1967. The reason is that we sought xxxxx’s expert advice at the show. We explained our situation by needing a salt-free softener to get rid of the limescale at our property and received assurances, which caused us buying the salt softener products from xxxxx.

 

We have now made further researches and found that the advice we received from xxx was wrong. On 15th May 2012, we phoned xxxxx to cancel the order (order reference no. xxxxx) and were informed that the order was not on their system. It was advised that we are to send an email to the company, using the email address as xxxxx@email, with which we did on 15th May 2012 for cancelling the order with our reasons.

 

I look forward to your response within 14 days so we can resolve this matter amicably.

[BankFodder]

The second one is the better one. I have amended slightly

 

 

 

RECORDED

 

 

Dear xxxxx

 

Misrepresentation Act 1967

 

 

I’m writing to you regarding with the agreement we entered with xxxx on 12th May 2012 at the Grand Design Exhibition in ExCel. The agreement is for the the xxxs Meter Softener, xxxxx System water filter and Contemporary 3 Way Chrome at the cost of £995.00 that is to be settled in three instalments, using a credit card.

 

At the time of purchase, it was indicated by a representative of your company, Salesman, that the salt softener products would be the only solution to get rid of the limescale. He asked the whereabouts of our residence and said that the water in xxxx where we live is very hard. He also informed us that our water supplier, xxxxxx recycles water nine times with full of hormones in it.

 

We have since discovered that this is not the case therefore we feel the contract was misrepresented to us. As such, we have no option but to cancel the contract without penalty and want the return of our money in accordance with the Misrepresentation Act 1967. The reason is that we sought xxxxx’s expert advice at the show. We explained our situation by needing a salt-free softener to get rid of the limescale at our property and received assurances, which caused us buying the salt softener products from xxxxx.

 

We have now made further researches and found that the advice we received from xxx was wrong. On 15th May 2012, we phoned xxxxx to cancel the order (order reference no. xxxxx) and were informed that the order was not on their system. It was advised that we are to send an email to the company, using the email address as xxxxx@email, with which we did on 15th May 2012 for cancelling the order with our reasons.

 

We do not admit that we are in anyway responsible for the cancellation. However, we understand that you believe that you are entitled to levy a cancellation charge.

We will not be paying any charge but for the record we would be interested to know how the charge is calculated and in what way it might be said to compensate you for any losses incurred had we been in breach of contract.

 

I look forward to your response within 14 days so we can resolve this matter amicably.

[graemegordon]

Thank you and I will post it off today. Will let you know how it going with the letter. Really appericate your help.

[graemegordon]

Letter.pdfHi,

 

I got the letter last week Friday and they still not interesting cancelling or refund my order. The point at the beginning is that i don't have any main drinking water tap from the main pipe, this was advice by the water regulation. I have attached the two files, one is the letter and other is regulations.

 

Look forward to hear you soon.

Water Fittings Regulations.pdf

[BankFodder]

Then it is up to you either to decide to sue - in which case you send an LBA giving 7 days - or else you give up.

 

There is no other option