Does A Sole Trader Have A Cooling Off Period On Hire Agreement

[CatAndMouse]

Hi

 

Few years ago purchased a Server from PCWorld, at the top of the agreement it had:

 

Hire Agreement Regulated by the Consumer Credit Act 1974

 

Further down it had:

 

This Agreement is not cancellable under UK consumer credit legislation

 

Then further down it had:

 

IMPORTANT – READ THIS CAREFULLY TO FIND OUT ABOUT YOUR RIGHTS

 

The Consumer Credit Act 1974 covers this Agreement and lays down certain requirements for Your protection which should have been complied

with when this Agreement was made. If they were not, We cannot enforce this Agreement against You without getting a court order. If You would

like to know more about Your rights under the Act, contact either Your local Trading Standards Department or Your nearest Citizens’ Advice

Bureau

 

 

And this bit, as stated above at the time i was a sole trader:

 

* This is an agreement regulated by the Consumer Credit Act 1974 unless you are a corporate body or a partnership of 4 or more partners or the

total Repayments are greater than £25,000 in which case this Agreement will not be regulated by the Consumer Credit Act 1974 and any

statement in this Agreement or copy of this Agreement concerning such Act will not apply.

 

My question is this, is a sole trader protected under the consumer credit act and allowed a cooling off period, as i sent the documents away on the 23 and then on the 24 changed my mind and emailed them to cancel and then a week later got the agreement back signed and dated 25th

 

I then phoned them back up and queried this and was informed the agreement was none cancelable, but as i cancelled 1 day before the agreement was signed, surley i'm allowed to cancel.

 

CAM

[dadofholly]

Hi

 

Few years ago purchased a Server from PCWorld, at the top of the agreement it had:

 

 

 

Further down it had:

 

 

 

Then further down it had:

 

 

 

And this bit, as stated above at the time i was a sole trader:

 

 

 

My question is this, is a sole trader protected under the consumer credit act and allowed a cooling off period, as i sent the documents away on the 23 and then on the 24 changed my mind and emailed them to cancel and then a week later got the agreement back signed and dated 25th

 

I then phoned them back up and queried this and was informed the agreement was none cancelable, but as i cancelled 1 day before the agreement was signed, surley i'm allowed to cancel.

 

CAM

 

As a sloe trader you have the same rights as an individual as "you" are the business and personaly liable for it - unlike a ltd company that has it's own seperate identity.

 

As regards the agreement you signed - did you sign it on trade premises?

[CatAndMouse]

Hi dadofholly

 

Signed the agreement at home.

 

CAM

[dadofholly]

Hi dadofholly

 

Signed the agreement at home.

 

CAM

 

In that case you had 5 days to cancel - and they should have informed you of this at the time of sale - with the info on how to cancel.

 

You also say you canceled before they signed - as long as it's within the 5 day time scale you have no agreement.

 

They are mistaken in the non-cancellable part - that ONLY applies to agreements signed on trade premises.

 

What year was this? just so i can double check on relevant legislation

 

Also was the server an off the shelf one - or made to your spec?

 

Did you have the goods in your posession at time of signing - or did you take possession of them at any point.

Edited October 15, 2010 by dadofholly

[CatAndMouse]

Hi dadofholly

 

Made to spec and 2007, also no time scale to cancel, turned out i tried to keep payments up, but could not, being fighting them ever since and now how dca number 4 after me.

 

CAM

[dadofholly]

OK - it being made to spec can be an issue - what kind of time scale was involved between you agreeing the spec and signing the docs.

 

If they had already started the work then it "May" be to late to cancel - however as they had not even signed the agreement at this point i doubt they would have.

 

Take it you ordered it in store - or was it at home - and did you take possession of the goods at any point.

 

Sorry to ask so many questions but you have different rights under different bits of legislation such as sale of goods act or CCA etc.

 

Am just trying to work out best form of attack

[dadofholly]

Initial form of attack will be to simply send a CCA Request - they may not even have a copy of the agreement.

 

Give me few mins and i will post the letter.

[CatAndMouse]

Hi dadofholly

 

Ordered it over the phone, took a few weeks to get agreement off them to sign, they then emailed me the agreement etc, before i signed sent the agreement i emailed them this question:

 

 

I've signed the 3 forms required, but before I send them can you answer a question I have concerns about.

 

If in a worse case scenario, the business fails and I return the server, what happens regarding the balance owing?

 

 

Reply was (dated 20th):

 

 

In case, if you are unable to pay the balance you can return the system and you will get a early settlement figure at that point.

 

I trust this is to your satisfaction.

 

 

Then on the 23rd i sent the documents, on the 24 changed my mind and emailed then, then agreement signed by them on 25th, equipment they claim was already in production, how can it be, when agreement was not yet sent or signed by them and i cancelled day defore signing!!

 

Then about 10 days later equipment arrived by courier.

 

CAM

Already sent cca to dca, funny thing is, the signature on the cca that dca sent back is not the same as the one i have on my agreement

Edited October 15, 2010 by CatAndMouse
added cca info

[dadofholly]

Already sent cca to DCA, funny thing is, the signature on the cca that dca sent back is not the same as the one i have on my agreement

 

Your signature or theirs?

[CatAndMouse]

Hi dadofholly

 

Theirs.

CAM

[dadofholly]

Does yours match exactley the one on the original agreement?

 

Trace the original and overlay it on the new agreement if unsure - if they match "exactley" they have possibly forged the agreement.

 

This would not be a signed copy of the original and may be unenforceable. But i would need someone else for their views on that.

[dadofholly]

I would definatley send PC World a Subject Access Request to see what comes back.

 

Have you done one beofre or would you like me to sort the template for you?

[CatAndMouse]

Hi dadofholly

 

No need, their signature is completly different to the one on my agreement. Their signature on my agreement nearly goes off the page and is in blue ink, and my signature looks like it has been photocopied. My signatures on the dca cca look to have been photocopied and their signature is smaller and does not look like it has been photocopied

 

CAM

SAR already done thanks

Edited October 15, 2010 by CatAndMouse
added sar

[Revenant]

Hi CAM

I think you may have a course of action via the Distance Selling Regulations and have added a link for you . .

http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf

If you read through you'll find that certain information has to be supplied and the time scales involved but (As I read it) the relevant part is 3.38 . . .

n the supply of goods made to the consumer’s own specification

such as custom-made blinds or curtains. But this exception does

not apply to upgrade options such as choosing alloy wheels when

buying a car; or opting for add-on memory or choosing a

combination of standard-off-the shelf components when ordering

a PC, for example

 

I hope this gives you a bit more help

Good luck

R

[dadofholly]

Send this to PC World Head Office

 

enclosing a £10 Postal Order

 

Lets see if we can get a bettwer idea of time lines etc via call logs or other paperwork

 

Data Protection Act 1998

 

 

 

Subject Access Request

 

Dear Sir/Madam

 

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

 

1. The original signed, executed credit agreement/s and any terms and conditions that applied to the account/s at the time of default and at the time the account/s was/were opened.

 

2. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account.

 

3. True copies of any notice of assignment and default notices or enforcement notice that you/or name of the original creditor sent me, with a copy of any proof of postage that you hold.

 

 

 

4. Documents relating to any insurance added to the account/s, including the insurance contract and terms and conditions, date/s they were/ it was added and deleted. (if applicable).

 

 

 

5. Details of any collection charges added to the account/s; specifically, the date they were/it was levied, the amount of the charge, a detailed financial breakdown of how the charge was/charges were calculated, and what the charge covers/charges cover.

 

 

 

6. Specific details of the fees/charges levied by any other agency in respect of this account/these accounts and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

 

 

7. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

 

 

 

8. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

 

 

9. Copies of statements for the entire duration of the credit agreement/s.

 

 

 

10.Termination notices

 

PLEASE NOTE that unless otherwise stated by yourselves and if the above documents are NOT provided, it will be CONFIRMED that you are unable to reproduce/provide in any way shape or form any copies of the above requested documents. You are reminded that you have a duty to inform me if you do not have the above documents. This is confirmed in High Court Law - Ezsias v Welsh Ministers - [2007] All ER (D) 65 (Dec)

 

You are reminded that you are obliged to supply all the above documents in line with the Information Commissioners Technical Guidance update (Dated August 2007)

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

Yours faithfully,

PRINT YOUR NAME (Do Not Sign)

[dadofholly]

Ok have you received your SAR?

 

Thanks Revenant for joining in.

 

Revenant is correct about 3.38 in the guidlines and this is your best defence. Though you just need to check the detail in 2.13 to make sure they don't apply to you.

 

Need to be sure about it being your own spec.

 

If Revenant is correct about "off the shelf" parts - and you did not need any special software to be written for you - then they have not complied with the regs.

 

You will need to argue point 3.38 with them as your defence.

[CatAndMouse]

Hi All

 

Sorry for delay in replying, had to pop out.

Will read the oft guidelines, one thing when i mentioned custom what i ment was 'I told them how much memory i wanted, size of drive and number of processors.'

 

CAM

 

have not yet received sar

Edited October 15, 2010 by CatAndMouse
sar info

[dadofholly]

Hi All

 

Sorry for delay in replying, had to pop out.

Will read the oft guidelines, one thing when i mentioned custom what i ment was 'I told them how much memory i wanted, size of drive and number of processors.'

 

CAM

 

have not yet received sar

 

Be worth waiting untill you get the SAR back - sometimes there are little nuggets in them.

 

Need to check up on the "off the shelf parts" bit - but i would fight it anyway - they would have trouble in court with that Aggreement.

 

 

apply to upgrade options such as choosing alloy wheels when

buying a car; or opting for add-on memory or choosing a

combination of standard-off-the shelf components when ordering

 

 

a PC, for example

 

 

 

REVENANT - Do you have a link for this? It's the info i have been trying to locate since thread started. Think if accurate will kill the agreement.

 

Good luck CAM and come back when you get your SAR.

[Revenant]

Hi All

 

Sorry for delay in replying, had to pop out.

Will read the oft guidelines, one thing when i mentioned custom what i ment was 'I told them how much memory i wanted, size of drive and number of processors.'

 

CAM

 

have not yet received sar

 

Hi CAM

IMO this is now getting easier for as I understand things what you ordered were just readily available upgrades and no special software was invovled

I've just been on to PC Worlds "Business" page re servers and looked at their T & C's . .

Cancellation

 

14. You cannot cancel a submitted order after the goods have been dispatched, unless this is agreed in writing by our authorised representative.

 

I assume that the T & C's have not changed so as you notified them of your wish to cancel before they sent the goods out you have complied with the T & C's plus they seem to have started building your server before you confirmed the order

R

ps Thanks doh (Love the comment you made about your "Initials" in another post )

[CatAndMouse]

Hi All

 

Thanks, had a quick look at oft doc,

 

2.13 Does not apply to me, as i never saw the equipment, i only told them what i needed, i.e memory, size of hard drive etc.

3.38 Well i suppose memory, harddrive are classed as of the shelf parts.

 

So the fact that i emailed them 1 day before they signed the agreement to cancel makes the agreement viod.

 

Do you think i should ask for the money i paid back as they went ahead with the agreement against my written consent.

 

CAM

 

P.S Revenant did i put a 'u' instead of 'a' in CAM

[Revenant]

Be worth waiting untill you get the SAR back - sometimes there are little nuggets in them.

 

Need to check up on the "off the shelf parts" bit - but i would fight it anyway - they would have trouble in court with that Aggreement.

 

 

 

REVENANT - Do you have a link for this? It's the info i have been trying to locate since thread started. Think if accurate will kill the agreement.

The link to Distance Selling Regs is my post at 14

Good luck CAM and come back when you get your SAR.

[/left]

 

Hi CAM

Please see above

R

[Revenant]

I know this is not actually definative but it does help sum up our thougyts re "Off the shelf" . .

Commercial off-the-shelf

 

From Wikipedia, the free encyclopedia

 

Jump to: navigation, search

Commercial, off-the-shelf (COTS) or simply off the shelf (OTS) is a term defining technology which is ready-made and available for sale, lease, or license to the general public. The term often refers to computer software or hardware systems and may also include free software with commercial support.

 

Anyone can now buy upgraded memory cards/hard drives etc

R

[CatAndMouse]

Hi R

 

Seems i could have a good defence, because of the following:

 

1) 3.38 in oft regs

2) failure to cancel agreement even through i emailed them to do so.

3) defective dn as arrears wrong by 25% and they claim i owed £500+ just 22 days after they signed the agreement

4) false signature on agreement, does not match the one i have.

 

I'll wait and see what dca comes back with

 

Thanks for the help.

CAM

[dadofholly]

Hi All

 

Thanks, had a quick look at oft doc,

 

2.13 Does not apply to me, as i never saw the equipment, i only told them what i needed, i.e memory, size of hard drive etc.

3.38 Well i suppose memory, harddrive are classed as of the shelf parts.

 

So the fact that i emailed them 1 day before they signed the agreement to cancel makes the agreement viod.

 

Do you think i should ask for the money i paid back as they went ahead with the agreement against my written consent.

 

 

In Short yes.

 

Contact them and ask for their complaints procedure and begin to make a formal complaint asking for ALL your money back.

 

Make complaint in writing so you have a paper trail.

[Revenant]

Hi R

 

Seems i could have a good defence, because of the following:

 

1) 3.38 in oft regs

Worth the read

2) failure to cancel agreement even through i emailed them to do so.

The SAR should show this up

3) defective dn as arrears wrong by 25% and they claim i owed £500+ just 22 days after they signed the agreement

I'm pretty sure that a defective DN is enough on it's own

4) false signature on agreement, does not match the one i have.

This will be hard one for them to explain away

I'll wait and see what dca comes back with

 

Thanks for the help.

CAM

 

Oh well I guess that for now you'll have to wait for the reply to your SAR and get ready to live up to your name CAM

Will catch up on this later as I'm not working today and the pubs calling

R