Xercise4Less and Harlands. Odd situation?

[Toolio91]

Hi all,

 

Having read advice regarding similar situations regarding X4L and Harlands I am really hoping you can lend a helping hand.

 

This is the email which I sent to the manager of my local gym. I understand from a phone call with the citizens advice bureau that some of my points do not apply, specifically those to do with not being shown a contract at the time of registration and also what I thought to be an improper method of registration. I would like to draw your attention however to the paragraph about item 16 in their terms and conditions as shown in red.

 

Hi xxx,

 

Thanks for your reply. More detail of the situation is required for clarity - I came home on Monday (21st) to find a letter from a company called Harlands claiming I owe them a ridiculous amount of money owing to cancellation of services to do with Xercise4Less (X4L) - this, they claim, is the second letter which has been sent to me, but this is the first I have received. Further to this, I am completely bewildered as to why I was not first contacted by X4L directly, rather than an outside party, to discuss the circumstances detailed in this email.

 

When I signed up in February, with you in fact, I was shown no form of contract nor did I sign one at the time of registering for the gym. In fact, I distinctly remember writing my details down, by the front door, on a piece of paper which was taken from the till machine - hardly an official document detailing all the aspects of joining up. As a result, at the time of signing I was not made aware of any contractual obligations related to using and paying for the gym.

 

I paid a £20 (or thereabouts) joining fee which I assumed could be renewed on a rolling basis every month/I could cancel whenever I liked - I was not made aware of the minimum 11 months payment at the time of signing, which I have only just discovered is the case, and frankly had I known, I would not have gone ahead with signing up.

 

I only visited the gym on a handful of occasions at varying times of day and was utterly disappointed at the standard of services offered - every time I went in I had to wait for an unacceptable amount of time for any equipment to become available and when it did become available, I had to spend even more time wandering the weights area trying to scrape together what I needed from various places. In other gym establishments which I have used there has been a full set of required weights and bars per rack/machine, as one would expect. This, coupled with out of order showers, toilets and blood pressure monitor in the mens' changing area on more than one occasion, was enough for me and I have not returned since, or given notice that I wanted to keep my payments going as I was not aware that this was necessary at the time. I am not insinuating that this is your fault personally but I find it extremely difficult to believe that you find this to be an acceptable standard of services by what is supposed to be a reputable gym company.

 

Since receiving this letter from Harlands, I have checked through my emails to find a contract/terms of use in an attachment and a hyperlink in an email as well as details of what Harlands do and the payment terms. I must add that the presence of this contract in the email was mentioned very briefly in the body of text and was therefore not obviously enclosed - I would argue that this is an important document and attention should be drawn to it as a matter of paramount importance. This email was sent by X4L/you on the day of registering, but again I must emphasise that this was sent to me after registering - the email was received by me at 19.40 on the 9th of February whereas I signed up with you at approximately 19.10 on the same day, as per our prearranged registration appointment at 7pm, as discussed over the phone the week previously.

 

Because of the circumstances described in paragraph 3 of this email, I do not believe that I am under any contractual obligation to pay the money owed to Harlands (comprising 'administration fees' as well as membership arrears as passed on to them by you) or to stay as a member of X4L. However, if, for whatever reason, this is not accepted (which I will vehemently challenge) and you insist that I am in fact under contractual agreement (which I will again stress is not the case owing to the situation described in paragraph 3 of this email), I will draw your attention to item 16 of your/Harlands' contract which states the following - "16. Breach: This agreement can be cancelled if we are in breach of contract including if we do not provide facilities or services you may reasonably expect and we have fallen well below that standard." Paragraph 5 of this email which details my dissatisfaction of the services provided more than satisfies this particular ground for cancellation. As a gesture of goodwill however, I am willing to make a single payment of £9.99 only, to cover the month of March 2015 as per the 30 days cancellation period stated in the contract.

 

I wish to have no further dealings with Harlands as I deem this to be the sole responsibility of X4L in regards to resolving this matter as swiftly as possible and without further complication. I will only discuss this matter further in writing.

 

Regards,

 

Toolio

 

The situation I am in now as stated by the 2nd letter from Harlands is that I owe something in the region of £165 comprising of 'administration fees' and membership arrears.

 

The most I am willing to pay is the monthly membership but based on my argument regarding item 16, I am hoping I can get out of it all together.

 

In addition to the above, after a pathetic response from the manager I was going to write a second email. I have refrained from doing so for now in favour of seeking advice on here.

 

In summary he did not address any of the points in my email so I was going to write the following:-

 

Also, what is your response to my mention of item 16 in your contract? There is no mention of how to cancel the contract, if tied to it, on the grounds detailed here. The statement "Please note – ANY Cancellation for the above reasons will not be effected until the appropriate proof is provided and received (in writing or via email) by Harlands or the club." is written as part of item 15 - thus this does not apply to item 16. Therefore, your contract does not dictate that on the grounds of item 16 that I am obliged to give notification of cancellation.

 

What are the thoughts of the wise people on here?

 

Let me know if you require any more information.

 

Many thanks in advance.

Edited April 28, 2015 by slick132
Name removed

[Bazooka Boo]

Hello, and welcome to CAG.

 

I didn't spend too much time reading all of that,

so in a nutshell what is the problem you're having with the gym?

 

Ignore Harlands, deal with the gym direct.

 

Did you join and sign a contract?

12 months? 6 months? a day??

 

How far into it did you stop going?

What were your reasons for this?

Did you cancel your direct debit?

Did you inform the gym in writing that you wanted to cancel the contract?

Were you ill, injured, moved out of the area?

[Toolio91]

Thanks for the prompt reply. I apologise for the long message, it just had everything in it that I would be repeating here but here it is in a nutshell.

 

I went to register at the beginning of February, was shown no contract and 'signed up' to the gym by writing down my details on a piece of paper from the till machine.

It seems like I entered into an agreement for the usual 12 months minimum. (Line 1 of their contract - This agreement commences once you have indicated your acceptance in the Declaration section of the web sign up process or once both

parties have signed the agreement. As mentioned, I signed nothing but a piece of paper. Where do I stand with this?)

 

- I stopped going to the gym after around a month at the most I'd say.

- I stopped going because I feel that the services being provided were very inadequate to the point I was demoralised and didn't work out for ages. I suffered very long waiting times for equipment and when I got the equipment, I had to spend even more time trawling the free weights area for weight plates. One would think there would be a complete set for each machine which required them - apparently not. There was also the problem of out of order showers, toilets and the very useful blood pressure/heartrate monitor. This occured on more than one occasion and not on consecutive days.

- I cancelled my direct debit. I did not inform the gym of doing so because from how I have read the contract, I did not need to. This is what I was referring to with the following paragraph:-

 

Also, what is your response to my mention of item 16 in your contract? There is no mention of how to cancel the contract, if tied to it, on the grounds detailed here. The statement "Please note – ANY Cancellation for the above reasons will not be effected until the appropriate proof is provided and received (in writing or via email) by Harlands or the club." is written as part of item 15 - thus this does not apply to item 16. Therefore, your contract does not dictate that on the grounds of item 16 that I am obliged to give notification of cancellation.

 

I was not ill or suffering from injury or anything. I am/was basing my cancellation purely on Item 16 of their contract which states:-

 

16. Breach: This agreement can be cancelled if we are in breach of contract including if we do not provide facilities or services you may reasonably expect and we have fallen well below that standard.

 

I haven't yet sent any correspondence to Harlands. How should I proceed based on the information I have provided?

 

Thanks again!

Edited April 21, 2015 by Toolio91

[slick132]

Hi there. Please see the PM (Private Message) I have sent you.

 

The number of times you used the gym is irrelevant.

 

You should have been more careful to find out what you were joining up to. However, your not the first to be caught out like this and you won't be the last !

 

If you were unhappy with the facilities, you should have raised this with staff and the gym manager, followed by a written complaint if the issues continued.

 

I understand what you're saying about Clause 16 and the gym's Breach of Contract for not providing reasonable facilities. This may be of some help to you but it would have been better if you dealt with it differently.

 

Did you just give your personal and bank details to them at the gym, without you signing up on their computer system.

 

Did they not ask you to "click" your consent in a Tick Box ?

 

No more huge letter to the gym for now. They're a waste of your time and will get you nowhere. We'll help as best we can once we have the info we need.

 

Ignore Harlands or CRS for no and stay OFF the phone completely.

 

[Toolio91]

Thanks for your reply slick.

 

Personal details were given to the gym in what I would deem an unofficial manner but for the life of me I can't remember if I went near a computer screen before entering the gym. I suppose the answer would have to be yes to be on the 'safe' side...

 

I think I have until the end of the month to address this second letter.

 

I shall await your advise before doing anything else.

 

Many thanks.

[slick132]

Hi Toolio,

 

Even if YOU didn't tick a box on their computer system, THEY probably did this when putting you on the system. And it could be argued that you were complicit in the sign-up by giving your bank and other details.

 

Also, you rec'd the email from Harlands setting out the T&C's about the 12 month agreement.

 

We'll help you, of course, but this is a less clear-cut case than many others.

 

Please confirm, did you complain to gym staff about the problems mentioned earlier about waiting times and incomplete weights equipment.

 

If so, how did they respond.

 

Otherwise is there any reason you did NOT raise these concerns.

 

Don't worry about how long you have to reply to Harlands - they have no authority to demand a reply by a certain time.

 

[Toolio91]

Slick123,

 

I understand that the sign up process is a grey area and since I have no proof, other than my own word, it's maybe not best to pursue this aspect of my situation. Would you agree?

 

I complained to a member of staff on one occasion about the long wait times and I received an apology and was told that the message would be passed on so I can only assume that this person wasn't of managerial status, or similar. This was only done in person whilst I was in session at the gym however and not done in writing unfortunately.

 

No more complaints were raised as this complaint was mentioned in my penultimate, if not final, time visiting the gym. Beyond this nothing else was said as I, perhaps foolishly, turned to item 16 of the contract.

 

Do charges of something in the region of £165 seem a bit much/disproportionate for only 2 month of misses membership, which on brief calculation should only amount to 2 x 9.99 (membership) + 2 x 25 ('administration fees') = approx. £70?!

 

Obviously it's not as clear cut...

 

Thanks.

[slick132]

Hi Toolio,

 

The sign up process IS a grey area, particularly as it's difficult to work out WHO is providing what service - the gym providing gym facilities, or Harlands providing DD collection services !!

 

I suspect they are now seeking to collect the full year's fees because you're in arrears, plus admin fees. That's why the demand is so high. They'll keep adding admin charges but these should be challenged.

 

I would argue on 2 fronts :-

 

1. That you were not told you were signing up to a year's membership.

 

2. You were never invited to sign any agreement - only a DD mandate.

 

3. The facilities fell well short of what you reasonably expected.

 

Do you agree ?

 

Also, please confirm that you DID sign a DD mandate but you have no copy of it.

 

[Toolio91]

Hi again slick!

 

According to the letter I 'owe' just shy of £160 which does make sense since I only paid the £20 joining fee.

 

I would definitely agree with points 1 and 3. I do agree with 2 as well but I simply cannot remember which pieces of information may or may not have been shown on the screen, where I apparently ticked consent... (?!)

 

Similarly I cannot confirm anything in regards to a DD mandate, I have no documentation.

 

The letter from Harlands states I must respond by 23rd April, tomorrow. I know you said not to contact them but would it do any harm to send them an email to the address on the letter to include the following?:-

 

1) No first letter was received therefore I will only deal with the matters as outlined on the first letter which was apparently sent out to me. Had I received this first letter I would have acknowledged it promptly (as I would be doing now with this one!!)

 

2) The account should be placed on hold whilst I investigate the matter of cancellation and incurred fees.

 

3) Possibly request a breakdown of the total costs incurred? (More to keep them sweet that my actually needing the information...)

 

As with most people I am at the stage now where I just wish to put this matter behind me. If that means agreeing to carry on paying the direct debit as originally 'agreed', I would be okay with that to be honest, it's only £10 a month. The letter states that if I am undergoing any sort of financial difficulty then they would agree to reduce fees - this most definitely applies to me as of the 1st May.

 

Many thanks again, you are a great help.

[slick132]

Hi Toolio,

 

Ok, looking at this from another angle .......... If you could get agreement from the gym to reinstate the m/ship and continue to pay the £10 monthly fee through to the end of your 12 month term, would you be willing to use the gym again, despite the equipment problems.

 

If so, we can help you negotiate this with the gym.

 

And, if Harlands continue to insist on payment of admin (penalty) charges, you can simply cancel due to Harlands failure to treat you fairly.

 

[Toolio91]

Slick,

 

I've since found other arrangements for a gym but for the purposes of settling this dispute I would be willing to reinstate the gym membership, but I would be very unlikely to actually use it, I doubt that this would have an impact on the proposal however as I would not disclose my intentions of use to them.

 

From what you are saying this is likely to be the best and shortest way to resolution.

 

Is there little to no point in sending any sort of correspondence to Harlands then? Even just to say that I am looking to negotiate with X4L on reinstatement of my membership, therefore I wish the matter to be put on hold?

 

I know you are experienced in this matter so please forgive my sheepishness!

 

Regards.

[slick132]

If you have another gym lined up that you'd use instead, there's little point in paying for this one too. So there's no point in negotiating with the gym to reinstate.

 

I would write to Harlands saying :-

 

I cancelled my DD mandate because the gym facilities fell well below the standards I expect. I cancelled in accordance with clause 16 of the gym's T&C's.

 

I was never told that my bank details would be used to set up a membership with a minimum 12 months term and I don't believe I signed such an agreement. If you think otherwise, please send me the signed agreement.

 

I am not willing to pay your admin fees. These are disproportionately high and amount to penalty charges. As such, they are not enforceable.

 

I have already found another gym and am happy to pay them from now on.

 

If you want me to pay a final month's fee of £9.99 for the notice period, I will pay this but only when you confirm you'll accept it in full settlement of all that I owe.

 

Short and to-the-point. Let us know how Harlands respond.

 

[Toolio91]

Thanks for the reply and corresponding advice slick.

 

I have contacted Harlands via their email address supplied on the letter using your template as a basis.

 

I shall post again on this thread as soon as I hear anything.

 

Thank you for your time and I will be in touch.

[Bazooka Boo]

Guarantee they will refuse your generous offer, at which point you can refuse to contact them further.

[Toolio91]

Hi again everyone,

 

Following on from this email which I sent to Harlands customer services:-

 

To whomever it may concern,

 

I am writing in regards to a letter from you dated 9 April 2015 which I

received to my place of residence on Monday 20th April 2015. It concerns

the following details:-

 

Harlands Agreement No.: 32748813

Xercise 4 Less Reference No.: W8385282

 

Your letter refers to an account held with you which is in arrears,

amounting to £159.89, owing to missed payment of a direct debit.

 

I cancelled my direct debit mandate because the gym facilities fell well

below the standards I expect and as such I cancelled in accordance with

clause 16 of the gym's terms and conditions which states:-

 

"16. Breach: This agreement can be cancelled if we are in breach of

contract including if we do not provide facilities or services you may

reasonably

expect and we have fallen well below that standard."

 

In addition to the above, I was never told that my bank details would be

used to set up a membership with a minimum 12 months term and I don't

believe I signed such an agreement. If you think otherwise, please send me

a copy of the signed agreement.

 

I am not willing to pay your administration fees - they are

disproportionately high and amount to unfair penalty charges - as such,

they are not enforceable. Furthermore, they are incorrect as no first

letter was received by me, otherwise I would have responded within the

requested period, as I have done with this email.

 

If you would like me to pay a final month's fee of £9.99 for the notice of

cancellation period I will pay this but only when you confirm that you will

accept this amount as full and complete settlement of all that I owe.

 

If you fail to acknowledge my offer within 14 days starting from today, or

if you demand any further administration fees, despite this correspondence,

my offer will be withdrawn and I may ignore any further demands in relation

to this case.

 

I will only deal with this matter any further in writing.

 

Yours sincerely,

 

Toolio

 

I received this response from Harlands this morning:-

 

Dear Toolio

 

Thank you for your email.

 

We can confirm that a letter was sent you confirming you had incurred a charge and confirming the cancelled direct debit as when you joined Xercise4Less, you signed yourself into a 12 month contract.

 

Cancelling the direct debit does not cancel this contract. Xercise4Less deal with their own cancellations so if you are wanting to close this membership, please contact the gym directly whom will allow you to fill out a cancellation form and go through the details with you there.

 

For all Enquiries Call Harlands : 01444 449166 () Quote Reference : 32748813 / CC

 

Office hours: Monday to Friday, 9am - 5pm

 

Yours sincerely,

 

Harlands

 

Seems like this correspondence has left the situation open ended. 1) As far as I can read into their reply, no acknowledgement was made of my offer... 2) Am I right in thinking that, from their perspective of collecting money, they should have stated in this email that I still owe them?

 

Thanks in advance again!

 

I look forward to hearing from you.

Edited April 28, 2015 by slick132
Names removed

[Bazooka Boo]

Seems these fools still don't understand that cancelling your DD is tantamount to cancelling your agreement.

 

Typical garbage spat out by their zx spectrum!

[Toolio91]

I'm inclined to agree? According to the contract my grounds for cancelling (item 16.) doesn't even have any requirement for letting them know I'm cancelling. It says below item 15 and above item 16

 

Please note – ANY Cancellation for the above reasons will not be effected until the appropriate proof is provided and received (in writing or via email) by Harlands or the club.

Therefore it doesn't apply... Surely?

[slick132]

Hi Coolio,

 

I've removed your name from the correspondence

 

Harlands will probably continue to seek payments from you unless and until the gym tells them otherwise.

 

I normally advise that you continue to only deal with Harlands, despite what they say about the gym dealing with their own cancellations. I see no point in contacting the gym further as you said in post #1 that the manager replied in a "pathetic" manner.

 

I'd send Harlands a further email which you should keep as brief as possible :-

 

I refer to your email of 28th April.

 

I wrote to Harlands because you deal with admin matters for the gym.

 

I have nothing to add beyond what I said in my previous email to you.

 

My offer to pay you £9.99 remains open until 7th May.

 

See what comes back.

 

[Toolio91]

Thanks for that slick - you're very on point!

 

I'll roll with your idea, seems reasonable. They either deal with the admin or the don't they shouldnt' be passing the buck on the situation really.

 

Just to make sure I'm not being unreasonable - this is the reply, in its entirety, which I received from the manager to my very first email to X4L (shown in my first post).

 

Hello

 

If you wish to cancel please come in to the club and sign the correct paperwork then providing you are out of your agreed term we can cancel -if you are still in term but moving away please provide proof of relocation and we can cancel

 

As you can see, none of my thoughts are address at all.

 

If you agree, I shall proceed with emailing them as per your advice.

 

Thanks

[slick132]

Lol. The gym manager believes in keeping replies very short.

 

Send Harlands the response I posted. This is not going to be the end of it but you have no better option IMHO.

 

[Toolio91]

Okay thanks, done!

 

Will post on here when I hear back.

[Toolio91]

Hi again everyone,

 

Harlands response as follows:-

 

Dear Toolio

 

Thank you for your email regarding your membership with Xercise 4 Less, we apologise for the delay in our response.

 

We can confirm that the membership cancellations are dealt with by the gym directly, we have not received any correspondance in regards to cancelling your membership.

 

If you believe that your membership should have been cancelled, we would suggest that you contact Xercise 4 Less again.

 

Until we receive instruction from Xercise 4 Less to cancel your membership, payments will remain due. We therefore ask that you contact Xericse 4 Less as soon as possible or call the Harlands helpline on 01444 449166 to make payment of £69.98 to clear your arrears.

 

To avoid any further action taken on your account, please ensure that this matter is closed either with payment or cancellation by the 11th May 2015.

 

For all Enquiries Call Harlands : 01444 449166 () Quote Reference : 32748813 /

 

Office hours: Monday to Friday, 9am - 5pm

 

Yours sincerely,

 

Harlands

 

Interesting that they have dropped the fees!!

[slick132]

Final reply to Harlands :-

 

The High Court case of The OFT v Ashbourne Mgt Svs Ltd confirmed that cancellation can be made to either a gym or it's admin company.

 

I ended my membership agreement by cancelling the DD mandate, a manner said by Mr Justice Kitchin to be adequate notice of intent, in his High Court ruling in the above case.

 

You have until 7th May to accept my offer of £9.99.

 

[Toolio91]

Hi slick!

 

I'm being cautiously optimistic but I can see the light at the end of the tunnel!

 

are you able to direct me to where I can see this part of the ruling? I am unable to find it myself!

 

Thanks

[slick132]

Hi Toolio,

 

With Harlands/CRS, this may be a long tunnel !!

 

The Stickies at the top of the gym forum include this thread - http://www.consumeractiongroup.co.uk/forum/showthread.php?320766-Ashbourne-Management-Services-Ltd-Contracts-longer-than-12-months

 

The court case was back in 2011 but Harlands have repeatedly denied that it applies to them, stating that it only refers to the AMSL case.

 

However, a High Court ruling sets legal precedent that can be applied to, or relied on, in similar cases, whether with a gym or another type of membership.

 

The Penal Order made by Mr Justice Kitchin confirmed how one can cancel at point 16(ii) here - http://webarchive.nationalarchives.gov.uk/20140402142426/http://www.oft.gov.uk/shared_oft/consumer-enforcement/ams/order.pdf