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    • Hello,

      On 15/1/24 booked appointment with Big Motoring World (BMW) to view a mini on 17/1/24 at 8pm at their Enfield dealership.  

      Car was dirty and test drive was two circuits of roundabout on entry to the showroom.  Was p/x my car and rushed by sales exec and a manager into buying the mini and a 3yr warranty that night, sale all wrapped up by 10pm.  They strongly advised me taking warranty out on car that age (2017) and confirmed it was honoured at over 500 UK registered garages.

      The next day, 18/1/24 noticed amber engine warning light on dashboard , immediately phoned BMW aftercare team to ask for it to be investigated asap at nearest garage to me. After 15 mins on hold was told only their 5 service centres across the UK can deal with car issues with earliest date for inspection in March ! Said I’m not happy with that given what sales team advised or driving car. Told an amber warning light only advisory so to drive with caution and call back when light goes red.

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    • We have finally managed to obtain the transcript of this case.

      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

      Frankly I don't think that is any accident.

      One of the points that the judge made was that the customers contract with the broker specifically refers to the courier – and it is clear that the courier knows that they are acting for a third party. There is no need to name the third party. They just have to be recognisably part of a class of person – such as a sender or a recipient of the parcel.

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      We will be getting that transcript very soon. We will look at it and we will understand how the judge made such catastrophic mistakes. It was a very poor judgement.
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      This is good ethical practice.

      It would be very nice if the parcel delivery companies – including EVRi – practised this kind of thing as well.

       

      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
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Breach of Wholesale Contract


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I used to have a retail outlet in London selling my husband's photography.  We also had a co-op with staff so they weren't directly employed by me, but I paid for the other overheads etc. 

When my husband died, I carried on as usual for a while but then I became ill and moved quite far away so logistically was becoming very difficult.

  I came to an arrangement (verbal) with one of the guys I trusted, that I would send him the images to print and sell as normal, and I wouldn't take any money, as a short term solution until I got back on my feet and worked out the best way to do things. He would pay all the  rent, insurance etc...

Over a year later, not able to give things away for free anymore,  I drew up a contract as a wholesale agreement, so I would get everything printed and sent to him and I would invoice his for what he ordered.

I noticed form the beginning that he wasn't ordering enough or frequently enough to be making any money, and was suspicious he was doing his own orders on the sly and ordering just enough from me to keep my happy. 

I checked with my printer, which I've been with for 20 years, and he said  he wasn't getting orders for my images from anyone else. I emailed a few other printers to ask them to keep a look out for some images but I soon realised this would be impossible to police.

  The only option really would be to buy a print from him and check the stamp on the back of it.  I finally managed to get hold of on the prints on sale, and sure enough, he did not order it through me.

In the contract he signed in 2022 it explicitly states that he must destroy all files I had previously sent him etc etc so he is in breach of that.  When I drew up the contract, I was careful to make sure it was legally binding, but before I let rip at him, I need to know where I stand.  The contract is here:

Quote

 

PARTIES
This WHOLESALE AGREEMENT (“Agreement”) is made effective as of 30th June, 2022, by and
between ##############################

The Supplier and the Client, collectively referred to as the "Parties," hereby agree to the
following terms:


TERMS AND CONDITIONS


SALES OF GOODS
The Supplier agrees to provide the following goods to the Client (“Goods”):
Description of Goods
#################################

Doc ID: 3d54c1d336d8780243801e0e068ebd33114b088b

BOTH PARTIES AGREE:
The Client purchases the Goods through the Supplier directly, and agrees to delete/destroy
any previously held digital images (Goods) owned by the Supplier, and agrees not to use any
such files for monetary gain, outside of this agreement, either directly or through a third
party from immediate effect of this agreement.
The Client purchases the other materials necessary for resale of the Goods independently of
this agreement.
The Client shall have exclusive rights for resale of Goods at ###########, and also with
permission, as a retailer of the Goods elsewhere, provided that there is no conflict of
interest between the Supplier and the Client.
The Client is free to decide their own retail prices, for the Goods.
The Supplier shall use #####  to provide the printed Goods on Fujifilm Crystal Archive paper,
with Lustre finish, and will not use any other Printer unless #### cease to trade, without
prior approval from the Client.
The Supplier shall not impose restrictions on size or frequency of orders made by the Client.
The prices provided by the Supplier shall not increase for a minimum of 3 years, unless the
prices of the raw materials rise, in which case the client will be informed immediately.
Any discounts/promotional prices of raw materials shall be passed on to the Client by the
Supplier, and the invoice will show adjustments for this, as well as credit for return postage
of any damaged goods.
This agreement can be terminated by the Client without notice; the Supplier must give
notice of no less than 90 days, unless the terms of the agreement are breached, in which
case, the agreement can be terminated with immediate effect.
PAYMENT
Orders must be paid for upon receipt of invoice, via Bank transfer:
#########

Doc ID: 3d54c1d336d8780243801e0e068ebd33114b088b

DELIVERY AND INSPECTIONS
All orders received by 12.00am (midnight) shall be processed by the Supplier the following
working day and delivery of order shall arrive in accordance with the Royal Mail schedule, or
DPD, should express delivery be requested. The Client shall be liable for the delivery charge
which shall be added to the invoice. The Goods will be delivered to the address specified by
the Client. The Client shall be provided with order tracking, and should any problems arise
with the ordering system or the couriers (Royal Mail, DPD), the Client shall be informed
without delay of any such issues.
The Client will inspect the Goods and report any defects or damage to the Goods in transit
as soon as possible upon receipt of Goods, and will retain damaged Goods for return to
Supplier for refund/replacement.
GENERAL PROVISIONS
CONFIDENTIALITY
The prices of the Goods and other information contained in this Agreement is confidential
and will not be disclosed by either party unless with prior written consent of the other
party.
INDEMNIFICATION
The Client indemnifies the Supplier from any claims, liabilities, and expenses made by any
third party vendors or customers of the Client.
GOVERNING LAW
This Agreement will be governed by and construed in accordance with UK Law.
ACCEPTANCE
Both parties understand and accept the wholesale arrangement stipulated under this
Agreement.

Doc ID: 3d54c1d336d8780243801e0e068ebd33114b088b

IN WITNESS WHEREOF, each of the Parties has executed this Wholesale Agreement as of
the day and year set forth above.

 

Signed by us both electronically.

 

 

I haven't broached any of this yet, and I am looking for some advice about what action to take.  The main issue I've got is that he has still got o those images.  If I terminate the contract, I will need to know that he no longer has those images and I can't think of a bulletproof way to do this.

I'm thinking I might tell him I will continue with the contract but ask for a sum in damages and say that if I find out he's still doing it down the line I will terminate the contract and sue him for damages.

The damages side of things I'm not sure how it would work as he is self employed, and I'm positive he doesn't declare all of his earnings to HMRC, in order to find out how much I have lost, would the court demand to go through his tax self assessments? 

I'm not sure how to proceed with this, I don't want to lose that place as an outlet as it is in a prime spot in London, which is why I let him have those images in the first place as I would have had to pull out altogether at that point.  I am regretting it somewhat now though. 

Please help.

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You are absolutely right to be cautious.

It would be helpful if you will be prepared to send me a private message containing details of the outlet and the address et cetera.
It might help me to get things more into perspective.

So I understand that you had a business selling your husband's photographs. You were unable to continue your direct involvement and so you made an arrangement with a manager who you trusted to carry on the business for you while you were recovering elsewhere in the country.
Is this correct?

This manager has possession of all the files of your husband's photographs. Is this correct?
Do you have any copies of the files?

You made a reference to having a Co-op. Does that mean that you are running a Co-op supermarket or groceries outlet? I don't quite understand here.

In terms of the possibility of continuing the arrangement with this manager – my own view is that you need to bring the arrangement to an end and I don't see how you could trust them.

As far as I can see you are asking about two issues.
Making sure that the files in the manager's position are destroyed so that you regain control of the photographs.
Obtaining some damages for the loss of revenue.

How many photographs do you believe are in his possession?
What you estimate is your loss of revenue so far – probably calculated on your average revenue over, say, the five years before you stopped your involvement in the business?

You are talking here not only about a breach of contract. You are talking also about breach of copyright and frankly you're also talking about deliberate copyright infringement – which is a criminal offence. Also fraud.

Additionally, if you begin the dispute with this person, I would say that they will probably leave immediately. Have you got somebody else to run the business or would that be the moment that the whole thing collapses?
If it is the latter, then this is something else that you need to prepare – somebody to take over as seamlessly as possible

 

Also, do you know the address of this person – and do they own their own home or any other assets?
 

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Thank you, please understand that I'm not proposing to give advice or make suggestions off the forum. I'm simply trying to get private information from you so that I can get a better picture of what is happening.
All of that information – business names, et cetera will be received in confidence

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I understand that you have had difficulty messaging me the information that I asked for.
However, I asked a number of questions above which need to be answered on the open forum and you haven't responded to those.

If you want to get some idea of possible solutions or approaches to this issue then you will need to give us the details that we ask for

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