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Help with Distance Selling Regs


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Can anyone help me with Distance Selling Regulations problem.

 

The story so far (sorry its long winded but want you to know all the facts).

 

My friend owns a small business and pays his staff in cash, so for the last year he hasnt done any payroll. He got a date for a VAT inspection and panicked, so I said I would help. I did not charge him for this help or work for him - just a friend helping a friend.

 

I found payroll software on the net and called the company (Iris Software) from my home phone. They asked me the company name and as it would be registered to my friends business I gave them the company name but I did explain I don't work for the company.

 

I paid £227 including VAT for the software on my personal debit card and had the software sent to my home address.

 

After about an hour my mother came home and said she already had payroll software. I called to cancel the order and was told they didnt think I could but they would get Irene to call me back. Of course she didnt.

 

My Mum called Trading Standards and they said I had 7 days to cancel under Distance Selling Regulations.

 

The next day the software arrived, with the invoice in one of those plastic wallets stuck to the outside. I opened the invoice to get the address to send it back to. I did not even open the envelope, just put it inside a larger envelope and sent it back with a letter explaining I was cancelling under Distance Sellings Regs.

 

Today they called me at home and said they had checked with their legal people and could not accept return of the goods because it was a business transaction and therefore doesnt come under distance selling regs. They also said there was the issue of Copyright Law. When I pointed out that I called to cancel just an hour after I placed the order they said that they dispatch orders very quickly and it wouldnt be possible to go to the warehouse and cancel the order - don't they have phones?

 

I explained all the above and asked how this could be a business transaction and pointed out that I returned the software unopened, even the envelope was unopened so it would not have been possible for me to copy the software. They said they would contact their legal people again.

 

Where do I stand? Was this a business or personal transaction? Is returning the software unopened not proof that no copyright law was broken?

 

What do I do now? Please can anyone help?

 

I was told in the chat room to cancel my debit card and get a form to claim the money back from my debit card but then someone said this couldnt be done. Am so confused and very angry.

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This isn't my area at all I'm afraid so hopefully someone else will be able to give you the correct advice - I'm not aware that even if they could argue 'business to business ' transaction this would affect your statutory rights to cancel in any case. There is only an exemption relating to cancellations of orders relating to software where software has been opened which it clearly hasn't in your case.

 

With reference to your debit card, I think this may be being confused with a credit card? As essentially money doesn't come from your debit card as such but from your own current account... hope this makes sense!

 

Good luck with this :)

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This isn't my area at all I'm afraid so hopefully someone else will be able to give you the correct advice - I'm not aware that even if they could argue 'business to business ' transaction this would affect your statutory rights to cancel in any case. There is only an exemption relating to cancellations of orders relating to software where software has been opened which it clearly hasn't in your case.

 

With reference to your debit card, I think this may be being confused with a credit card? As essentially money doesn't come from your debit card as such but from your own current account... hope this makes sense!

 

Good luck with this :)

 

Thanks for your input. My worry of course is that I can't prove it was sent back unopened and of course if push came to shove they would lie. I wonder whether their lack of a 'returned to us opened' letter would stand up in court?

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The Distance Selling Regs do only apply to consumer sales. If the software was purchased for use in a business (and it does seem to be designed for business use) then you wouldn't be able to rely on the Regs, as they are designed for consumer protection only.

Please note I'm not insured in this capacity, so if you need to, do get official legal advice.

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Unfortunately not. Business to business transactions have significantly less protection in every area than consumer transactions do. I would imagine bearing in mind the nature of this software that you would find it tricky to prove it was not for use in a business.

 

Sorry for the bad news - wish there was something else I could say but sadly that's how the law stands.

Please note I'm not insured in this capacity, so if you need to, do get official legal advice.

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Was the software your mother had free, as in she didn't have to pay for it? If not you would probably have been in breech of the license agreement and or copyright by giving a copy to your friends business. If they were happy to pay for this software in the first place then it shouldn't really matter now.

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Was the software your mother had free, as in she didn't have to pay for it? If not you would probably have been in breech of the license agreement and or copyright by giving a copy to your friends business. If they were happy to pay for this software in the first place then it shouldn't really matter now.

 

Yes the one my mother had was free. The problem is my friend can't afford to lose £227 for something he will now never use. And it seems a matter of principle to me, I decided before they even sent the goods that I didn't want them so why can't I cancel my order? His business buys parts for cars etcc and has no problem returning them if he doesnt use them, so why is this different.

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It's different because the place which offers car parts has a policy which allows your friend to return the parts and the software place does not. It's all really down to policy as there is no law to give cancellation rights in a business contract, and you do have a legally binding contract for the software.

 

You will simply have to attempt to appeal to their goodwill, as you would not be able to pursue this matter legally. However as they deal with software they may not be willing to bend, due to the copyright issues - even if the package is still sealed.

Please note I'm not insured in this capacity, so if you need to, do get official legal advice.

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It's different because the place which offers car parts has a policy which allows your friend to return the parts and the software place does not. It's all really down to policy as there is no law to give cancellation rights in a business contract, and you do have a legally binding contract for the software.

 

You will simply have to attempt to appeal to their goodwill, as you would not be able to pursue this matter legally. However as they deal with software they may not be willing to bend, due to the copyright issues - even if the package is still sealed.

 

Please explain the copyright issue Rosie. How could I copy it if I dont open it?

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I just meant that it was unlikely that such a company would offer a goodwill exchange policy when there is always a chance of copying.

Please note I'm not insured in this capacity, so if you need to, do get official legal advice.

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I just meant that it was unlikely that such a company would offer a goodwill exchange policy when there is always a chance of copying.

 

 

It was not a business transaction as it was done on a personal basis so no argument there. A personal debit or credit card was used and the goods were delivered to a private address. Can they prove that you are managing a business?

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I think the nature of the goods themselves would indicate that they were intended for use as part of a business. You've also given them your friend's company name and it was clear that it was for use in his business, as you have said here as well. I think you would have a hard time proving otherwise in court.

Please note I'm not insured in this capacity, so if you need to, do get official legal advice.

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It was not a business transaction as it was done on a personal basis so no argument there. A personal debit or credit card was used and the goods were delivered to a private address. Can they prove that you are managing a business?

 

No they can't, I am not even an employee of a business. I was just trying to help a friend but he didnt ask me to purchase the software.

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But it was bought for the use of the business, so I honestly can't see you being able to argue otherwise here.

 

Looking at their website, it seems that they ONLY supply to businesses and accountants for use as part of a business, so I'm sorry to say it's pretty clear to me.

Please note I'm not insured in this capacity, so if you need to, do get official legal advice.

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I think the nature of the goods themselves would indicate that they were intended for use as part of a business. You've also given them your friend's company name and it was clear that it was for use in his business, as you have said here as well. I think you would have a hard time proving otherwise in court.

 

For peoples info, I just called Trading Standards. They say software can be returned if the cellophane is not damaged or removed. As I returned the goods unopened, in the original envelope that was unopened the company cannot use the ccopyright laws as a means of refusal to accept the goods back. So just the issue of personal or business to sort out now.

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Did you tell Trading Standards that the goods were for use in a business?

 

The DSRs full title is: The Consumer Protection (Distance Selling) Regulations. It's clear even from the title that it's a piece of consumer legislation. It does not apply to business transactions.

 

The software company's website is clear from the home page that their software is designed for business use, and the nature of the programme itself would naturally lean this way too.

 

I'm really sorry to disagree but I honestly don't think you will get anywhere pursuing this matter.

Please note I'm not insured in this capacity, so if you need to, do get official legal advice.

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Did you tell Trading Standards that the goods were for use in a business?

 

The DSRs full title is: The Consumer Protection (Distance Selling) Regulations. It's clear even from the title that it's a piece of consumer legislation. It does not apply to business transactions.

 

The software company's website is clear from the home page that their software is designed for business use, and the nature of the programme itself would naturally lean this way too.

 

I'm really sorry to disagree but I honestly don't think you will get anywhere pursuing this matter.

 

Dont be sorry Rosie am very grateful for your opinions. I told them I bought it on my card, from my home, delivered to my home but to be used in my friends business in the hope the business would give me the money back. They put me onto Consumer Direct who said they deem it a personal transaction. I am still not sure.

 

But someone asked me what their cancellation policy says so I went to the website to look and they dont have one published. Have been told that companies must publish this. So sent them a nice email saying cant find their cancellation policy, Pleeeeease can I have my money back and if not please can they write tome explaining their cancellation policy and directions for where to find this on their website. Obviously I am hoping they will notice the lack of published policy and refund my money.

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I can't find this on their website either, let me know what they say to you.

 

Oh great, was scared you would come back and say look its here you idiot LOL.

 

Will post as soon as I hear from them.

 

Thanks for your input Rosie, was certain I was on a loser but maybe I can get somewhere with the policy issue.

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I hope they do offer you something, it's a bit of a shame that this has happened. If they drag their heels I think you could struggle, but let's hope it won't come to that.

 

(NB, companies do have to include certain info on their websites under the DSRs but again this is only for consumer sales, I'm not aware of anything like this for businesses. However you could argue that they don't make it clear that they sell to businesses only... although again the nature of the products may complicate this... it's going round in circles a bit but hey, worth a try and let me know what they say!)

Please note I'm not insured in this capacity, so if you need to, do get official legal advice.

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  • 3 weeks later...

I WON

 

I got the full amount back. They tried being sneaky and sending the cd to my firends business but he just sent it back 'not known at this address'. I then wrote to the Company Secretary setting out all the details and hey presto full refund.

 

:) :) :)

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