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  • FIRST POST
    • jcarver007
    • By jcarver007 13th Jul 17, 5:11 PM
    • 46Posts
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    jcarver007
    Difficult Distance Selling
    • #1
    • 13th Jul 17, 5:11 PM
    Difficult Distance Selling 13th Jul 17 at 5:11 PM
    Looking for advice on following that isn't covered as far as I can see elsewhere.
    1) a perishable item is ordered weeks in advance of delivery date. The order is bespoke in the quantity of item ordered and a specific delivery time chosen. Order form completed has cancellation charges if cancelling at short notice and are agreed to on form. No deposit is made before cancelling. Cancellation done 3 days after order placed and 2 weeks before delivery date.
    Are cancellation charges allowed?

    2) An online order form states in t&c's that non payment will result in 10% late payment charges per 7 days of non payment. Is this allowed if agreed to by ticking box for agreeing to terms?

    3) a bespoke service is not bound by 7 days cancellation. Does this apply to a catering service which is booked in advance and the service and foods tailored to client but cancelled before the event date?

    Any advice much appreciated
Page 1
    • wealdroam
    • By wealdroam 13th Jul 17, 5:47 PM
    • 18,650 Posts
    • 15,552 Thanks
    wealdroam
    • #2
    • 13th Jul 17, 5:47 PM
    • #2
    • 13th Jul 17, 5:47 PM
    Looking for advice on following that isn't covered as far as I can see elsewhere.
    1) a perishable item is ordered weeks in advance of delivery date. The order is bespoke in the quantity of item ordered and a specific delivery time chosen. Order form completed has cancellation charges if cancelling at short notice and are agreed to on form. No deposit is made before cancelling. Cancellation done 3 days after order placed and 2 weeks before delivery date.
    Are cancellation charges allowed?

    2) An online order form states in t&c's that non payment will result in 10% late payment charges per 7 days of non payment. Is this allowed if agreed to by ticking box for agreeing to terms?

    3) a bespoke service is not bound by 7 days cancellation. Does this apply to a catering service which is booked in advance and the service and foods tailored to client but cancelled before the event date?

    Any advice much appreciated
    Originally posted by jcarver007
    Why don't you tell us exactly what you ordered, it would save a lot of guessing?

    At first I thought flowers - perishable.

    Then it looks like cakes - maybe perishable too.

    Then you talk about a service - a catering service.

    Just ordering a multiple does not make it a bespoke order.
    For example, if I order two watering cans, that does not suddenly become a bespoke order.

    More information needed.
    • k3lvc
    • By k3lvc 13th Jul 17, 5:51 PM
    • 1,911 Posts
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    k3lvc
    • #3
    • 13th Jul 17, 5:51 PM
    • #3
    • 13th Jul 17, 5:51 PM
    Maybe the question is the other way round - OP is the supplier of catering, has a poor contract/order system and is now trying to recoup money after being cancelled on.
    • wealdroam
    • By wealdroam 13th Jul 17, 5:58 PM
    • 18,650 Posts
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    wealdroam
    • #4
    • 13th Jul 17, 5:58 PM
    • #4
    • 13th Jul 17, 5:58 PM
    Maybe the question is the other way round - OP is the supplier of catering, has a poor contract/order system and is now trying to recoup money after being cancelled on.
    Originally posted by k3lvc
    Yes, you might be right.
    Perhaps the OP can clarify that too.
    • jcarver007
    • By jcarver007 13th Jul 17, 8:21 PM
    • 46 Posts
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    jcarver007
    • #5
    • 13th Jul 17, 8:21 PM
    • #5
    • 13th Jul 17, 8:21 PM
    Hi
    Yes this is coming from a supplier wanting to tighten up the ordering and make sure what we are doing is correct.

    The perishable item was ice cubes. And the order form question related to this. If the ice cubes were ordered with another company to fulfill the order does this affect cancellation charges as we paid other company beforeclient cancelled. If client agreed to terms and conditions with cancellation charges, are these not applicable?
    • angryparcel
    • By angryparcel 13th Jul 17, 8:24 PM
    • 910 Posts
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    angryparcel
    • #6
    • 13th Jul 17, 8:24 PM
    • #6
    • 13th Jul 17, 8:24 PM
    Hi
    Yes this is coming from a supplier wanting to tighten up the ordering and make sure what we are doing is correct.

    The perishable item was ice cubes. And the order form question related to this. If the ice cubes were ordered with another company to fulfill the order does this affect cancellation charges as we paid other company beforeclient cancelled. If client agreed to terms and conditions with cancellation charges, are these not applicable?
    Originally posted by jcarver007
    If you are ordering ice cubes then why dont you just invest in an ice cube maker and then make these yourself as and when you need them
    • waamo
    • By waamo 13th Jul 17, 8:36 PM
    • 2,095 Posts
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    waamo
    • #7
    • 13th Jul 17, 8:36 PM
    • #7
    • 13th Jul 17, 8:36 PM
    How are ice cubes bespoke?
    This space for hire.
    • wealdroam
    • By wealdroam 13th Jul 17, 8:42 PM
    • 18,650 Posts
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    wealdroam
    • #8
    • 13th Jul 17, 8:42 PM
    • #8
    • 13th Jul 17, 8:42 PM
    Tell us more about the service you are providing?

    Ice carving?

    If you have started to provide the service within the cancellation period allowed, without the explicit permission of your customer, then it is you that have taken the risk.
    • unholyangel
    • By unholyangel 13th Jul 17, 11:09 PM
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    unholyangel
    • #9
    • 13th Jul 17, 11:09 PM
    • #9
    • 13th Jul 17, 11:09 PM
    The more specific you can be, the more specific answers you'll get.

    It does sound as though the goods are exempt from the right to cancel under CCRs - Consumer Contract (Information, Cancellation & Additional Charges) Regulations 2013 but you would still have to comply with the other provisions (such as making certain information available to consumers in a durable medium before the consumer is bound by the contract).

    As for the 10% charge, I think you may have problems with that.

    From unfair terms guidance:
    5.14.2 A requirement to pay unreasonable interest on outstanding payments, for
    example at a rate excessively above the clearing banks’ base rates, is
    likely to be regarded as unfair.
    The current BoE base rate is 0.25%. You may be able to argue 10% is reasonable if that is genuinely how much it will cost you but I'm sceptical that that is the case given you're quoting a flat percentage to apply in all cases. In a breach of contract situation, each party is only liable for the reasonable losses incurred as a result of their breach (and the party not in breach has a duty to mitigate their losses). Requiring a party to pay more in damages than you actually suffered as a loss would likely amount to a penalty (unenforceable in english law).

    The same would be true in reverse though. If you breach the contract, you're only liable for actual losses incurred. Your customers can't demand you pay them 10% of the contract price just because you were in breach.

    ETA: Bespoke for the purpose of the regulations (which give 14 days minimum to cancel btw - up to a year & 14 days if you dont provide the consumer with the necessary information) means goods that are clearly personalised or made to the consumers specifications. You might allow your consumers a choice of what they can order but if they're only selecting from options you're giving them then its not bespoke.
    Last edited by unholyangel; 13-07-2017 at 11:12 PM.
    Money doesn't solve poverty.....it creates it.
    • jcarver007
    • By jcarver007 14th Jul 17, 12:50 PM
    • 46 Posts
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    jcarver007
    So if the ice cube order was 240 bags. These were produced for this client who ordered this amount and also picked a time of delivery. I would have thought that was bespoke?
    The BoE interest is something we should look at following. I think the 10% is one we have seen elsewhere.

    A lot of our orders are short notice (within 7 days of event) and payment often comes just before delivery. Hence why we have the cancellation charges. We have often turned away business because a time slot is already filled by a client, only for said client to cancel late.

    My view is then they should be liable to cancellation charges for ice
    Thanks

    Thanks.
    • angryparcel
    • By angryparcel 14th Jul 17, 1:06 PM
    • 910 Posts
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    angryparcel
    So if the ice cube order was 240 bags. These were produced for this client who ordered this amount and also picked a time of delivery. I would have thought that was bespoke?
    Originally posted by jcarver007
    No he has just ordered 240 bags of stocked ice cubes

    bespoke

    (of goods, especially clothing) made to order.
    "a bespoke suit"

    (of a trader) making bespoke items of clothing.
    "the bespoke tailors of Savile Row"

    (of a computer program) written or adapted for a specific user or purpose.
    "completely bespoke software systems"
    • wealdroam
    • By wealdroam 14th Jul 17, 1:23 PM
    • 18,650 Posts
    • 15,552 Thanks
    wealdroam
    So if the ice cube order was 240 bags. These were produced for this client who ordered this amount and also picked a time of delivery. I would have thought that was bespoke?
    Originally posted by jcarver007
    I'm having difficulty with the word ' bespoke'.
    I don't think the legislation uses that word.
    Regulation 28 of The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 list those situations where the right to cancel does not apply.
    It includes:
    (b) the supply of goods that are made to the consumer’s specifications or are clearly personalised;
    If you are offering bags of ice cubes for sale and someone orders 240 bags and asks for them to be delivered on a particular date, they are clearly not 'made to the consumer’s specifications' or 'clearly personalised'.

    However, that same regulation includes:
    (c) the supply of goods which are liable to deteriorate or expire rapidly;
    ...but even then, if they are kept properly the ice cubes should not be 'liable to deteriorate or expire rapidly'.


    My view is then they should be liable to cancellation charges for ice
    Originally posted by jcarver007
    You can't have it both ways - either the order is cancellable or it isn't.
    If you want to rely on the above regulation and thus insist the order is non-cancellable, then a cancellation charge obviously doesn't come into it.

    If however, you want to allow a cancellation, then Regulation 34 is significant. It includes:
    Reimbursement by trader in the event of withdrawal or cancellation

    34.
    (8) The trader must not impose any fee on the consumer in respect of the reimbursement.
    Last edited by wealdroam; 14-07-2017 at 1:25 PM.
    • angryparcel
    • By angryparcel 14th Jul 17, 1:39 PM
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    angryparcel
    How are ice cubes bespoke?
    Originally posted by waamo
    selling 240 bags of Ice Cubes wont be bespoke.

    If it was an ice sculpture to the clients specifications then that would be bespoke
    • sheramber
    • By sheramber 15th Jul 17, 10:37 AM
    • 3,866 Posts
    • 2,874 Thanks
    sheramber
    What are the cancellation terms you have with the company you ordered from?
    • jcarver007
    • By jcarver007 5th Sep 17, 11:13 AM
    • 46 Posts
    • 1 Thanks
    jcarver007
    Tell us more about the service you are providing?

    Ice carving?

    If you have started to provide the service within the cancellation period allowed, without the explicit permission of your customer, then it is you that have taken the risk.
    Originally posted by wealdroam
    So, the work is started once we receive the order form as often the order form comes in short notice (within 2 weeks) so we have to create it at the earliest opportunity in amongst the other orders we have. The order form has cancellation terms on it. The form cannot be submitted unless the box agreeing to the terms is ticked.
    We cannot create a sculpture last moment as it takes a while to create. The terms relating to cancellation charges are to protect us for work carried out once the order is placed.

    With regards to a ice cube order this could mean the cost of the ice cubes we have ordered as most ice orders are large, any admin work and often turning away other orders in order to honour the existing client.

    My view is that an ice cube order can be bespoke if it requests delivery at a specific time and place and not one that we pick, that it is a specific amount of ice, and that we have to order it in as well as book a driver in to deliver it.

    Thanks
    • takman
    • By takman 5th Sep 17, 12:58 PM
    • 2,821 Posts
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    takman
    My view is that an ice cube order can be bespoke if it requests delivery at a specific time and place and not one that we pick, that it is a specific amount of ice, and that we have to order it in as well as book a driver in to deliver it.

    Thanks
    Originally posted by jcarver007
    Well your view is wrong. When have you ever ordered something an not been able to choose the place it is delivered too?.

    Just think when you order an appliance online or in store such as a cooker; you select the delivery date and where you want it to be delivered and the company book the courier.
    Even when you order something small from a site such as Amazon you can select the delivery location and when you want it to be delivered (Next Day, 5 Day, Before 1PM etc). Neither of these are bespoke orders of any kind.
    • SuperHan
    • By SuperHan 5th Sep 17, 1:05 PM
    • 1,985 Posts
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    SuperHan
    So, the work is started once we receive the order form as often the order form comes in short notice (within 2 weeks) so we have to create it at the earliest opportunity in amongst the other orders we have. The order form has cancellation terms on it. The form cannot be submitted unless the box agreeing to the terms is ticked.
    We cannot create a sculpture last moment as it takes a while to create. The terms relating to cancellation charges are to protect us for work carried out once the order is placed.
    Originally posted by jcarver007

    It sounds as though you may be selling to businesses not consumers. If this is the case, then you can add whatever reasonable terms in. You could add a cancellation charge from the time the order is made.


    Your OP states however that they cancelled two weeks before delivery date, which puts them outside of your short notice cancellation window. I would recommend that you only start doing any work on an order 2 weeks out for this reason.

    With regards to a ice cube order this could mean the cost of the ice cubes we have ordered as most ice orders are large, any admin work and often turning away other orders in order to honour the existing client.
    Have you thought about taking a deposit? If you do you could retain this to cover any costs you have incurred in performing the contract.

    My view is that an ice cube order can be bespoke if it requests delivery at a specific time and place and not one that we pick, that it is a specific amount of ice, and that we have to order it in as well as book a driver in to deliver it.

    Thanks

    It neither matters what you view is nor whether it is bespoke. The question is "Is the order made to the consumer’s specifications or clearly personalised". And the answer is no (unless maybe they specified the shape/size of the ice cubes).


    So there is a cancellation right under CCR (assuming it's a consumer contract).


    It also sounds like you get a lot of large ice orders - can you just not sell the bags that you've got the next time you get an order in?


    You may want to seek a solicitor to look over the terms of your sales and make sure they are lawful and beneficial to you.
    • unholyangel
    • By unholyangel 5th Sep 17, 2:51 PM
    • 11,541 Posts
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    unholyangel
    So, the work is started once we receive the order form as often the order form comes in short notice (within 2 weeks) so we have to create it at the earliest opportunity in amongst the other orders we have. The order form has cancellation terms on it. The form cannot be submitted unless the box agreeing to the terms is ticked.
    We cannot create a sculpture last moment as it takes a while to create. The terms relating to cancellation charges are to protect us for work carried out once the order is placed.

    With regards to a ice cube order this could mean the cost of the ice cubes we have ordered as most ice orders are large, any admin work and often turning away other orders in order to honour the existing client.

    My view is that an ice cube order can be bespoke if it requests delivery at a specific time and place and not one that we pick, that it is a specific amount of ice, and that we have to order it in as well as book a driver in to deliver it.

    Thanks
    Originally posted by jcarver007
    The tick box....I presume you mean a "I have read and agree to the T&Cs/cancellation terms" box. If so, they're pointless. They're a mechanism designed to bind the consumer to wording they may have no awareness of which goes against the requirements of fairness & transparency. What such a mechanism doesn't do (which needs to be done) is adequately draw attention to important terms which may have an adverse effect on the consumer. You can have a highlighted notice stating that they should take the time to read & understand the T&C's before entering the contract , but not a tick box requiring them to say they have read & understood the terms.

    As above, delivery has no bearing on whether an item is bespoke or not. Delivery is an optional service you can offer (an ancillary contract), its not the main goods/services being offered under the contract. As you were advised previously, its goods that are made to the customers specifications or clearly personalised. This would cover instances where a consumer asked you to source something specially that you do not usually offer (ie ordering a sofa and rather than selecting from the fabric options they have, you ask them to source a different one specially for your order, or when ordering windows....you provide exact measurements and the goods are made to those measurements rather than you selecting from different sizes they offer as standard).

    As wealdroam also pointed out, there is an exception for goods likely to deteriorate or expire rapidly but this is typically for things such as fresh flowers. I'm not convinced ice would fall under this category because ice only deteriorates or expires rapidly if it is not kept properly (while fresh flowers might keep longer, but they will still expire no mater how you keep them).
    Money doesn't solve poverty.....it creates it.
    • steampowered
    • By steampowered 5th Sep 17, 4:52 PM
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    steampowered
    The legislation says that a cancellation right does not apply to the supply of goods which are liable to deteriorate or expire rapidly. Surely this applies to ice cubes.

    As such I don't think it matters whether an order is bespoke or not.

    See http://www.legislation.gov.uk/uksi/2013/3134/regulation/28/made.

    2) An online order form states in t&c's that non payment will result in 10% late payment charges per 7 days of non payment. Is this allowed if agreed to by ticking box for agreeing to terms?
    10% per 7 days is clearly punitive. This is a penalty clause and unenforceable. Regardless of whether it is B2B or B2C contract.

    The legal default rate of 8% interest should be perfectly adequate. Furthermore you'd be entitled to additional late payment compensation in a B2B scenario under the Late Payments of Commercial Debts (Interest) Act 1998.
    • takman
    • By takman 5th Sep 17, 6:05 PM
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    takman
    The legislation says that a cancellation right does not apply to the supply of goods which are liable to deteriorate or expire rapidly. Surely this applies to ice cubes.

    As such I don't think it matters whether an order is bespoke or not.

    See http://www.legislation.gov.uk/uksi/2013/3134/regulation/28/made.
    Originally posted by steampowered
    But not if they are stored correctly they will not deteriorate or expire rapidly.

    If you buy certain types of glue it will expire very rapidly if stored in an incorrect container with no lid on. But if i bought some glue online they couldn't say it cannot be cancelled.

    So i would say it only applied to items which expire rapidly even when stored correctly.
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