Do i own the phone?

parallax_20

Yes the two agreements are separately described but the clauses under each agreement ties them together at least for the minimum period.

Hence the equipment agreement clause 2.2 states that they are providing you with a phone on the basis that you have agreed to a service agreement for the minimum term.

Clause 2.4 states that you are the owner of the phone once received, so it is your responsibility to maintain its working order at your own cost during this minimum period. This is why if the phone develops a fault and is not a manufacturer defect, O2 are not be obligated to replace it but can send it off for repair on your behalf which you will be billed for directly, unless additional insurance is taken out to cover lost/repair costs.

Clause 2.2 also refers to paragraph 11 of the service agreement which reads...

11.2 If you cancel this Service Agreement, any Equipment Agreement that we entered into with you at the same time for the supply of a Handset which was agreed on the basis of you entering into this Agreement, will also be cancelled. We will bear the cost of returning the Handset with all original parts and the original packaging as long as you follow our returns procedure (call Customer Services for more details). If you do not return the Handset, we may charge you the costs that we incur in collecting it, which may be substantial. You must make the Handset available for collection on our request. If you paid any money for the Handset, we will refund that money to you when we receive the Handset back from you (other than our costs if we have to recover the handset from you).

Companies always cover their backs and its rare they will have an agreement which is to their disadvantage.

zenmaster

parallax_20 wrote: »

Clause 2.2 also refers to paragraph 11 of the service agreement

Shows how easily people can misread T & Cs. I read your previous post and completely missed the reference to para 11 :eek:.

purplehibiscus

parallax_20 wrote: »

11.2 If you cancel this Service Agreement, any Equipment Agreement that we entered into with you at the same time for the supply of a Handset which was agreed on the basis of you entering into this Agreement, will also be cancelled. We will bear the cost of returning the Handset with all original parts and the original packaging as long as you follow our returns procedure (call Customer Services for more details). If you do not return the Handset, we may charge you the costs that we incur in collecting it, which may be substantial. You must make the Handset available for collection on our request. If you paid any money for the Handset, we will refund that money to you when we receive the Handset back from you (other than our costs if we have to recover the handset from you).

You should at least get your £96 back again.

parallax_20

purplehibiscus wrote: »

You should at least get your £96 back again.

I suspect nsabournemouth already knows he can. He was hoping there was a way he could keep the £500 handset as a result of O2 cancelling the contract, which unfortunately he can't as the T&C's clearly states.

user56565

Have to agree with gjchester - two separate contracts, only linked by how they commenced. This is based on o2's latest terms and conditions (see website) which are assumed not to be in breach of the UTCCR 99.

Clause 11 refers to the cancellation of contracts (i.e. within 14 days, where the consumer changes their mind etc). I agree that where the airtime agreement is cancelled under this clause, the handset agreement will be cancelled and you have to return the handset.

However, this doesn't apply to the OP - they are outside the 14 day period and are instead terminating their airtime agreement early under clause 8. There is a difference between cancelling the contract and terminating it.

What this means? The phone belongs to the OP and it is theirs to do what they like (they have owned the handset since delivery - see clause 2 of the equipment agreement). However, the OP will need to pay an early termination fee based on the line rental for the remaining duration of the contract (e.g. £29 x 17 = £493. You could argue this fee should be lower based on other available tariffs). This is unless:

• the OP agrees to send the handset back to o2 as full payment for the early termination fee; or
• the OP successfully argues that the termination fee should not apply (under clause 8.4a) because o2 have not provided an adequate service.

In order to pursue the latter, the OP needs to go into a lot more detail regarding o2's services and how they have failed to meet the standards set out in clause 2 of the airtime agreement. They would also need to send the written notice as stated in clause 8.4.

parallax_20

I still stand by what I said with regards to clause 2.2 of equipment agreement. The phone has been supplied to you because you have "agreed" to a service contract for the minimum period. Therefore if you cancel your service agreement during the minimum period then you are in breach of your equipment contract and revoke your right to ownership of the equipment. If you cancel under paragraph 11, then the equipment contract is automatically cancelled and you are no longer tied to the mimimum term...same thing whichever way you look at it.

The phone remains theirs and has a claim to it until the minimum period has passed or the handset is fully paid for. Whichever comes first.

I'm no legal expert, but that's how I would logically interpret their wording. The best way to view it is, if you had to fight O2 at the small claims court over this issue and reading those clauses again, would you be confident the judge would side with you?

nsabournemouth

user56565 wrote: »

Have to agree with gjchester - two separate contracts, only linked by how they commenced. This is based on o2's latest terms and conditions (see website) which are assumed not to be in breach of the UTCCR 99.

Clause 11 refers to the cancellation of contracts (i.e. within 14 days, where the consumer changes their mind etc). I agree that where the airtime agreement is cancelled under this clause, the handset agreement will be cancelled and you have to return the handset.

However, this doesn't apply to the OP - they are outside the 14 day period and are instead terminating their airtime agreement early under clause 8. There is a difference between cancelling the contract and terminating it.

What this means? The phone belongs to the OP and it is theirs to do what they like (they have owned the handset since delivery - see clause 2 of the equipment agreement). However, the OP will need to pay an early termination fee based on the line rental for the remaining duration of the contract (e.g. £29 x 17 = £493. You could argue this fee should be lower based on other available tariffs). This is unless:

• the OP agrees to send the handset back to o2 as full payment for the early termination fee; or
• the OP successfully argues that the termination fee should not apply (under clause 8.4a) because o2 have not provided an adequate service.

In order to pursue the latter, the OP needs to go into a lot more detail regarding o2's services and how they have failed to meet the standards set out in clause 2 of the airtime agreement. They would also need to send the written notice as stated in clause 8.4.

O2 have agreed to end the contract with NO term based on the service i was NOT getting. Trading standards advised that this is a breach of contract. They also breached it again by saying they would revoke the contract but then on calling up to get it done they said they would not and then again they said they would. When i called up to get it done the second time i was told only if the handset was returned. The issues with service had been going on for 4 weeks and i assumed that as i was told by o2 that they would terminate the contract with no fee i was not required to give them notice.

(d) Your acceptance of the Equipment shall take place when you take delivery or possession of the Equipment. Risk in the Equipment passes to you upon
delivery at which time title to the Equipment will also pass to you, subject to paragraph 3.5(e) below.

(e) Any SIM Card delivered to you shall at all times remain our property.

It also states above that the sim card is the property of o2 at all times but not the handset

user56565

Parallax_20 - Again, sorry but have to disagree with your interpretation.

The clause you've quoted says that the handset is provided because the consumer enters into the service agreement for the minimum period. The OP has done this and so the handset is theirs.

As per my post above, if the OP cancelled the contract (i.e. clause 11 of the service agreement), then the handset agreement would be cancelled too and the handset would need to be returned. However, the OP is terminating it early and is therefore liable to the early termination fee (subject to comments in my earlier post).

This is fair and is what would be determined in court. It is not biased to either party - in effect, the end result is that the OP has paid all the line rental for the minimum period (7 months plus fee based on 17 months) and keeps the handset. This is what would happen if they ran the contract through to the end.

Based on your interpretation of the terms, the OP would need to pay the ~£500 fee AND return the handset. This is incorrect. I have to interpret legislation as part of my job and have studied (to a basic level) contract and company law. However, I am not a legal expert either and so, if my arguments are flawed, please let me know.

nsabournemouth - I assume the "service you're not getting" means you've had no reception?

If you want to pursue the 8.4a 'no termination fee', you would need to show that o2 have materially broken the Services agreement. A lack of reception is likely to be such a breach, and trading standards' comments are helpful in this regard.

However, you should consider clause 2.3: "Service is not fault free and it may be impaired by geographic, atmospheric or other conditions or circumstances beyond our control and you will be entitled to the quality of service generally provided by a competent mobile telecommunications service provider exercising reasonable skill and care."

We obviously don't have all the information and it is unclear how much detail trading standards have looked into this. If you think that o2 have materially breached their obligation to provide you with a service, you should send the written notice stipulated in clause 8.4a (i.e. notify them that you want to disconnect under this clause, state the reasons why i.e. how o2 have breached the contract, and send it by recorded delivery). You may also want to request a PAC code so that you can take your number with you.

If you are successful, then it means that you pay no early termination fee and you get to keep the phone (which, as I've said earlier, does not belong to o2). You would need to pay line rental up until disconnection (although I haven't looked into this point and it may be when the notice period of 7/30days expires from the date your letter is received). You may also be able to claim some portion of the line rental you've already paid under the agreement, but this would need to be through the small claims court and would require a lot of work.

Having to pay no early termination fee is a bit of a windfall and you are likely to get a lot of resistance from o2.

nsabournemouth

user56565 wrote: »

Parallax_20 - Again, sorry but have to disagree with your interpretation.

The clause you've quoted says that the handset is provided because the consumer enters into the service agreement for the minimum period. The OP has done this and so the handset is theirs.

As per my post above, if the OP cancelled the contract (i.e. clause 11 of the service agreement), then the handset agreement would be cancelled too and the handset would need to be returned. However, the OP is terminating it early and is therefore liable to the early termination fee (subject to comments in my earlier post).

This is fair and is what would be determined in court. It is not biased to either party - in effect, the end result is that the OP has paid all the line rental for the minimum period (7 months plus fee based on 17 months) and keeps the handset. This is what would happen if they ran the contract through to the end.

Based on your interpretation of the terms, the OP would need to pay the ~£500 fee AND return the handset. This is incorrect. I have to interpret legislation as part of my job and have studied (to a basic level) contract and company law. However, I am not a legal expert either and so, if my arguments are flawed, please let me know.

nsabournemouth - I assume the "service you're not getting" means you've had no reception?

If you want to pursue the 8.4a 'no termination fee', you would need to show that o2 have materially broken the Services agreement. A lack of reception is likely to be such a breach, and trading standards' comments are helpful in this regard.

However, you should consider clause 2.3: "Service is not fault free and it may be impaired by geographic, atmospheric or other conditions or circumstances beyond our control and you will be entitled to the quality of service generally provided by a competent mobile telecommunications service provider exercising reasonable skill and care."

We obviously don't have all the information and it is unclear how much detail trading standards have looked into this. If you think that o2 have materially breached their obligation to provide you with a service, you should send the written notice stipulated in clause 8.4a (i.e. notify them that you want to disconnect under this clause, state the reasons why i.e. how o2 have breached the contract, and send it by recorded delivery). You may also want to request a PAC code so that you can take your number with you.

If you are successful, then it means that you pay no early termination fee and you get to keep the phone (which, as I've said earlier, does not belong to o2). You would need to pay line rental up until disconnection (although I haven't looked into this point and it may be when the notice period of 7/30days expires from the date your letter is received). You may also be able to claim some portion of the line rental you've already paid under the agreement, but this would need to be through the small claims court and would require a lot of work.

Having to pay no early termination fee is a bit of a windfall and you are likely to get a lot of resistance from o2.

I would not say a windfall. If they provide a service and then 6 months later that service is not being provided that is down to them and that is a breach as far as Trading Standards are concerned. (Supply of services and goods act) They have also breached it by not ending it when they said they would, again as advised by Trading Standards.(They have said they will but on the basis the phone is returned)

OneADay

Not reall all this thread but sounds like one of them return a phone to cancel - think o2 are entitled to expect the phone back. Trading standards can say anything initially till they start to look into the exact details of the transaction.