mobilephonesdirect.co.uk - Illegal T&Cs? (Returns)

Kashinoda

Got a phone from these guys on Wednesday on Vodafone, having a terrible time with the signal... is nothing to do with the phone as it works with other networks fine. I'm still under my 7 days so I'm just going to return it.

Had a look at their returns policy here:
http://www.mobilephonesdirect.co.uk/customerservices/returns.aspx

Found the fact they said 'goods being returned to us as new, unused and complete with original manufacturer's packaging' a bit worrying.

Had a look at their terms and conditions:

7. Cancellation Rights, Returns and Refunds
7.1 Under the Consumer Protection (Distance Selling) Regulations 2000 you have a right to cancel your purchase. However, to exercise this right you must notify us in writing, (email or letter) within 14 working days from the day after you receive your goods.

7.2 As stated above notification of cancellation must be in writing, a telephone call is not a valid cancellation.

7.3 No right of cancellation, refund or return exists under the Consumer Protection (Distance Selling) Regulations 2000 once you have used your product, unless the product is defective and you are returning it for this reason.

7.4 Goods that are sealed or shrink-wrapped and this is removed can only be returned if the goods are defective as diagnosed by the manufacturer or a manufacturers appointed agent or repair centre.

7.5 No right of cancellation exists for Goods where you have agreed to a connection or service contract with a mobile phone network as specified in that networks separate terms and conditions.

7.6 Please observe the following procedure for all returns to us:

7.6.1 Email webshop@mobilephonesdirect.co.uk or telephone 0845 470 4000 to obtain a returns Authorisations number (RAN).

7.3 is complete garbage right? (and 7.4?) :mad:

Surely the consumer has a right to inspect the product, and therefor open it?

Going to phone them up Monday, I just need to know where I stand.

Thanks for any feedback/

robt_2

It depends on their interpretation of the DSR.

Software is excluded, and as soon as you turn the phone on you are using its software.

DSR is for you to inspect goods before you use them, NOT a trial period.

Kashinoda

robt wrote: »

It depends on their interpretation of the DSR.

Software is excluded, and as soon as you turn the phone on you are using its software.

DSR is for you to inspect goods before you use them, NOT a trial period.

Well I turned the phone on, experienced terrible signal problems when in use... I switched it on a few times since just to check if the problem still exists and it does.

If the software argument stands, surely the same can be said about any electrical appliance? Basic operation of devices need a form of operating system/software to use at some level.

Thanks for your reply.

Guys_Dad

Mild rebuke - always check t&c before buying.

Having said that, they are not unique in this particular type of clause. It doesn't make it helpful, but I think you will find they are within their rights and it is not illegal.

If you look at the DSR rules and Regs on line, you will see that once you deem to have started the service, then you are locked in. The standard problems with service and mobile phone contracts.

DarkConvict

Its standard clause on mobiles, which is why most have security tags on the boxes/phones.

Using the service is acceptance to the service agreement, service agreement and phone are separate. You can sort of avoid it by not putting the sim card in, however you are still using software but this can generally be reset with a hard/soft reset or factory settings. Return of a phone you have briefly used means it is not sent out as new but as replacement handset in the future. If you want to try out phones I recommend you do it in shops, I spent a week trying out different ones for my GF, then ordered online.

Lynsey

Contact Vodafone, your contract for the line rental is with them. It would appear Vodafone can't supply an acceptable service.

Lynsey

DrScotsman

I THINK that 7.3 and 7.4 are garbage, but 7.5 is not (much like what DarkConvict is saying), meaning you wouldn't be able to return it anyway.

Vomityspice

The terms are misleading.

Have a look at http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf

Read Page 21. This should assist if MPD talk non-sense to you.

Under DSR you have 7 working days in which to reject the contract. All the guff about software etc is simply hogwash. The Regulations (SI 689/2005) are perfectly clear, the consumer (thats you) have 7 days to inspect the service / product. There is no way to inspect the service without using the phone! Unless they can suggest there is?

If you are unhappy, you can give notice to terminate the contract (although not by telephone unless the companies t&c's allow it).

So, if the CS person is unhelpful (and there is no reason that they will). Ensure that you have written and emailed them (Don't forget Signed for to prove it if necessary) to inform then you are exercising your rights under DSR. As long as you are within your 7 day period, any legal action you take to recover any monies lost will be quickly recovered.

Kashinoda

Thanks for your replies,

Regarding clause 7.5, this is also wrong... even if you have used the service ('agreed' the contract) you STILL have the right to cancel within 7 days under the DSR... Vodafone are entitled to charge me for the days I've used, thats about it.

Vomityspice wrote: »

The terms are misleading.

Have a look at http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf

Read Page 21. This should assist if MPD talk non-sense to you.

Under DSR you have 7 working days in which to reject the contract. All the guff about software etc is simply hogwash. The Regulations (SI 689/2005) are perfectly clear, the consumer (thats you) have 7 days to inspect the service / product. There is no way to inspect the service without using the phone! Unless they can suggest there is?

If you are unhappy, you can give notice to terminate the contract (although not by telephone unless the companies t&c's allow it).

So, if the CS person is unhelpful (and there is no reason that they will). Ensure that you have written and emailed them (Don't forget Signed for to prove it if necessary) to inform then you are exercising your rights under DSR. As long as you are within your 7 day period, any legal action you take to recover any monies lost will be quickly recovered.

Thanks for the info buddy, what I'll do is give them a call any way just to let them know what I'm entitled to and that I'll email them later in the day to give notice of cancellation. If they decide to be dicks about it, which I think they will... I'll phone Vodafone and cancel with them (despite the fact they said I can't)...

Guys_Dad

Vomityspice wrote: »

The terms are misleading.

Have a look at http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf

Read Page 21. This should assist if MPD talk non-sense to you.

Under DSR you have 7 working days in which to reject the contract. All the guff about software etc is simply hogwash. The Regulations (SI 689/2005) are perfectly clear, the consumer (thats you) have 7 days to inspect the service / product. There is no way to inspect the service without using the phone! Unless they can suggest there is?

If you are unhappy, you can give notice to terminate the contract (although not by telephone unless the companies t&c's allow it).

So, if the CS person is unhelpful (and there is no reason that they will). Ensure that you have written and emailed them (Don't forget Signed for to prove it if necessary) to inform then you are exercising your rights under DSR. As long as you are within your 7 day period, any legal action you take to recover any monies lost will be quickly recovered.

Much as I wish you were right, you are not. You are wrong. Now I agree that it's a nonsense and how can you test a phone under DSR without switching it on and how can you test a service either?

However, here are the facts.

Exceptions to the right to cancel (DSR)

Unless the parties have agreed otherwise, the consumer will not have the right to cancel in respect of certain distance contracts. This applies to the following contracts:

for the provision of services, if the performance of the contract has begun with the consumer's consent before the end of the cancellation period and the supplier has provided the written confirmation and additional information (including information that the cancellation rights will end as soon as performance of the contract begins);

or from the government web site http://www.direct.gov.uk/en/Governmentcitizensandrights/Consumerrights/DG_183048

The cooling off period and your right to cancel
The cooling off period begins as soon as an order has been made. For goods (such as books or electrical items) it ends seven working days after the day you get the items.
For services (such as mobile phone contracts), it ends seven working days after the day the order was made. If you agree to the service beginning within the seven days, your right to cancel ends when the service starts.

Read the t&c when you order. By putting the sim in the phone and making a call, you are caught by the fact that you have started the service.

So, the resellers are within the law as it currently stands, unless there is a separate contract for the phone and service. Read the t&c carefully and, if there is, then you can cancel the non-service element and try demanding a new phone. We could do with a test case!

Vomityspice

Exceptions to the right to cancel (DSR)

Unless the parties have agreed otherwise, the consumer will not have the right to cancel in respect of certain distance contracts. This applies to the following contracts:

for the provision of services, if the performance of the contract has begun with the consumer's consent before the end of the cancellation period and the supplier has provided the written confirmation and additional information (including information that the cancellation rights will end as soon as performance of the contract begins);

or from the government web site http://www.direct.gov.uk/en/Governmentcitizensandrights/Consumerrights/DG_183048

The cooling off period and your right to cancel
The cooling off period begins as soon as an order has been made. For goods (such as books or electrical items) it ends seven working days after the day you get the items.
For services (such as mobile phone contracts), it ends seven working days after the day the order was made. If you agree to the service beginning within the seven days, your right to cancel ends when the service starts.

Read the t&c when you order. By putting the sim in the phone and making a call, you are caught by the fact that you have started the service.

So, the resellers are within the law as it currently stands, unless there is a separate contract for the phone and service. Read the t&c carefully and, if there is, then you can cancel the non-service element and try demanding a new phone. We could do with a test case!

We will agree to disagree then. My reading of your link is:

For services (such as mobile phone contracts), it ends seven working days after the day the order was made. If you agree to the service beginning within the seven days, your right to cancel ends when the service starts.

Note with DSR the 7 working day period starts on receipt (see the regulations!) so the inference is incorrect. In addition your agreement to the service is conditional. Putting a sim in the phone isn't an agreement (irrespective of the T&c's) as you the consumer have no way of testing the service unless you do so. For example if T&C could vary legal obligations then all providers would simple put 'you have no rights' and then direct people back to their T&C's. The reason they don't do this is because it is legal bunkum. You can't remove legal rights in T&C's (Actually I know you can, but for the purpose of this point, this is not relevant).

Further as you have two contract (one for the phone, one for the network service), ALL network providers will accept under DSR you can cancel your contract with them directly with 7 working days (some offer 14+ days). So where would that leave MPD? You cancel directly with Vodafone (Op's network?), they agree and you are left with a free phone? I suspect not.... What could they sue for? The Phone was free!

In any legal dispute, the relative position of the parties would be considered if the contract was to be disputed. As a consumer, you are in the weaker position (assuming this is not a B2B contract). Terms that attempt to avoid EU regulation (implemented in UK law via a statutory instrument) will simply fail.

Anyway enough of the theoretical beliefs, the proof of the pudding is in the outcome. I'm happy to suggest that MPD will simply confirm they will accept the OP's phone back with out so much as a whimper. Let us hope the OP returns with an update and lets see what actually happens.