sendmybag.com cancellation - is this legal? Cooling off? DSRs?

ayamjay

Hello,
I wonder if anyone could please help me with the following situation:

- I placed an order on sendmybag.com to send my bags from A to B.
- 4 days later I cancelled the order (by phone as per their website T&Cs and with a follow up email).
- Their T&Cs state the following:

5.2 At any time up until your order is accepted, confirmed and booked you may cancel your order by telephone only. We will confirm your order has not been accepted and your order will be cancelled and credited to your sendmybag.com account less an administration fee of £15 or 15% whichever is greater. </SPAN>
5.3 You may modify basic details of your order only until the time it has been accepted, confirmed and booked providing such modifications would not the total order value. Any modification that reduces the order value will be treated as a cancellation in accordance with clause 5.2.
5.4 Once an order has been accepted, booked and confirmed you cannot modify your order and any such modifications will result in the order being cancelled and a new order will be required. The cancellation fees referred to in clause 5.2 shall apply to any such order modifications.

- my order was 'accepted, booked and confirmed', so they are saying that they can only credit my sendmybag.com account and I can use the money on future orders.
- I don't know if I'm going to want to send any bags in the future. The total amount is quite significant. I basically want them to pay the money back into my own bank account.
- I emailed them and asked if they could pay the money into my bank account, even offered they take the 15% off. They said that they can't do it.
- Can they keep my money like that?
- I paid with a VISA debit card.

As far as I can tell this falls under the DSRs and I should have a 7 day cooling off period and they should refund me (i.e. my bank account and not their own account) the full amount I paid. Could someone please confirm? I was never informed that by them starting the order I lose my right to cancellation (as per the DSRs).

I appreciate any input. Thank you.

agrinnall

I suspect their argument would be that their service is an exception to DSRs as it falls under "accommodation/transport/leisure services purchased for a particular timeframe". It might be worth asking Trading Standards for a view, but ultimately it may only be possible for it to be decided by taking them to court.

wealdroam

As well as Agrinnall's point, it is possible that they started to provide the service at the point where your order was 'accepted, booked and confirmed'.

On page 19 ot the OFT's guide to the DSRs it says...

How do I make sure consumers do not cancel a service contract after I have started work?
3.25 Once you have started work or begun to provide a service the consumer is contractually bound to honour his part of the contract so long as you:

• had their agreement to start the service
• provided them with the required written information in advance of your starting, and
• told them that their cancellation rights will end as soon as you do start carrying out the contract.

ayamjay

Hello,
Thank you for the input so far.
I don't think they could fall under 'accommodation/transport/leisure services purchased for a particular timeframe'. They use DHL and other courier services, and I can't see how this would qualify under that. I think that would be things like hotels, bus services, etc. No?

With regards to the second point, they never told me that my 'cancellation rights will end as soon as you do start carrying out the contract'.

So where do I stand?

Can they actually legally hold on to my money? I keep wondering as if this was the case, wouldn't every shop and service provider do the same when people return goods?

somethingcorporate

ayamjay wrote: »

Hello,
Thank you for the input so far.
I don't think they could fall under 'accommodation/transport/leisure services purchased for a particular timeframe'. They use DHL and other courier services, and I can't see how this would qualify under that. I think that would be things like hotels, bus services, etc. No?

With regards to the second point, they never told me that my 'cancellation rights will end as soon as you do start carrying out the contract'.

So where do I stand?

Can they actually legally hold on to my money? I keep wondering as if this was the case, wouldn't every shop and service provider do the same when people return goods?

It says exactly that:

5.4 Once an order has been accepted, booked and confirmed you cannot modify your order and any such modifications will result in the order being cancelled and a new order will be required. The cancellation fees referred to in clause 5.2 shall apply to any such order modifications.

I think they probably expect them to be covered under DSR as the above posts and be able to hold on to your money. I'd suggest if you do want to pursue this you'd need court action (with no guarantee of winning).

Fire_Fox

ayamjay wrote: »

Hello,
Thank you for the input so far.
I don't think they could fall under 'accommodation/transport/leisure services purchased for a particular timeframe'. They use DHL and other courier services, and I can't see how this would qualify under that. I think that would be things like hotels, bus services, etc. No?

With regards to the second point, they never told me that my 'cancellation rights will end as soon as you do start carrying out the contract'.

So where do I stand?

Can they actually legally hold on to my money? I keep wondering as if this was the case, wouldn't every shop and service provider do the same when people return goods?

They may have placed a booking with a courier on your behalf, they lose by cancelling. They did tell you the cancellation policy, in the terms and conditions.

ayamjay

Fire_Fox wrote: »

They may have placed a booking with a courier on your behalf, they lose by cancelling. They did tell you the cancellation policy, in the terms and conditions.

Yes, they did, but I called the couriers and they said that they don't charge the third party (i.e. sendmybag) for changes or cancellations.

Thank you for all the input so far. I'll be calling Trading Standards this week, so will let you know the outcome.

By the way, the money has been credited now to my sendmybag account and I can only see it when I log on online. Shouldn't I get a credit note or something? What happens when the company goes bust? I assume I don't get the money back?

agrinnall

It seems a bit harsh not to return your money, but you accepted the cancellation T&Cs when you booked with them and I suspect it's not illegal for them to impose that condition as long as it's not hidden. If you can't get the money back then if the company did go bust you'd be just another creditor and probably at the back of the queue.