Difficult Distance Selling

wealdroam

jcarver007 wrote: »

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?

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'.

jcarver007 wrote: »

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

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.

angryparcel

waamo wrote: »

How are ice cubes bespoke?

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

What are the cancellation terms you have with the company you ordered from?

jcarver007

wealdroam wrote: »

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.

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

jcarver007 wrote: »

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

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

jcarver007 wrote: »

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.

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

jcarver007 wrote: »

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

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).

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

steampowered wrote: »

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.

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.

jcarver007

unholyangel wrote: »

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).

Thats a good point about higlighting parts of the t&c's. However the box to agree to the t&c's is needed because otherwise there is nothing to say that a client has agreed to the order. My terms and conditions are not long winded like other sites but consits of 15 points (short paragraphs or 1 line sentences) and not difficult.

I also do ice sculptures and often these are short notice orders. A lot of work goes into these in hand carving them so a order form and agreement to cancellation charges is needed. A sculpture is of course made to clients specs so no issues there.

I had seen on a website that looked into distance selling and if a service is bespoke that if a specific time and date was chosen then that order is bespoke. I'll try and find it again but I take your point on that.
Thankyou