TOTUM - Tastecard pulled mid contract

DarkConvict

born_again said:

DarkConvict said:

Exodi said:

Sorry, just so I'm clear: you paid £34.99 in total for 3 years Totum Pro membership - which you're 20 months into (so pro-rata'd you've used £20-ish and have around £15-ish left).

They've offered a £10 refund (but presumably you can keep your other benefits for the other 16 months) or an extension and voucher.

You expect to be reimbursed £127.84.

Do I have that right?

What I expect is the 16 months of Tastecard in my order to be maintained. The £127 is the current financial value of the loss, due to their breach, valued based on RRP monthly membership cost. I can't force them to provide membership (even though it's still available to buy), thus a monetary figure is required.

The Totum/Tastecard contractual fallout is outside my purview, all I have is an order for 3x12 month codes. One which was cut short by 4 months and the 3rd code not delivered. Totum as the retailer, in my eyes, are contractually bound to provide it, they can't unilaterally end it.

What do Totum T/C say about situations like this where the other party pulls out?

While I get what you are saying. In effect you are only down the % your paid for the vouchers. Not what the actual product was worth. You are in effect looking for betterment, as you are never going to receive the service.
If you were looking at a chargeback, that would be the basis.

If Tastecard went bust you would be entitled to the same as now, the refund of the % of £34.99 If lucky. Totum could say that you can simply choose another co to redeem the voucher with.
If Totum went bust you would get nothing 🤷‍♀️

There is nothing in the T&C's about it that I could see, as unlike the other discounts which can come and go, this was explicitly, sign up for 3 years and you'll get 3 years Tastecard. Even totum wasn't expecting it, they initially held Tastecard as responsible for breaching the contract in their announcement, but it seems like they had every right to do it, but totum didn't have the same with their customers. As consumers we get B2C protection like CRA2015 \ CCR2013.

I see £127 is more than £34.99, but I wouldn't see it as betterment. I'm not a landlord asking for a tenant to pay for a new item, to replace an old item. I'm simply seeking the remaining 16 months of Tastecard I paid for. 

100% if Tastecard or Totum went bust. It would be different, that comes as force majeure.  But as of right now, totum can give out codes to cover their remaining Tastecard liability but are refusing to do so. 

It's unfair if they can unilateral terminate and partially refund , but you try cancelling and asking for a refund, and they'll refuse. It's been in the news about students unable to get a refund after failing to cancel their 1 month trial.

Whilst I'm not massively fussed about it, it's the principle of it, that they sell it then don't provide it. Seems like a clear breach of contract. 

To put me right they need to supply 16 months of Tastecard, or is equivalent value. A full refund , nevermind a partial one, doesn't offer that, since it's not equivalent.

The fact it's current equivalent value has risen above the initial purchase price is not in my control.

Exodi

DarkConvict said:

Imagine buying 12 months of gamepass ultimate for £40 from Argos, instead of the usually £14.99 a month, then Microsoft just cut you off after 3 months and they say speak to the retailer. The issue is with the retailer that sold it, not Microsoft. It's the same situation here.

So would the logical conclusion be to sue Argos for the full retail value of every game in the game pass library as you no longer have access to them?

A_Geordie

Fortunately the Way Back Machine has a copy of the Totum Pro terms as of 31 March 2023: TOTUM PRO Terms & Conditions | TOTUM

I can't find any other terms about the TasteCard other than the promotional text below. Let's assume for now that you are right and that the contract for TasteCard membership was between you and Totum rather than them being an agent, then I would be inclined to agree you have seem to have a case to argue. 

At this stage you would only be entitled to the number of months lost of the 12 month membership until Totum are required to give you a new code for the third year. So at this stage it may be wise to wait and see if they give you a code on the due date. If they don't and refuse to give you a code or cash equivalent, then you can claim breach of contract for that also - if their intention is to refuse to perform their obligations and they give some indication of that in writing, you may be able to argue that there has been a repudiatory breach which includes the right to claim consequential losses and loss of bargain, subject to the T&Cs you signed up to (suggest you read up about repudiatory breach as there are very specific requirements to claim damages but you can also claim a simple breach of contract as a standalone). You don't necessarily need to terminate the contract, you can still continue but claim compensation insofar as your loss for the breach. 

Whether you think it is worth pursuing only you can decide, but this might be a situation where you write detailed particulars of claim rather than relying on the very limited character count on Money Claims Online, as you will want to set out the breach(s) and your losses clearly.

DarkConvict

Exodi said:

DarkConvict said:

Imagine buying 12 months of gamepass ultimate for £40 from Argos, instead of the usually £14.99 a month, then Microsoft just cut you off after 3 months and they say speak to the retailer. The issue is with the retailer that sold it, not Microsoft. It's the same situation here.

So would the logical conclusion be to sue Argos for the full retail value of every game in the game pass library as you no longer have access to them?

 That's not a logical conclusion, you never had a perpetual license to play the games, you would sue for loss of access to gamepass, not the value of the games themselves, which come and go.

DarkConvict

Thanks @A_Geordie, this was my understanding too. I'm curious, would I put in the claim, the current RRP of £79, or the RRP they claim back in 2023 of £39. I assume it would be the current value, since you can't be put back in the original position.

The question now, is it worth the effort given it's purely over the principle of it. I don't have any damages, thankfully, as I wasn't booked in to use the Tastecard when it expired without warning. I've seen not used any venue that required it for discounts like Zizzi.

Legal action is never a guaranteed win, and the court fee and claim amount is small but it still takes time to fill in the MCOL form.

A_Geordie

It would be based on losses suffered at the time of the breach, so the 6 months lost at the then-current cost of membership at the time plus a further 12 months to renew.

When I refer to damages, it is the legal term used for compensation and is not limited to places you may have booked in advance of your membership being rescinded.

Your right, nobody can guarantee a win at a hearing, but unless there's something that Totum have up their sleeve, this is just a straight forward breach of contract claim. They agreed to give you something for 3 years and you haven't received it, so pay up. Their relationship with Tastecard is separate to your contract with Totum and if they weren't in a position to offer 3 years to its own customer base then it shouldn't have been promoted. The burden of proof will be on them to prove otherwise.

fiendishlyclever

It's standard operating practice for Totum. They used to offer 10% off in the Coop. Even when Coop had emailed everyone who had used a Totum card in store to tell them the offer was ending, Totum were still advertising the discount as a member benefit. The first I heard of the Tastecard agreement ending was an email from Tastecard telling me it had stopped. I was half way through my Totum membership. I left both companies a one star review and moved on, I couldn't be bothered chasing it (I didn't use the Tastecard often)

DarkConvict

fiendishlyclever said:

It's standard operating practice for Totum. They used to offer 10% off in the Coop. Even when Coop had emailed everyone who had used a Totum card in store to tell them the offer was ending, Totum were still advertising the discount as a member benefit. The first I heard of the Tastecard agreement ending was an email from Tastecard telling me it had stopped. I was half way through my Totum membership. I left both companies a one star review and moved on, I couldn't be bothered chasing it (I didn't use the Tastecard often)

I had the same with co-op, but that was an offer they could remove as it's part of the general discounts on offer. Tastecard was an explicit line item in the order.

DullGreyGuy

fiendishlyclever said:

It's standard operating practice for Totum. They used to offer 10% off in the Coop. Even when Coop had emailed everyone who had used a Totum card in store to tell them the offer was ending, Totum were still advertising the discount as a member benefit. The first I heard of the Tastecard agreement ending was an email from Tastecard telling me it had stopped. I was half way through my Totum membership. I left both companies a one star review and moved on, I couldn't be bothered chasing it (I didn't use the Tastecard often)

The linked to T&Cs above state that offers will vary over time and that they provide no warranty that their website is 100% up to date. For an existing member that is probably fine; the ASA may have issues with it in relation to advertising to new members with an out of date website but thats not relevant to the OP's case as they did get the promos they were promised originally but per the term below some were withdrawn during the period.

Any discount or promotion offered by a Brand is not guaranteed and may be varied by a Brand without notice at any time. 

the_lunatic_is_in_my_head

DullGreyGuy said:

Any discount or promotion offered by a Brand is not guaranteed and may be varied by a Brand without notice at any time. 

This is likely to be an unfair term based on the CMA guidance of the CRA.