B2B contract - now I'm being taken to court.

[jo1lygrngiant]

Hi everyone, I am wondering if anyone can please assist me with a major problem.

 

Basically 2 years ago, I signed up with a company to appear in 10k brochures, plus complimentary e-brochures, loyalty appt cards, seasonal e-vites.

 

It appears this is all one huge [problem]. There are numerous postings about this company all over the internet, and their selling practises.

 

I fell foul of their selling techniques last year. Paid over £660 over 3 months for 2 years advertising in Aug 10.

 

Usual story, a local playgroup, (who does exist and is doing extremely well), letter of authorisation off the owner, I was supposed to be in 10,000 leaflets, and vouchers to all parents who drop off their children.

 

Suffice to say not a single call off anyone (and I track my calls).

 

Receive a phone call off this company saying that a invoice is due from the 15th Oct 10.

 

Get in touch with them to find out what this invoice is for, and its for 2012. I contact them and say that as it was a 2 yr agreement, 2012 has been paid.

 

Oh no, I should of read the t&c's, clause 14 states the following..

 

"If the advertiser does not wish for their advertisement to appear after the expiry of the initial 2 year advertising period, the advertiser must service notice in writing by recorded delivery post to that effect to the company no later than 12 months after the date on this agreement. Failing which this agreement will become a 12 month rolling contract at the same yearly value as overleaf, plus art work charge. It may only be terminated by either party upon 12 months written notice which must be given to the party in accordance with clause 19 and which, must be expressed to expire on either the date 12 months after the last day of the initial advertising period or any anniversary of date 12 months after the last day of the initial advertising period."

 

Clause 19.

"No notice to the company shall be binding, valid or effective unless sent by recorded delivery post to the company's address as set out overleaf."

 

I reply with a email of the following

 

This was for both year one and year two of this agreement. As stated in my phone call to you earlier this morning, I have not received any brochure from your company, not a single call from any client (and I track each and every call which comes into my company). After further researching, I find that I am not the only company who has fallen for this.

Therefore, I will NOT be paying this invoice, nor any future invoice to your company.

Please take this as written confirmation, that I am CANCELLING this contract with your company. A email is just as good as good as Royal Mail, for cancelling any contracts. A copy of this email will be held on our servers, and confirmation of it being read will also be kept.

I have had to write off over £600 to your company, which is money I can not afford to lose.

I will not be replying to any further emails, nor telephone calls from your company. As far as I am concerned this is the end of the matter.

 

Receive a reply off them this morning stating

 

Further to your email below the payment made are for the 2010-11 and 2011-12 the first 2 years of your Automatically renewable advertising Agreement, the payment now invoiced is for 2012-12 the 3rd years advertising.

 

Your Agreement is an automatically renewable Agreement as stipulated, as no notice of termination has been received in line with clause 14 the Agreement has been automatically renewed and the payment request in accordance with the payment structure set out on the front of the Agreement.

 

Whilst we would love to be able offer a guarantee that advertising will bring in more business we physically cannot do this, we like all advertising mediums can only produce the product in anticipation that your business will be of interest to the public in the targeted area.(I run a computer repair business in my local area, I have a good client base, therefore my business is of interest to the public in my area).

 

The email received is not accepted as your termination of the 4th year, to enable us to do do this I need this in writing by recorded delivery post as stipulated on your Agreements clause 14 which you have initialled as having read and agreed to.

 

Invoice number xxx for payment of the automatically renewable Agreements 3rd year remains payable, as previously advised. Enclosed is a copy of the signed Agreement and its terms and conditions with the relevant areas highlighted.

 

In an effort to resolve this matter amicably I will offer to either accept a full and final settlement of £280.80 (a 25% reduction) or split the payments over the next 6 months at the rate of £62.40 per month. Should either payment of the settlement amount offered or confirmation of acceptance of the payment plan be received within the next 7 days I will assume that you do not wish to resolve this matter amicably. Should this be the case we will revert back to the full balance as invoiced and proceed for the monies due inclusive if any charges which may be added in accordance with the terms of the Agreement .

 

I trust this letter fully respond to your email received 25 October 2011 and demonstrates our willingness to resolve this matter amicably, should you wish to discuss the content of this letter please do not hesitate to contact me on xxxxxx.

 

On the front of my contract the rep had erased the artwork charge, basically making it foc.

 

Comes to the last payment of the dd, and they took an additional £90+vat off me. Upon querying this, it was the artwork charge.

 

I threatened them with court action if this was not refunded back to my account within 14 days. They put it back on the 14th day.

 

As far as I am aware, if you cancel by email, it is the same as cancelling by recorded del. I cancelled both over the phone, when speaking to this legal department, and also by email. I have a email receipt of it being opened, and also of it being read. Therefore the contract is cancelled, irrespective of what they claim.

 

I have just checked out cancellation rights, and can confirm the following.

 

What must my consumers do if they want to cancel?

3.26 They must tell you in writing, or in another durable medium, if they

want to cancel. This includes letter, fax or email. A phone call is not

enough unless you say in your terms and conditions that you will

accept cancellations by phone.

 

 

As far as I am concerned, the £600 has to be wrote off, no way of getting that back off them.

 

Basically the way I am reading clause 14 (please tell me if I am wrong here), is that if you want to cancel the contract, you must do so, within 365 days of the date of the initial contract. Failing to do this, means you will be rolled over for another 12 month contract. However they require 12 months written notice. Does this mean, that even if you cancel say after 364 days, they will continue to try and enforce the contract for another year on top of the initial 2 year one?

 

Also as a favour to me (how nice of them), they offered to reduce the invoice by 25%, if I paid it now. Now do you know of any other company which would offer such gracious terms?. That again speaks to me of a [problem].

 

I have not replied to this last email, nor will I.

 

I contacted the child care company whom I am supposed to be listed in. They confirmed that I am in the brochure. They only received the brochures in Apr 11!.

 

16th Dec 2011, I opened a letter from this company which enclosed was a copy summons,

 

I received umpteen emails from their 'legal' department, basically stating that I had 14 days in which to pay the latest invoice amount, else they would instigate legal proceedings against me. Copying in the terms and conditions, and where I am supposed to of ticked the box agreeing to clause 14..

 

However, I am left handed, my ticks are a left handed tick (as can be seen elsewhere on the form). The tick on the box is a right handed tick. I DID NOT TICK THIS BOX!. Therefore as far as I am concerned, I did not agree to this particular clause in their t&c's.

 

I did not reply to their email. To date I have not been issued with proceedings against my company!. (Even so, if they had issued them, they have used the incorrect address, as the no of the premises is wrong.)

 

The accompanying letter states

Further to my letter 26 oct, and subsequent telephone call on 2 nov and email on the 3 nov 2011 I have not been left with no alternative but to commence court proceedings, please find enclosed a copy of the summons to be issued in xxx county court on xxx if no contact is received.

 

However in one last attempt to resolve this matter amicably and to avoid any further unnecessary expense and time being spent I am prepared to accept £307.20 in Full and Final settlement of this account.

 

Please contact me on xxxx as a matter of urgency to discuss this account and avoid proceeding being issued.

 

Should you choose not to accept this offer we will issue the summons on the specified date and once judgement is obtained we will enforce it, which may include the use of Bailiffs, Bankruptcy proceedings or charging order.

 

On the particulars of claim this is what is written verbatim.

 

The claimant and the defendant entered into an automatically renewable business to business agreement on the xx.07.10. A copy of which is attached. It was agreed that the claimant would advertise the defendants business in a local children's play canter.

 

The defendant agreed to pay £312 +vat per annum in consideration of the agreement.

 

The defendant did pay the 1st and 2nd years value but has failed to make payment of the 3rd year as invoiced on the xx/xx/xx. The claimant has tried to obtain payment and offered a payment plan the hte defendant has refused to co-operate and respond to the claimants numerous attempts to resolve the matter.

 

The defendant has not submitted a request for cancellation in line with clause 14 as signed for and initialled.

 

The claimant has advised the defendant on a number of occasions that it is a business-to-business agreement is not subject to cancellation without notice having being served, unfortunately the defendant refuses to accept liability.

 

The claimant therefore claims:-

The sum of £374.40 inc vat for the outstanding balance.

The sum of £60.00 for charges in accordance with clause 13

 

The sum of £xx.xx interest @ 8% per annum in accordance with section 69 of the county court act 1984. The daily rate claimed being £.08 from the 19.10.0 to 14.12.10 (56 days) and continuing at the daily rate of £.11 until judgment.

 

The cost of this application and any expenses incurred.

 

Now here's a few issues, I have with this 'claim form'.

 

1: The local playgroup did not receive ANY brochures until Apr11, some 10 months after I signed up with this company.

 

2: Their full and final offer is £26.40 more than their last one (which was received in a email).

 

3: The sales rep put the tick in the box, where I am supposed to of, reasons having been given previously.

 

4: Complimentary e-brochure, loyalty member site appt cards, seasonal e-vites have not been received, neither by myself nor the playgroup in question.

 

5: Check the poc dates . Why those particular dates?

 

6: The letter and claim form have the incorrect address. I don't wish to say more as its a open forum.

 

Anyone have any thoughts?

 

I will not be contacting ths company, as I sincerely beleive this is still all part of the [problem], and wanting me to pay this last invoice. There are just too many inconstancies in my eyes.

 

Now this morning I receive an actual summons, with all the POC’s as listed above.

 

In my eyes, this could be construed as Fraud by false misrepresentaion.

Basically I do not know where to go, or who to ask, so am wondering if anyone here has any ideas to help me please.

 

I have copies of the front and back of this 'contract', which I think has so many loopholes it's like swiss cheese. I will scan and upload if requested.

 

Thanks to anyone who can help out.

 

[cerberusalert]

Moved to the legal forum.

[stevo7790]

It's probably best you scan it up removing any names and personal details, the guys will then be able to go through it.

[jo1lygrngiant]

Thanks guys, I will scan it shortly, and upload. Be about 15-20 mins.

[brokebutnotbeatn]

I think you should read around contract law. Although this may be in the small print of their T&Cs, T&Cs nevertheless have to be fair to be enforceable. I'd be gobsmacked if this ever went near a court!

[jo1lygrngiant]

Hope these turn out ok.

Edited February 10, 2012 by jo1lygrngiant
Removed, as the pics are too small.

[jo1lygrngiant]

claim1.pdfHopefully these can now be seen at the proper size.

 

Apologies for the stupid error yesterday.

 

Many thanks once again

frontcontract.pdf

back.pdf

claim2.pdf

[jacketpotato]

Unfortunately I'm not sure you are in a strong position. You signed up to the T&Cs as a business, and the T&Cs say the contract automatically renews. You say you may claim for fraud or misrepresentation, but unless you can prove that you were specifically assured that the contract would only be in force for 2years (very difficult/impossible), that's a non-starter.

 

Unfortunately you would need to cancel by recorded delivery. Email is normally good enough, but if the contract says you have to use recorded delivery then you have to use recorded delivery. To avoid being on the hook in future under this contract you should cancel by recorded delivery, it costs something like £1.

 

The only thing I can say is it sounds like the company breached the contract. If the company contracted to distribute brochures by a certain time and to print a certain number of appointment cards, and it did not do so, then that is a simple breach of contract for which you could counterclaim damages to off-set the debt. You are entitled to terminate a contract if there is a serious breach of the contract, personally I would send the company a notice by recorded delivery listing their breaches of contract (n.b. breach of contract means the company not doing what it should - this point does not have anything to do with the automatic renewal point) and stating that you terminating the contract for breach. There should be precedents available online. Whether you could prove breach of contract in front of a judge is another matter, and given that the most important part of the contract was the brochures I'm not sure if these points would off-set all of the debt (but should certainly off-set some of it if you could prove that the company was obliged to do these things and did not do them).