O2 Mobile upgrade

Caoimhín

Morning all.

I have a bit of an issue with O2 and maybe some of you can help..

Ok, I was due an up grade last month and after checking around and asking the learned people on Boards, it was suggested to me that the new Nokia X8 or N9 shough be soon available.

So, i went into my local car phone warehouse and spoke to the store manager (the assistant called him as I am a business customer who spends over €1k per year.

I asked him if there was a Nokia called an N8 or X8 and he told me that they were out of stock. He said that he had no idea wht they were being discontinued.

He then showed me a Nokia C6, he told me that it is the very same phone as the N8 (he had never heard of the N9 http://swipe.nokia.com/) to be fair, it wont be released until next month.

From the way he was tak=lking, i got the impression tha the N9/X8 wasnt being released in Ireland. I went ahead and traded my old phone to the C6.

Now, maybe it is a case of "buyer beware" but the way i see it, its like i went in to buy a new car and even though the new modle for this car was out next month, the head sales man/manager knew nothing about it.

I rang O2 and the guy in customer assistance had indeed known about the new N9 and advised me that I could return the produce, the C6 within 7 days and have my money back. The manager in th =e shop advised me that he wouldn't do this as the box was open,

The Consumers Accociation is closed for holidays so I cant ask them. Maybe some of you good people might have an idea of my rights?

Thanks in advance.

cookie1977

I;m not sure if the Nokia N9 will ever get here:
http://www.telegraph.co.uk/technology/nokia/8694467/Nokia-N9-will-not-launch-in-UK.html

drunkmonkey

You can return your upgrade within 7 days and break the contract if you so wish, make sure craphone reverse your upgrade not simply take the phone back, there's deadly be careful dealing with them, the fact the the box was opened shouldn't make a difference. Stick it up to the manager.
Also be weary of advise you get her on boards, especially anyone pimping nokia, there some of the worst made phones available at the moment.

dudara

This is a funny one TBH - your contract is with Carphone Warehouse, as that is where you purchased the phone. You purchased it based on information provided by the manager, which turned out to be incorrect. That's the angle I would take with him.

Unfortunately, you can't return the phone to O2, you need to convince Carphone Warehouse to accept the return.

cookie1977

On that point though I'm not sure now if O2 are providing you with the correct info on the N9 either. Get back on to them on their forum and double check because form reading around the N9 may never reach stores in europe at all, possibly not even make it to the USA either.

jor el

Their returns policy is outlined here. This is for online purchases, but I think it also applies when buying in store. Important bit is this:

11. Right of Cancellation

11.1 If you are a private consumer you may cancel any purchase at any time within 7 working days from the day after completing your order for the Services (in respect of Services) or 7 working days from the day after receipt of the goods (in respect of goods) (“Trial Period”) without incurring any obligation or liability to us, however, you may not cancel any services once we have started to provide them with your agreement. In the event of any such cancellation you must return the goods (including any accessories which were included in the price of the goods) with proof of purchase to your local Carphone Warehouse store. Please note that if you do not return all accessories that were included with the goods, we shall be entitled to charge you for the cost of the missing items. If you do not return the goods to us in accordance with this agreement, you must make the goods available for collection and we may charge you the costs we incur in collecting it. You may examine the goods, but must take reasonable care of it until returned or collected (we consider this to be undamaged and unopened(the seal not broken) with its original packaging). We can also have the goods examined by a third party.

If you are returning under this policy, then you can't return it. You've opened the box, and therefore not entitled to change your mind.

If you are returning on the grounds that they miss-sold the phone to you, then that's a different problem. That will be a hard argument to make though, since the manager told you about the phone options you had, told you they wouldn't have the N9 that you were interested in (could be true, and you don't know that it wasn't true at the time anyway).

He offered you a C6, and you accepted it. The N9 certainly wasn't available on the day, so you shouldn't have accepted it, but instead went back to continue your research. If the manager was aware of issues around the N9, and that Nokia wouldn't be releasing it here, he may not have been allowed to come right out and tell you prior to an official statement by Nokia. You got the impression from him that it wasn't going to come, and it turns out that it isn't, so you weren't lied to, he actually hinted at the truth.

You can still make the argument that it was miss-sold, but it won't be an easy one.

drunkmonkey

jor el wrote: »

Their returns policy is outlined here. This is for online purchases, but I think it also applies when buying in store. Important bit is this:



If you are returning under this policy, then you can't return it. You've opened the box, and therefore not entitled to change your mind.

If you are returning on the grounds that they miss-sold the phone to you, then that's a different problem. That will be a hard argument to make though, since the manager told you about the phone options you had, told you they wouldn't have the N9 that you were interested in (could be true, and you don't know that it wasn't true at the time anyway).

He offered you a C6, and you accepted it. The N9 certainly wasn't available on the day, so you shouldn't have accepted it, but instead went back to continue your research. If the manager was aware of issues around the N9, and that Nokia wouldn't be releasing it here, he may not have been allowed to come right out and tell you prior to an official statement by Nokia. You got the impression from him that it wasn't going to come, and it turns out that it isn't, so you weren't lied to, he actually hinted at the truth.

You can still make the argument that it was miss-sold, but it won't be an easy one.

True but this can be played another way as there's a contract involved here,
he has the right to back out of the contract within 7 days for an upgrade. You can do 2 things, hand back the phone and get your upgrade reversed so he'd be entitled to it again or hand back the phone and move to another network...

jor el

Is that a legal right to cancel within 7 days, or a term from the mobile operators? If it was bought online or over the phone, then distance selling would allow for cancellation within 7 days, but only if the service has not started, and only if the phone was unused. I'm not aware of any specific get out clause in all contracts.

Assuming there is such a get out clause, are the phone and service contract treated as one and the same? Does cancelling the contract allow for returning the phone, especially since it has been opened and used?

theteal

jor el wrote: »

Is that a legal right to cancel within 7 days, or a term from the mobile operators? If it was bought online or over the phone, then distance selling would allow for cancellation within 7 days, but only if the service has not started, and only if the phone was unused. I'm not aware of any specific get out clause in all contracts.

Assuming there is such a get out clause, are the phone and service contract treated as one and the same? Does cancelling the contract allow for returning the phone, especially since it has been opened and used?

i know of one mobile company where it's 14 days. this is the standard contract "cooling off" period. I assumed it was the same with all the operators. an upgrade is essentially a new contract so it falls under this. it doesn't matter whether the phone was used or not.

cookie1977

I think Jor el is correct on this. The distance selling covers a 7 day returns policy but a store has no such legal policy unless it's offered. O2 used to let people return iphones (and other smart phones) with their packaging within 7 days if the customer had a change of mind but in many cases they dont know permit this. These cooling off periods (other then distance selling) are at the discretion of the network or shop I'm afraid.

When O2 allowed these change of minds they allowed the customer to return the phone and cancel the contract. The distance selling legal rules allow the same. Everything else (unless there's a fault with the device) is at the discretion of the network or store.

jor el

If it is the operators/shops own policy, then you are at their mercy. If it's not in law, then you have no consumer protection.

If it is in their policy to allow this though, then they should allow the return. If you can find it, print it off, and bring it into the shop. Tell them to stick by their policy, or they will have effectively broken the contract of sale themselves, and then you can force them to take it back.

drunkmonkey

Carphone are only the middle man in all this the contract is with 02 not carphone. OP did not sign for a carphone contract he signed an 02 one.

When you upgrade your taking out a new contract as the terms have to be signed again and the law around a contract is:


Cooling off period
A cooling off period is the period when a consumer may legally withdraw from a contract without incurring a penalty. If you have given your consent to a service provider, this cooling off period is seven working days from the date you receive the terms and conditions of the contract.


That's nothing got to do distance selling it's standard contract law for consumers.

cookie1977

I dont think thats correct drunkmonkey:

Cooling off period

By law, distance contracts must include a "cooling off" period - usually at least seven days after you sign up for the service - during which time you can cancel your order without having to give any reason.
Some services are excluded from distance selling regulations, including:
Gaming and lottery services
Financial services such as insurance or banking
Hotel bookings and many other accommodation, catering or leisure services
Air, train and other transport tickets
Even if a service is not covered by "distance selling" law, it may still have a cooling-off period.
Life insurance policies, for example, have a cooling off period of 15 days in Ireland. The insurance company must tell you this before you sign the contract.

http://www.consumerconnect.ie/eng/Hot_Topics/Print-versions-of-guides/NCA_services_guide_-_print_version_.html

The 7 working day period during which you can cancel without penalty applies to sales made over the phone/internet or by a salesperson calling to a consumer's home.

http://www.askcomreg.ie/tell_us/phone_and_broadband_contracts.247.LE.asp

It is only distance sales which are covered by a cooling off period unless you have evidence otherwise?

cookie1977

Changing your mind
But what are your rights if you simply change your mind and decide to cancel a service?
Your contract's terms and conditions should detail what happens if you cancel the service, and whether there is a cancellation charge.
As a consumer, you have additional rights if you order services remotely - over the phone, for example, or by email or fax, or from a website or a mail order catalogue.
In consumer law this is called "distance selling", and your contract with the business is a "distance contract".

http://www.consumerconnect.ie/eng/Hot_Topics/Guides-to-Consumer-Law/Services/cancelling-a-service.html

So OP have a read through your contract T&C's quickly and see if there's any clause on cooling off. Otherwise you're at the mercy of the network

wmpdd3

drunkmonkey is right,

under the consumer credit act, you can cancel within 14 days and reverse the upgrade.

The store will suffer a clawback so they wont be too willing to give it to you, but it should be written on your contract.

http://www.irishstatutebook.ie/1995/en/act/pub/0024/index.html

cookie1977

How is this a consumer credit issue?
http://www.citizensinformation.ie/en/money_and_tax/personal_finance/loans_and_credit/credit_advertising.html

I ask because it's the phone they want to bring back and change, which they opened. Still think OP's best off checking their T&C's and seeing what they say.

drunkmonkey

It's all going to boil down to the contract signed in store.

The consumer credit law is a good angle but as far as I know phone contracts don't fall under it, they should though as 02, Vodafone and meteor don't put any credit limits in place for new customers, the more or less give them a blank cheque to run up as much credit as you like.

cookie1977

most do block international calls and roaming for a few months at least. You also pay a month in advance for your plan so you might be hard pressed to run up a large bill at home so quickly. It is a form of credit but it does not come under the consumer credit act I'm afraid OP.

drunkmonkey

There was a 10k + bill doing the rounds here, it should fall under consumer credit, an overdraft would. That and the fact all new bill pay customers go through some kind of credit vetting.
It's never been put to the test but I'd guess if it was the networks would be found to be offering a credit service without limits or regulations around the amount of credit they can offer a customer.