[Article in Times] How broadband 'inertia' clause traps the unwary

damien

Money Matters: Jill Kerby: How broadband ‘inertia’ clause traps the unwary

MK from Dublin writes: I recently signed up for the free Esat/BT Broadband 90-day trial offer. After the trial period was over I was told that since they had not heard from me one way or another I am committed to a one-year contract with them. I don’t want the service. Surely they can’t force me to take it by saying I had to opt out in writing?

As you may have noticed from their extensive television advertising, this offer has been extended. I tried to reach the appropriate Esat/BT spokesman on your behalf but was unsuccessful, so I contacted ComReg, the communications industry regulator, about your complaint.

It said that, as far as it was concerned, the Esat/BT terms and conditions for this offer are “transparent”, in that it shows clearly that the onus is on you to inform Esat/BT if you do not wish to proceed with the offer. Otherwise the one-year contract automatically takes effect.

I think “inertia” clauses like these are a bad idea. In my experience, few sales representatives or consumers ever read their lengthy contracts.

ComReg advises consumers to do that and has published a checklist on its consumer website, Askcomreg.ie, of the questions you need to address before signing any contract.

The financial services industry has tried to tackle this issue by introducing a 15-day “cooling-off period” after the initial sale of a savings or investment product, so that the customer would be alerted that they now had to make a final decision about whether to proceed with the transaction or not.

I think the telecoms industry needs similar consumer protection. Meanwhile, you are stuck with this unwanted broadband service for a year.

Jill Kerby is co-author of the 2005 TAB Guide on Money, Pensions and Tax. E-mail her at money.ireland@sunday-times.ie or write c/o Money Matters, The Sunday Times, Fourth Floor, Bishop’s Square, Redmond’s Hill, Dublin 2, giving a daytime telephone number.

clearz

I think that anyone with half a brain would know If you sign up for a three month trial and dont notify them of your intentions to leave then you would be automatically signed up to the subscription. It serves him/her right anyway he was just trying to get 3 months free with no intentions of getting broadband. I say HAHA rofl

seamus

clearz wrote:

I think that anyone with half a brain would know If you sign up for a three month trial and dont notify them of your intentions to leave then you would be automatically signed up to the subscription. It serves him/her right anyway he was just trying to get 3 months free with no intentions of getting broadband. I say HAHA rofl

I don't know if the clause would stand up in court. An inertia clause such as this, whereby inaction actually leads to you being signed up, may not be reasonable. It's an extraordinary clause that may collapse under legal scrutiny.

Contrary to what I used to think, all contracts are not necessarily binding once you've signed them. Unreasonable or irregular clauses and conditions can be legally challenged, even after signing the contract.

peckerhead

I've been caught in the same way, not so much through 'inertia' as through genuinely extenuating circumstances (partner in a car accident, subsequently hospitalised, hectic couple of months being Mammy & Daddy to 5 kids, etc. — let's just say I had a lot of distractions! :eek:)

I applied for the 3-month trial back in May and they posted out the self-install pack in June. I left it unopened for a month or so, then wrote to them and asked whether I could still avail of the 3 months free starting from the day I actually accessed the service — in the meantime my laptop had 'died' and I knew it would be a while before I could sort out a replacement. I got no reply to the e-mail, which I'd sent to both their sales and customer service departments, so I resent it and posted hard copy in late August. Still no response. Nor did I ever get anything like an invoice, nor any notification about the expiry of the free trial (that of course would negate the intended 'inertia' gotcha...), nor indeed any indication that — as I've just learned yesterday! — my 'live date' was the 10/10/04, and that €195.57 was charged to my credit card on 08/11/04, and a further €85 in December.

I rang their customer services, talked them through it all, and was told that — even though the stuff was still all sitting unopened in its box and I'd never accessed the service, the DSL had been 'sent down my line' (..?) on 10/10, the 12-month BroadbandPLUS contract had now commenced, and there was nothing they could do about it 'because of Comreg's rules' on these free trials... Best advice the guy could give me was to try connecting it up now, 'since you're paying for it anyway'... :rolleyes:

Frankly, I think I'm being bullsh1tted — does anyone else? I can't find anything about these 'rules' on Comreg's site, nor indeed can I find any full terms and conditions on IOL/EsatBT's site, just a waffly FAQ section...

Nor can I see where the €280 charges (already paid!) come from — €80 self-install fee + 2 months @ €47 makes €174, which should cover from 10/11/2004 to 10/01/2005 (the deal was that if you stayed on after the trial ended you'd get the fourth month free, too...)

As things stand, they've already taken more than €100 extra from me and have never given me any form of invoice or breakdown in charges. From what I've read here and elsewhere, IOL/Esat's billing system seems to be a complete mess. And all this for a service I have never attempted to use, and in respect of which they've twice failed to respond to written queries...

Any views/advice? Should I just ring them again and kick up a further stink, or what..?

damien

peckerhead, direct complaints to complaints@esat.com and see how you go from there. Let us know what they say.

When you email complaints@esat.com also send a cc to info@irelandOffline.org to keep us in the loop.

Damien.

peckerhead

Will do, Damien — ta for the interest!

cgarvey

peckerhead wrote:

Nor did I ever get anything like an invoice, nor any notification about the expiry of the free trial (that of course would negate the intended 'inertia' gotcha...), nor indeed any indication that — as I've just learned yesterday! — my 'live date' was the 10/10/04, and that €195.57 was charged to my credit card on 08/11/04, and a further €85 in December.

I thought a company had to send you advance notice of any amount to be charged to your card. I know the Direct Debit mandate companies set up requires this to be the case. However, in my expeirice, large companies get away with certain clause breaches with some banks.

ESat may also argue that you had advance notice of these charges, as you were informed of the installation charge, and the ongoing charge. That's if they correspond to what you have been charged.

peckerhead wrote:

Frankly, I think I'm being bullsh1tted — does anyone else? I can't find anything about these 'rules' on Comreg's site, nor indeed can I find any full terms and conditions on IOL/EsatBT's site, just a waffly FAQ section...

Did you not get a copy of T&C in the post with your modem/welcome pack? If they're in the unopened box, I'm confident Esat will be in a strong position, legally, to argue that they have taken all reasonable steps to get them to you. They're under no obligation (I think they should be though!) to publish them anywhere, just to make them available to you, upon request.

peckerhead wrote:

Nor can I see where the €280 charges (already paid!) come from — €80 self-install fee + 2 months @ €47 makes €174, which should cover from 10/11/2004 to 10/01/2005 (the deal was that if you stayed on after the trial ended you'd get the fourth month free, too...)

Could it be something like you get the fourth month free, but as a credit to your account after 6 months, or something like that? Are you/they including VAT, etc. in calculations?

peckerhead wrote:

From what I've read here and elsewhere, IOL/Esat's billing system seems to be a complete mess.

I've read the same rumours, but it's hearsay, and won't give you much legal defense weight.

peckerhead wrote:

And all this for a service I have never attempted to use, and in respect of which they've twice failed to respond to written queries...

Their customer service is appauling alright, but you have to take some of the blame for not sending the thing back, especially when you were still unclear (months later) as to the status of the trial. You're right though, they have treated you very poorly.

peckerhead wrote:

Any views/advice? Should I just ring them again and kick up a further stink, or what..?

I'd ring ESat again, and get a breakdown of charges, so that you'll know what's what. That'd be my first port of call. After that, maybe ring / call into a Citizens' Advice Bureau, and see what they think, they may recommend further action, such as the Small Claims Court, but usually only after you try to resolve it with ESat.

Best of luck .. and hopeffully your next broadband experience won't be anywhere near as bad!

Slutmonkey57b

POS ate my post.

Ok: new summary
1: You signed nothing.
2: Esat offered you a "try it if you like it" TRIAL, and advertised it as such. You've never used it so they have no proof you liked it, ergo no grounds to continue the service (that you've never used)
3: The charge is coming off your credit card - notify the bank in writing and by email (ccs IOFFL and Esat's secretary's office) that the charge is illegal, state that you have given no authorisation for the charge, and the bank will have no problem refusing to hand over the money to Esat (Esat will also get a nice chargeback fee for attempting to make the charge).

I can't see Esat being able to substatiate this claim in the small claims court.

dub45

From time to time I have tried to raise the issue of T&C's on boards but no one ever seems interested!

I think that the ISP's in general get away with a lot in the current situation.
As people have observed earlier very few people read terms and conditons and that is our fault but on the other hand the ISP's dont want us to read them or to understand them as far as I can see. and they rarely make them easy to read in they they are presented. I think that the law should force all companies to summarise and highlight any clauses which may have financial costs for the customer. I hate those inertia clauses and I really think that in age of so called consumer law they should be outlawed by the director of consumer affairs. A lot of people seem to sign up for stuff over the phone and as far as I know no ISP issues a hard copy of Terms and Conditions to that type of customer or indeed any customer!

I am with UTV and they have a notice which states that all changes to T&C's are brought to customers's notice in advance of implementation but as long as I have been with them I have never received notification of any change nor as far as I can ascertain has any other customer. this would mean that UTV are permanently in breach of their own terms and conditions! ISP's can apparently put virtually anything into their T&C's. UTV have one which states that they are not responsible for any defects in the service!!! Imagine buying a car from a manufacturer who had a similar clause...........

cgarvey

Slutmonkey57b wrote:

POS ate my post.

Ok: new summary
1: You signed nothing.
2: Esat offered you a "try it if you like it" TRIAL, and advertised it as such. You've never used it so they have no proof you liked it, ergo no grounds to continue the service (that you've never used)
3: The charge is coming off your credit card - notify the bank in writing and by email (ccs IOFFL and Esat's secretary's office) that the charge is illegal, state that you have given no authorisation for the charge, and the bank will have no problem refusing to hand over the money to Esat (Esat will also get a nice chargeback fee for attempting to make the charge).

I can't see Esat being able to substatiate this claim in the small claims court.

1 - doesn't matter .. a contract doesn't have to be written.
2 - Don't see that that matters either. They supplied the service, and it was available for use, which covers their end. The fact that the peckerhead didn't use it is not their fault, or problem.
3 - Yeah, that's the sticky one .. I'm not sure of the legalities, but I have it in my head that the originator must notify in advance. Like I said earlier, legally, this notice might have been deemed to have been served already (when peckerhead signed up), because it's a fixed fee. The figures don't add up though, which is an issue.

I don't think ESat would win a SCC case either .. but INAL, so I don't know .. and I'd advise peckerhead to talk to somebody who does know before doing so. I think s/he has a case on the grounds that he made several (recorded) attempts to clarify the contract, and they charged him an amount he was not expecting / notified of.

.cg

cgarvey

dub45 wrote:

From time to time I have tried to raise the issue of T&C's on boards but no one ever seems interested!

I get that sense too .. but I guess, they're all more or less the same, so if you want BB you gotta chew. The worst clause is the 12 month contract, I think. Rules out students, a lot of renters (unless they happen to connect on the 1st day of the lease!), etc.

dub45 wrote:

I hate those inertia clauses and I really think that in age of so called consumer law they should be outlawed by the director of consumer affairs.

Agree totally.

dub45 wrote:

UTV have one which states that they are not responsible for any defects in the service!!!

I'd find it hard to believe that if the service was defective (to a reasonable extent, I guess), that you wouldn't be entitled to get out of the contract .. I can't see that clause standing up in court, if it came to it. Sale of Goods & Supply of Services Act would, presumably, take precedence there.

seamus

cgarvey wrote:

I'd find it hard to believe that if the service was defective (to a reasonable extent, I guess), that you wouldn't be entitled to get out of the contract .. I can't see that clause standing up in court, if it came to it. Sale of Goods & Supply of Services Act would, presumably, take precedence there.

Yeah, pretty much. The "no guarantee" type of clause like that is mainly to protect the company from having to keep to uptime guarantees. A 6 or 12-hour outage at rare times isn't so bad, the occasional hiccup (once every two months, etc) in the service is fine. If someone tried to sue or get out of their contract due to minor outages occuring once or twice, that clause protects the company. It's not reasonable to expect any company to have an SLA by default on products.

For long-term or frequent outages though, the clause wouldn't protect the provider.

BrianD

POS ate my post.

Ok: new summary
1: You signed nothing.
2: Esat offered you a "try it if you like it" TRIAL, and advertised it as such. You've never used it so they have no proof you liked it, ergo no grounds to continue the service (that you've never used)
3: The charge is coming off your credit card - notify the bank in writing and by email (ccs IOFFL and Esat's secretary's office) that the charge is illegal, state that you have given no authorisation for the charge, and the bank will have no problem refusing to hand over the money to Esat (Esat will also get a nice chargeback fee for attempting to make the charge).

I can't see Esat being able to substatiate this claim in the small claims court.

It will. You accepted the free trial subject to terms and conditions. I have UTV Clicksilver and I am still under the trial. It was quite clear to me that they will start charging after the free trial and the contract is 12 months I am unsure if this is the case specifically with Esat BT but I am sure they can't be much difference. If you did not want to be charged after the free trial why give your credit/debit card? By giving that you must know that there is some possibility of a charge! For most providers the trial starts once the equipment is delivered. They have no control over when you want to connect and how frequently you use it after that. The trial is specific to calendar months and not when you connect. You could in theory find that you are unable to connect or that your PC is not up to scratch. Therefore you would deem the trial to be a "failure". However, you need to inform the provider that you are unsatisfied following the trial.

Furthermore the customer is aware that it is a free trial. If they do not wish to continue they should have the service disconnected and the equipment returned to the supplier by the last day of the trial.

Having said that, it would be good practice by the providers to send an e-mail towards the end of the trial stating "times up you will be charged from now on and the contract duration is for 12 months". Furthermore, there is no excuses for poor customer service from Esat if you inform them that you don't want the kit after trial and they do nothing about it.

Remember there is nothing for free in this world!

WezzyB

It would be better if the trial started the 1st day that you connect to the service not the day that its enabled on the exchange, this can be up to 10 days in the difference.

When I cancelled my IOL BB Plus last september after being on the trial I sent the modem+webcam+letter to the address that the agent @ 1904 supplied to me. Everything ok, except i recieved a charge on my credit card on the 27th of December of 180.16 the name on the charge was 'ESAT FUSION' So I assumed it was to do with the Esat Home Phone package that I currently have, then I rang them up and they saw that I hadn't cancelled the service, they didn't receive the letter I sent with the modem, as that went to GLS and they never forwarded the letter, apparently you send to send the letter to Esat and Modem c/o GLS. The agent saw the last time i used the BB was before the end of my trial back in September so she has reimbursed me. Its a pity that they never sent me any letter between September and December, but such is Esat...

damien

dub45 wrote:

and they rarely make them easy to read in they they are presented. I think that the law should force all companies to summarise and highlight any clauses which may have financial costs for the customer... I hate those inertia clauses and I really think that in age of so called consumer law they should be outlawed by the director of consumer affairs. A lot of people seem to sign up for stuff over the phone and as far as I know no ISP issues a hard copy of Terms and Conditions to that type of customer or indeed any customer!

... I have never received notification of any change nor as far as I can ascertain has any other customer.

dub45, why don't you contact the ODCA - http://www.odca.ie/ and ask for their advice on this ? They might direct you to ComReg, if they do go to ComReg and see what transpires. Be patient and exhaust all the usual routes. Keep us informed of how you get on by creating your own thread here and update it as you get the feedback from the ODCA and ComReg.

As per our Broadband Horror Stories I think some of these silly T&Cs and odd ways of signing up free trials need to be examined and some sort of ruling needs to be brought out which makes the telcos adhere to some sort of fairness standard.

BrianD

it is my experience that the SP doesn't send the kit to you until after the line is enabled for BB. Certainly this was the case with UTV.

It is reasonable that the trial starts the date the modem is dispatched to you (as is the case for most trial users) and not when you connect. After all,they have no control over whether you connect minutes after recieving the modem or a month is later.

The article refers to "unwary" consumers. The onus is on the consumer to read the t&c's and inspect the offer and prices before accepting. As much as companies have responsibilites so does the consumer.

Our man in Havana

I had a similar problem with esatbt with their phone service. They signed me up and never gave me the T&C's. They said they would send them out but they never did. They then never sent me a bill and just debited willy nilly for a few months. I canceled the DD and the bank refunded the payments.

The leagl advice i received said that if you are not aware of the contract T&C's and they are not read out to you if sign up by phone, you cannot be bound by any contract. Esat do not warn you that they may record calls so any tape would not be admissable in court.

Slutmonkey57b

True, the system might run on a verbal contract, but if they're charging his credit card things become a lot less murky and a lot easier to deal with. Banks don't take any sh!t when it comes to unauthorised charges on a card, because they're not about to let their arse swing in the wind over it. If the seller doesn't have a written authorisation, proof of delivery, or similar, then they have no business charging the card.

In this case, the T&C states that you try the service for x months, then they start charging you. Regardless of whether they should contact you before confirming the contract, and I think we all believe they should - the point is, He never used the service therefore never tried it. If he never tried it, then the contract was never honoured from the start, and he's not liable. The service was never delivered to the customer. It's like a company saying "oooh well we put the box in the van, so nya." If the customer didn't receive said box, no payment is due. Even if, in this case, he got the "box", he's returnng it unopened. A bit late, but unopened nonetheless.

eircomtribunal

dub45 wrote:

From time to time I have tried to raise the issue of T&C's on boards but no one ever seems interested!

"9.3*On termination of this agreement for Flat Rate Services, the Customer will be charged eircom net Pay As You Go per-second rates for all calls made to the Flat Rate Service from the end of the previous Billing Period to the date of cancellation of the Service. For this last Billing Period, the customer will not be charged a Flat Rate Subscription."

This classic booby trapping clause is still in Eircom's T&C for its flat rate products. I took time to raise the issue with ComReg. Their pathetic response: If Eircom choose to put it into the T&C then ComReg can do nothing about it.
I took time – a lot – to raise the issue with Eircom. After promises, endless promises, to draw the issues out until after the Oireachtas Committee hearing (I had told them that I intended to bring the issue to the attention of them) I did hear no longer of them.

P.

dub45

cgarvey wrote:

The worst clause is the 12 month contract, I think. Rules out students, a lot of renters (unless they happen to connect on the 1st day of the lease!), etc.

While I can understand the initial requirement for a 12 month contract given that there are set up costs etc I think all further attempts should be resisted. Again I have tried to raise this issue before but no one seems interested and I think it is very relevant as people are so mobile these days and a 12 month contract can very quickly become an expenisve liability.

UTV in particular seem anxious to get customers into additional 12 month contracts. When Eircom reduced their wholesale prices they would not pass them on unless you signed up for a further 12 month contract. And now they require you to commit to a further 12 month contract simply to move between Clicksilver products even though the cost to them for a move upwards is zilch while a move downwards is 15 euros. They are claiming that this is a term and condition but it is 'omitted' from the current T&C's! Now if that isn't abuse of Terms and Conditions what is?

dub45

eircomtribunal wrote:

............. I took time to raise the issue with ComReg. Their pathetic response: If Eircom choose to put it into the T&C
then ComReg can do nothing about it.

On that logic then an ISP can put anything in there and it does not matter!
Does anyone know strictly speaking who should be responsible for this area or in fact is anyone responsible?

It seems to me that the following should be a basis anyways for terms and conditions. (irrespective of whats allowed to be in them - thats for another day:)


Everyone should be given a dated hard copy of terms and conditions applying when they sign up no matter how they sign up.

Any changes in terms and conditions should be formally notified to customers.

Master copies of terms and conditions and the dates from which they applied should be held by the isps.

Any clause which has financial implications for a customer should be summarised up front and brought to the customers attention.

Liabilities and obligations on the cusotmer's part should be very clearly laid out.

There appears to be no sanction if an isp breaches thier own T&C's surely this needs to be addressed in some way?

Moriarty

dub45 wrote:

Again I have tried to raise this issue before but no one seems interested and I think it is very relevant as people are so mobile these days and a 12 month contract can very quickly become an expenisve liability.

In the report on our meeting with minister Dempsey and the DCMNR..

damien.m wrote:

We raised the matter of consumer problems such as pricing and the 12 month contract lock-in.

BrianD

slutmonkey wrote:

In this case, the T&C states that you try the service for x months, then they start charging you. Regardless of whether they should contact you before confirming the contract, and I think we all believe they should - the point is, He never used the service therefore never tried it. If he never tried it, then the contract was never honoured from the start, and he's not liable. The service was never delivered to the customer. It's like a company saying "oooh well we put the box in the van, so nya." If the customer didn't receive said box, no payment is due. Even if, in this case, he got the "box", he's returnng it unopened. A bit late, but unopened nonetheless.

I wouldn't agree and I don't see any similarity between the box in the van. All of these free trials are similar nature and is basically making a broadband service available to the customer to evaluate with his equipment for a specified period of time.. The point is that if the customer signs up for a free trial the SP can only assume that this is what the customer wants. It is irrelevant if the customner connects or not or how much he uses it The line is enabled and equipment supplied. The contract of the free trial is honoured. If I order cable tv and never connect a TV to it can I claim the contract is not valid? The fact once the line is enabled the service is available to the customer. It is irrelevant if any boxes are opened or not.

If the customer does not use the service during the trial that's his problem. He can still opt out of the trial at any point up to the end of the time period and not be contractally bound for 12 months.

In regard to T&C's these should be available to the customer immediately. I have no problem with them being delivered electronically but it might be a good idea to put a hard copy in with the equipment when it is being delivered. I agree that there should be some sort of confirmation process before the customer progresses from the trial period to the 12 month contract.

dub45

Moriarty wrote:

In the report on our meeting with minister Dempsey and the DCMNR..

I meant interest amongst the 'ordinary' posters or indeed non posters on boards

Tom Dunne

Interesting thread, this.

I have just signed up for the broadband offer this morning with Esat and the very nice chap on the phone didn't mention any terms and conditions, nor did he mention any kind of time limit nor that I have to notify them if I don't want to sign up for a full year.

BrianD

he should have summarised the offer to you. Obviously, you would know what the offer is given that you are probably ringing in response to their advertising material.

The issue here is not whether somebody takes advantage of the offer and connects to the service but the level of information and the clarity of same from the SP to the customer. All of these SP's need to really ramp up their customer service and explain to the consumers the nature of the contract and its terms and conditions. The customer should get a copy of the t&c's in either soft or hard form. There should also be a confirmation mechanism in place before the customer moves from the trial period to the contract period.

It's time that ComReg stepped in and reviewed all the T&C's of the various providers and stated what is acceptable and not acceptable. Perhaps they could draw upa simple guide explaining the effect of the important terms to the consumer. This would allow consumers to educate themselves a bit more when making a purchase decision.

dub45

tom dunne wrote:

Interesting thread, this.

I have just signed up for the broadband offer this morning with Esat and the very nice chap on the phone didn't mention any terms and conditions, nor did he mention any kind of time limit nor that I have to notify them if I don't want to sign up for a full year.

From what I have read this experience would seem to be the rule rather than the exception and it surely leaves the ISP's very open in the event of disputes. Unless loads of call center employess are negliglent it must also mean that whatever script they have for signing up new customers does not include mentions of Terms and Conditions.

In the absence of clarity in these matters the only conclusion to draw is that the ISP's are at best interested in keeping their customers confused and at worst deceiving their customers.

Surely it would be possible for every isp to do the following:

1.After a sign up call every new customer gets an email saying we wish to acknowledge your application blah blah and we wish to draw your attention to the Companies terms and conditions which are available at www...
We strongly urge you to read them and get back to us with an questions.

2. On activation of the line every new customer gets something along the following lines.

Your line has now been activated and your trail period commenced on.......
In the event that you do not wish to proceed with a full 12 month contract we must be notified by phone/email/whatever no later than............. and all equipment returned to.............................by (method and date)

(An automated reminder could easily be issued a month in advance of the expiry date)

if you proceed with the full 12 month contract your account will commence to be debited on.......... and the following is the amount which wil be charged ............(details included of set up fees advance rental etc

For subsequent months the charges will be.............

your attention is drawn to the monthly cap and and excess may/will be charged at.............

This would cover most of the issues and hardly seems a lot to ask for.

Slutmonkey57b

BrianD:
Good point, but the difference between signing up for cable TV and signing up for the trial is that the 3-month trial is sold as usage-dependant. If you get NTL connected, they you're asking them to connect you to a service that you might want to use, but you're prepared to pay for its availability whether you actually use it or not. In this case the offer is that you're ordering a service for free on the basis that if you try it and want to continue using it, you can. He can't be signed up for a continuation since he never started using the service. Esat have done exactly that.

You're right, the box analogy is not quite right, but I was trying to show the "proof of delivery" evidence that all credit card companies use. If you are a company that wants to charge someone's credit card without the card's physical presence, and in the absence of someone to sign a reciept for the card, then the bank's rules are extremely strict. In this case, Esat have no effective proof that the customer authorised them to charge, or actually recieved any "product" that could be charged.

BrianD

We might fall out of this one but as far as I can see that the "free trial" is not usage dependent at all. The contractual implications start once the modem is dispatched. Esat have no control over you willingness and ability to connect to the service and the compatability of your equipment. It is supplied as a three month time trial. If you notice their advertising states "at last you have the opportunity to trial broadband". A broadband contract is really governed by two items - provision of a broadband signal and the duration of time you want this service (set at 12 months by the SP).

Therefore there is no contract is no more usage dependent than a 3-month free trial of any other service such as cable TV.

In regard to the credit card, there are plenty of services that charge a card without its physical presence. Online sales for example, I've bought plenty of services including hotels over the phone for the company without the card ever being physically produce. When the person fills in a form online or over the phone and gives a credit card there is an implicit understanding that the card will be charged after the date the free time trial offer ends. If the SP does not explain this to the customer then the customer should ask for an explaination. The authorisation to charge is included in the contract governing the time trial of broadband.

cgarvey

Slutmonkey57b wrote:

BrianD:
Good point, but the difference between signing up for cable TV and signing up for the trial is that the 3-month trial is sold as usage-dependant.

You're subscribing to an additonal service on your phone line. You pay a flat subscription fee .. it is just like cable TV. Granted you pay a surcharge if you go over the cap, but that only applies to a negligbile number of people.

Slutmonkey57b wrote:

If you get NTL connected, they you're asking them to connect you to a service that you might want to use, but you're prepared to pay for its availability whether you actually use it or not.

Exactly like the DSL signal on your line. Always-on !- Always-use. DSL is Always-on.

Slutmonkey57b wrote:

..but I was trying to show the "proof of delivery" evidence that all credit card companies use. If you are a company that wants to charge someone's credit card without the card's physical presence, and in the absence of someone to sign a reciept for the card, then the bank's rules are extremely strict.

The rules state you must show proof of delivery if you don't want to incurr the cost of the chargeback, no that you must obtain PoD. Most big companies don't (travel/hospitality/small-medium orders online). Most take the risk that 1 in X,000 will be fradulent and therefore cost the company.. vs. the expense/inconvenience of CoD or PoD delivery.

.cg

cgarvey

dub45 wrote:

urely it would be possible for every isp to do the following:

Good suggestion, and something that should be done. Either ComReg or ODCA should put pressure on the intustry to do that.. or go to the govenrment for any additional legal weight they'd need to force that. I'm not sure if ComReg can do this.

Sangre

Ok peckerhead I havent read all the replies but I seriously doubt that they could legally enforce those charges, so many things wrong with it I dont know where to start. Dont have time now but I would personally consider talking to a solicitor.

Slutmonkey57b

There seems to be a difference however between the way the product is sold and the way it is contracted. It is contracted (from what I can tell) as a "We send you the modem, switch on your line (maybe) and after that it's all your problem". Where Esat would have difficulty is that their sales pitch for the product mentions none of these things, instead it is pitched as "see if you like it, if not, it's free!". Having never tried it, and not having been given a set of T&C's, then by the information Esat have given him, he's liable for nothing.

If esat were being at all competant about it, they would make sure that T&C's protecting them from this sort of late cancellation are more clearly advised to the customer. Eircom were similar with the free ISDN install recently, the only set of T&C docs they sent out to customers contained a 1 page letter with a form attatched for returning the modem. They did at least have the intelligence to advise that late return of the modem = hefty charge. but if you didn't open the box you would have no idea of the T&Cs.

I deal with "non-present" card transactions a lot, and where a merchant has a contract with the bank to use the system, they have to have an approved method of obtaining the card information. Most online sites use an out-of-thebox approved system like "Verified by Visa", paypal or an SSL server, while "traditional" offline companies usually use proof of address and delivery along with fax copies. Somewhere like a hotel will generally ask for a fax copy of back & front, and in any case will have some contact with the customer (particularly in a htoel where they are trapped) or a signature at the point of delivery. So at some point the merchant will have collected bank-approved documentation to show that service/product X was ordered in good faith and delivered in good faith.

Esat have kind of left themselves open on this one by simply not taking the time to advertise properly, or talk to their customers properly. In any case, a customer service manager is going to see that fighting this one screams bad publicity all the way. Not that that usually stops them.

cgarvey

SlutMonkey, I don't want to drag thread off-topic .. but I agree that ESat (and all the telco's, ESat aren't the only ones to blame here) should make it alot clearer .. and should have you return the signed copy of the T&Cs before anything happens (or at least a reply to an email with them enclosed).

However, CNP transactions can be performed (according to any merchant contract I've seen) legitmally without proof of delivery (or use of a 3rd party verification service). As I said originally, the onus is on the merchant to prove delivery, in the event of a chargeback.. and it's that risk that alot of businesses absorb. Also having SSL offers no protection against a chargeback.

But that's being slightly pedantic..