Dodging the cooling off period

I

Ipwn 4

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A certain fly by night ISP is attempting to hold me to a cancellation policy as they are dodging the cooling off period in the CPA by stating that they offer a trail service which voids the cooling off period clause of the CPA.

Surely this cannot be legal? I signed up for the account during a period which the first 7 days of the agreement would be free anyay and cancelled within 24 hours of starting the agreement due to the service under performing massively.

Please help me out here?
 
As far as I am aware the cooling off period only applies to goods or services sold through direct marketing. If that is the case then you can cancel the contract as it is only in effect from when you signed up for a paid service. However most ISP's don't seem to do direct marketing anymore and if that is the case then you don't have a cooling off period.
 
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Gladly as they are challenging me:

The company is OpenWeb /drops head in shame for even doing business with them.

I cancelled my account within 24 hours due to the lack of performance (80Kbps throughput at 7pm). According to them I have been shaped within the 1st day after 16GB of usage... Nice hey.

anyway, they have a clause that states that the CPA is void due to them offering trial accounts. This is like saying having a term in the myBB terms and cons that states that you can kill people, but common law states you cant? Who do you think is right...

The CPA is there to protect consumers from places like this for a reason.
 
You did 16GB in one day on an Openweb account?

My hero...
 
There is no default cooling off period when buying any consumer goods. As has been mentioned it only applies when you are, for lack of a better word, coerced into a transaction by means of direct marketing.
 
HapticSimian said:
There is no default cooling off period when buying any consumer goods. As has been mentioned it only applies when you are, for lack of a better word, coerced into a transaction by means of direct marketing.
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Yeah seems I misunderstood the term....
So what now, what does one do? Is there anything you can do to get out of paying for a month more then you should?
 
Ipwn 4 said:
Yeah seems I misunderstood the term....
So what now, what does one do? Is there anything you can do to get out of paying for a month more then you should?
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It's tricky; if the Ts and Cs of the company you've transacted with are clear, then they are within their rights to enforce them. One tends to find that worthwhile enterprises are willing to make concessions in the interest of consumer relations, especially shortly after the conclusion of a transaction. It leaves a really sour taste when a company insists on wringing every last possible cent out of someone who is clearly already dissatisfied.
 
Ipwn 4 said:
So what now, what does one do? Is there anything you can do to get out of paying for a month more then you should?
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As others have pointed out correctly, the cooling off period introduced by the CPA is limited to transactions stemming from direct marketing. However, two other CPA provisions are worth highlighting:

(1) Per Section 14 of the CPA, natural persons are entitled to cancel fixed term contracts with 20 business days notice. Suppliers, in turn, are entitled to charge a "reasonable" cancellation fee.

(2) Per Section 54 of the CPA, consumers are entitled to quality service and may insist on a service remedy or refund if a supplier fails to perform a contracted service in a timely fashion and/or fails to satisfy standards that would be generally expected.

So, as I see it, you have two options:

(1) Assuming the ISP contract is in your personal name, terminate it with 20 days notice and pay OpenWeb's cancellation fee (if any).

(2) Terminate the contract and insist on a refund on the basis that OpenWeb did not provide an acceptable service.

Unless we're talking about a lot of money here, I would opt for the former.
 
Ipwn 4 said:
A certain fly by night ISP is attempting to hold me to a cancellation policy as they are dodging the cooling off period in the CPA by stating that they offer a trail service which voids the cooling off period clause of the CPA.

Surely this cannot be legal? I signed up for the account during a period which the first 7 days of the agreement would be free anyay and cancelled within 24 hours of starting the agreement due to the service under performing massively.

Please help me out here?
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School fees. Write it off and move on.
 
ambroseg1 said:
This ^.

Why the hell would you try Openweb with all the bad press they have received on this forum??
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You know what, i have actually never had issues with them in the past, i had a shared uncapped account and it was awesome 95% of the time. Once it got bad they would move me to a new shared account and life would go on.

This was about a year ago though, now things seem much worse.
 
Firstly, they talk about the cooling off period in the ECTA, not the CPA. I don't know what the ECTA states in this regard but it has nothing to do with the CPA.
2.2.3 OpenISP offers 7 day complimentary trial accounts for the purpose of client evaluation – these are available on request by emailing : [email protected] (To prevent abuse only one account is available to each client per month). Since Openweb offers the capacity for clients to evaluate its ADSL service before purchasing, the “cooling off” period as regulated by ECTA is inapplicable.
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Secondly, if you cancelled within 24 hours and still need to pay, I assume you weren't on the trial account? Unfortunately, when it comes to ISP's (much like cellular providers), you should always try before you buy. That is why all of them have free trial accounts.

Lastly, their T&C's (like all ISP's) are very clear that there are no guarantees regarding speed, so you will have a tough time claiming a refund due to bad service levels.
4.5 OpenISP will make every effort to make the service available at all times and will use its utmost endeavours to strive for 100 % (one hundred percent) uptime and associated bandwidth speeds. However, since OpenISP relies on numerous suppliers in order to provide the sevice, OPENISP is unable to and does not guarantee 100 % (one hundred percent) uptime and associated bandwidth speeds. The bandwidth speeds advertised on the Openweb website indicate the maximium theoretical speed and no warranties are made in this regard. All access to the electronic communications infrastructure is rendered on a “best effort” basis and OpenISP accordingly does not offer any form of service level agreement whatsoever.
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So you can try and do the 20 day cancellations and see if they charge you a penalty, or just cancel and write this off as school fees as mentioned before. It sucks but that is the reality of business.
 
furpile said:
Firstly, they talk about the cooling off period in the ECTA, not the CPA. I don't know what the ECTA states in this regard but it has nothing to do with the CPA.
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I was hoping no-one would raise the ECTA because it introduces a lot more complexity, but here goes ...

The ECTA also includes a cooling off period (Section 44), but it is specific to electronic transactions and is not contingent on direct marketing (i.e. electronic transactions are subject to a cooling off period regardless of whether they were initiated due to direct marketing or not). Furthermore, the cooling off period included with the CPA (Section 16) does NOT apply to transactions that fall under Section 44 of the ECTA.

BUT, the ECTA's cooling off provisions do not apply to all electronic transactions. One of the exceptions are "services which began with the consumer's consent before the end of the seven day-period referred to in section 44". In OpenWeb's case, their service CLEARLY began before the end of the seven-day period. Therefore, the ECTA's cooling off period does not apply. Therefore, the CPA's cooling off period does apply. Unless OpenWeb did not use direct marketing to initiate this agreement, in which case the CPA's cooling off period does not apply.
 
Greig Whitton said:
I was hoping no-one would raise the ECTA because it introduces a lot more complexity, but here goes ...

The ECTA also includes a cooling off period (Section 44), but it is specific to electronic transactions and is not contingent on direct marketing (i.e. electronic transactions are subject to a cooling off period regardless of whether they were initiated due to direct marketing or not). Furthermore, the cooling off period included with the CPA (Section 16) does NOT apply to transactions that fall under Section 44 of the ECTA.

BUT, the ECTA's cooling off provisions do not apply to all electronic transactions. One of the exceptions are "services which began with the consumer's consent before the end of the seven day-period referred to in section 44". In OpenWeb's case, their service CLEARLY began before the end of the seven-day period. Therefore, the ECTA's cooling off period does not apply. Therefore, the CPA's cooling off period does apply. Unless OpenWeb did not use direct marketing to initiate this agreement, in which case the CPA's cooling off period does not apply.
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So you are saying that if you start with their 7 day trial account you don't have a cooling off period? But then OP must still be in the trial time (cancelled within 24 hours) and shouldn't have to pay anything.

If OP did not start with the free trial, but directly signed up for an account, then he should have the cooling off period?

So he should have a way out either way? Or am I missing something?

And it seems there was no direct marketing, so we can ignore the CPA provisions.
 
Ipwn 4 said:
You know what, i have actually never had issues with them in the past, i had a shared uncapped account and it was awesome 95% of the time. Once it got bad they would move me to a new shared account and life would go on.

This was about a year ago though, now things seem much worse.
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Just read your first post again. Why call them fly-by-night?
 
furpile said:
So you are saying that if you start with their 7 day trial account you don't have a cooling off period? But then OP must still be in the trial time (cancelled within 24 hours) and shouldn't have to pay anything.

If OP did not start with the free trial, but directly signed up for an account, then he should have the cooling off period?

So he should have a way out either way? Or am I missing something?
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It all depends on how you define "transaction" and, unfortunately, the ECTA doesn't include a very helpful definition: ""transaction" means a transaction of either a commercial or non-commercial nature, and includes the provision of information and e-government services"

So is a free trial a "transaction"? Or does the "transaction" only begin when a customer pays for the service or, at the very least, agrees to pay for the service having exhausted the free trial?

I suspect OpenWeb is banking on the latter. That way, they can argue that customers who sign up for a free trial can't claim the ECTA cooling off period once the free trial has expired since the free trial is exactly 7 days long and (per my earliest post) the ECTA cooling off period can't be applied when consumers consent to a service that begins before the end of the 7 day cooling off period. In other words, the SERVICE begins immediately, but the TRANSACTION only begins after the 7 day free trial.

Is it possible, legally, to separate a "service" from a "transaction"? I suspect not, but I have no idea whether any applicable legal precedent exists.
 
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