breach of contract??

  mello 19:00 07 Feb 2008

I purchased a computer system for my business which comprised of 3 tills and a back office server. All were networked The Maintenance contract was included in the first 12 months and thereafter it was £2000 per yr which we paid. From the time it was installed it did not work properly for any reasonable length of time, it would crash intermittently and the facilities would be unavailable for days at a time. The tech support was difficult to get but when we did get it the engineers said it was normal teething problems which would eventually be resolved. As time went by it became obvious that the company could not understand what the problem was and they began to get very difficult to get hold of. We stuck with it because we did not have a lot of choice, it had cost £16000.0 and so we did not feel inclined to write that off and get a new provider. However the daily crashing of the system
and the lack of concerted response by the company was so detrimental to the business that we did finally have to get a new supplier. Before we did, we said the the original company, if you cant get the system working and you are not giving us the maintenance in order to have a functioning system then we want our money back. They have refused and it is going to be a legal battle to get them to pay up. Can anyone advise what our rights are??

  MAJ 19:30 07 Feb 2008

I'm not a lawyer nor am I a solicitor, that's who you should be contacting, mello. We don't know the full story either, but on the face of it, you haven't received what you paid for (other than the equipment, that is), so............

  STREETWORK 19:39 07 Feb 2008

Normal Teething Problems...

what rubbish, take expert legal advice from your insurers/soliciter and fight for your rights, go on mention the firm responsible...

  Totally-braindead 19:48 07 Feb 2008

I'm not a lawyer either but on the face of it you paid for a service you did not receive.
I would take proper legal advice as its a lot of money for nothing.

  Marko797 21:10 07 Feb 2008

(or not as it seems) springs to mind.
I'm sure FE will be in like a shot on this one.

  Forum Editor 22:46 07 Feb 2008

1. When you placed the original order.

2. What 'maintenance' entailed in the time that the company was involved - how many visits they made, and what they did.

3. At what point you appointed a new contractor

4. Did the new contractor sort the problem out?

5. If so, what was the cause of the problem.

6. Did you at any point formally (in writing) tell the original contractor that you were rejecting the system as not fit for its purpose?

  Scorpion Bay 13:19 08 Feb 2008

...but I am a trainee solicitor, so lets see if I remember this right :-)

Under s.14(3) of the Sale of Goods Act 1979, there is an implied term in the contract that the goods sold to you are reasonably fit for their purpose. You could also try s.14(2), which states that the goods have to be of a satisfactory quality (s.4(2) of the Supply of Goods and Services Act 1982 says much the same thing).

From what you've said, the goods clearly fall short of the standards expected from the supplier, although as others have said, we don't know the whole should really answer FE's questions and you should certainly seek legal advice from your solicitor; there are alternatives to litigation, and he/she will be able to advise you on what's best for you.

  Forum Editor 18:22 09 Feb 2008

You have indeed remembered it right.

mello emailed the details to me, but if we're all to follow the thread it's necessary to have them here, so I've asked mello to post the information.

  Forum Editor 09:38 10 Feb 2008

that was sent to me via email:

"The system was purchased in 2003

The maintenance contract was to include all software and hardware updates, on line tech support and engineers visits when necessary.

We did not record how many visits were made but over the three yrs there were visits made when they could not fix the problem by dialling in. These visits were made reluctantly and after several tense phone calls and faxes to report that we could not trade.
They would visit, spend a couple of hours or so trying to get it working, then leave and one hour later it would crash again. Sometimes they would change different bits of hardware, once when they came, the server switched itself off in front of an engineer and he said 'its not supposed to do that!'

The engineers would often phone their office for advise and some of the time they would seem quite stressed.
We put up with this until March 2007 and we had to get another provider to save us losing more business.
We did write to the first company saying that as they could not whatever the problem was sorted out ,then their sytem was not fit for purpose. No reply.
The new provider installed all new, networked system and we have never had a problem. They did not look into why the other system did not work.
I am sure we must have some right to claiming our money back from this dreadful company who,by the way told us we were the only ones with a problem....totally untrue as I have found several others in the same position and who have written their support, one is willing to give evidence in court.

However they are using lawyers who are threatening me with the issue of costs and we as a small business cant afford to run up legal bills. The only defence they have is to say that we did not know how to use the system, that cables were found loose etc. I really dont know what the risks are in taking it to court and feel that if I go as a litigant in person, their lawyers will run rings around me"

  Forum Editor 09:51 10 Feb 2008

is that we're not lawyers here, and if you plan to enter into a litigation process you should discuss the whole matter with a solicitor before you even think about going to court.

That said, one critical factor in any case where there's a 'not fit for purpose' dispute is whether or not you have notified the supplier in writing that you are rejecting the system. If you have not done so, it can be argued that you accepted it, and your case is weakened. If you have evidence of the fact that you expressed your dissatisfaction to the company, and did so on several occasions, your case is stronger, but you appear to have accepted the engineers' frequent attempts to rectify matters, even though the system repeatedly failed to work.

This appears to have gone on for a long time - between three and four years - and that doesn't help matters. What will help is any third-party evidence to show that the company's work was faulty in other cases, and the fact that another company installed a new system that worked perfectly from day one is an indication that there was obviously something fundamentally wrong with the original installation.

My best advice iis that you have a very good case to say that the first company did not provide you with a system that was fit for purpose. You have plenty of evidence to support your claim, but it's a pity that you waited so long before acting.

I think that you should talk to a solicitor. A lawyer's letter to the other side, telling them that you will vigorously defend any action they may take could just do the trick - it often works - but it must come from a solicitor, not from you.

  mello 09:51 10 Feb 2008

thank you for that, I had to e-mail you because posting a thread here did not work and PC Advisor
gave me your e-mail.
We have logs of calls and faxes that prove we did not get the tech support and hope that together with the letters from the other unfortunate clients of theirs we have a good case. I dont want to go to court but ADR [mediators] have nor persuaded them to refund the cost of the system

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