Hi there,

Sorry to hear this. I have been through all the calls today and could only find one that was similar to this which mentioned "egg timing" as your post refers (at 3:12pm) to our 0800 number.

You did indeed ask the difference between Home, Office and Pro and it was explained what the main differences were between them and that we would recommend Pro, which is what most our customers opt for where possible.

In regard to the number, you asked for us to check what service you were currently on. As the member of my team advised, we couldn't advise what you were on now as the service wasn't provided by us but then did explain that there wasn't one specific package you had to go on but you could choose any of the available services.

Apologies if there was some confusion over this, do get in touch and we'll try and demystify this a little for you.

Matt

I am leaving BE and was looking for an appropriate LLU supplier. Having read the positive reviews of Xilo here I decided they may be a good choice. I understood that the £40+VAT activation fee for inbound migrations was a condition imposed by O2 Wholesale and would therefore apply to any inbound migration to an O2 reseller.

The good folks at Aquiss are able to offer ex-BE customers free inbound migration to the same O2 wholesale service. On learning this, I attempted to cancel my order with Xilo. It is unfortunate that the broadband market is so complex for lay people to understand, however I am aware of the Distance Selling Regulations and understood that I had statutory cancellation rights.

I raised a ticket with Xilo two working days after initially placing my order, which is still more than a week from my proposed activation date. I did not receive a reply over the weekend so on Monday afternoon I telephoned. I was disappointed to be told the following by a Xilo representative:

-the OFT guidance suggests that broadband services are exempt from the DSRs. ( I have not been able to confirm this with the OFT)
-it may not be possible to cancel the order with the wholesaler, despite there still being four working days before the activation date
-if the service could not be cancelled, installation would go ahead and then be ceased, and there would be cease charges to pay
-if the service could be cancelled, there would be a £20 + VAT charge as explained in their website terms.


I have the following difficulties with this position. First, I was not told at the time of placing my order that service would begin immediately and that my cancellation rights would be affected. I now understand having done some research that Xilo's supplier may charge Xilo for any work done provisioning my line, and if a customer was to cancel under the DSRs then they would absorb these losses. I can therefore understand that Xilo would be reluctant to let me cancel without passing on this charge. However, I believe Xilo did not correctly follow the provisions of the DSRs in order to be able to do this.

Since Xilo referred me to the OFT guidance on how the DSRs were applied, I looked at this information myself. It appears that for services like broadband where service is performed before the end of the 7 day cooling off period, the cancellation rights are lost as soon as the service begins. However I was told service would be �activated� on March 14th and was not told of any preparatory work or its effect on my cancellation rights. The OFT interprets the guidance in the following manner:

Under the DSRs, if the pre-contract information was not provided in
writing or another durable medium available and accessible to the
customer, then you must confirm the information outlined in the first
eight bullet points in the Pre-contract information required under the
PSRs list, and also the following information, in a durable medium
when and how to exercise customers� rights to cancel under the
DSRs including
for services � the consequence of agreeing to a service
starting before the end of the usual seven working day
cancellation period

How and when you must supply written and additional information
Under the DSRs, you must supply the written and additional
information in a durable medium before the conclusion of the contract, or in �good time� afterwards during performance of a services
contract, or, at the latest, at the time of delivery of goods.
Information is said to be received in good time if customers have
sufficient time to act on it when they receive it, for example,
to enable them to exercise their right to cancel.
If you provide pre-contractual information in a form that does not
allow it to be stored or reproduced by the customer, such as during
a phone call or on a website, then you must confirm in writing, or in
another durable medium.

Unless you have agreed that they can, your customers cannot cancel
if the order is for
services once you have started the service, provided you had the
customer�s agreement to start the service before the end of the
usual cancellation period and you have provided the customer
with the required written information before you started the
service, including information that the cancellation rights would
end as soon as you started the service

Different rules apply to services where the customer agrees that
the service starts before the usual cancellation period expires.
These rules are as follows.
Where you have supplied the required durable information before
the service starts and the customer agrees to the service starting
before the end of the usual cancellation period, their cancellation
rights will end when performance of the service starts.
If the customer agrees that the service can start before the usual
cancellation period ends and you do not provide the required
written information until after the service has started, but still
provide it in time for it still to be useful, cancellation rights will last
for seven working days after the day the customer receives the
information. But if you finish providing the service within seven
working days after the day the customer receives the required
durable information, cancellation rights will end on the day of
completion.

What if...?
... The customer wants to cancel after the work is started?
Once you have started work or begun to provide a service,
the customer is contractually bound to honour their part of the
contract so long as you
had their agreement to start the service
provided them with the required durable information in advance
of your starting, including that their cancellation rights would end as soon as you started carrying out the contract.

Durable medium
We consider this means a form in which information can be retained
and reproduced but cannot be edited, such as an email that can
be printed or a letter, fax or brochure that can be kept for future
reference. Information on a website is not durable as it can be
changed at any time after the consumer has accessed it.

I raised a ticket with Xilo yesterday raising these points, and look forward to their response. My personal view is that it would be for the ISP to tell customers in a durable form at the time of concluding the contract or soon enough afterwards for the information to be useful that once the order is placed with their wholesaler the customer no longer has the right to cancel. This would avoid the ISP being responsible for any wholesale charges in the event the customer chose to cancel, but the lay consumer cannot be expected to understand the intricacies of broadband provisioning and in my case I think a refund should be made as I requested to cancel within the 7 day period and was not notified that my cancellation rights were adversely affected in durable form as required by the regulations. This could easily be done in the email which accompanies a successful order.

EDIT: I had posted a copy of the email I received from Xilo when I placed my order with them. This was the "durable information" referred to in the Regulations and I posted it to show that it did not mention my cancellation rights. However, Matt at Xilo has asked me to remove what he believes to be confidential information and I am cooperating in the spirit of goodwill.

Note no mention of my cancellation rights or how they may be adversely affected by service beginning within the 7 day cooling off period.

Finally, I anticipate that Xilo would refer to their website terms and conditions. First, a website is not considered a durable medium so in terms of the DSRs these clauses should have been provided by email when the contract was concluded or soon after. Second, it is not clear which services the broadband charges apply to. Indeed it is not clear that these terms formed part of the contract as they were not drawn to my attention during pre sales, at the time of concluding the contract, or immediately after in a durable medium.

I hope this matter can be resolved to the satisfaction of all parties and I look forward to hearing input from other members. I have been a BE customer for six years and hope I can find a new ISP to continue a hassle free internet experience.

Edited by deleted (Tue 12-Mar-13 14:28:28)

In reply to a post by tblackwood:

EDIT: I had posted a copy of the email I received from Xilo when I placed my order with them. This was the "durable information" referred to in the Regulations and I posted it to show that it did not mention my cancellation rights. However, Matt at Xilo has asked me to remove what he believes to be confidential information and I am cooperating in the spirit of goodwill.

Interesting you get asked to remove part of the post but you get no reply to you're post. There maybe a few BE and o2 customers who are looking to move waiting to hear both sides to this post.

I can't believe a confirmation of an order email/letter to a customer can be confidential. Was it marked "Confidential"?

In reply to a post by XRaySpeX:

I can't believe a confirmation of an order email/letter to a customer can be confidential. Was it marked "Confidential"?

The "Xilo:Broadband Order Information" email that I got more than 15 months ago contained my home phone number, user name, password and connection details to set up a modem or router. The email also stated "This message is private and confidential".

Edit: And all subsequent emails that I have got from xilo/uno, e.g. replies to tickets, have been also marked "This message is private and confidential"

Edited by 4M2 (Tue 12-Mar-13 19:41:46)

Simply because the issue is being discussed via ticket and still being investigated - I am not going duplicate what is said on both.

The person concerned was advised yesterday that we'd come back to them today. True to our word, we did but they decided to post here too despite this.

Matt

I would not have volunteered this information given that your earlier email to me today said that you thought my posting here so soon was unfair, but as you have represented that your firm has replied I feel I must include that your reply, via a colleague was limited to the following:

"Matt has advised he will come back to you shortly about the remaining issue."

The remaining issue is of course whether you intend to refund the £62.99 I paid to your company for a broadband service which today you confirmed had been cancelled.

Finally, while I appreciate you may have wished more time to resolve this issue with me directly, my post here concerned whether broadband service providers could properly disclaim the DSR obligations and if so were they required to inform their customers at the time of concluding the contract whether their cancellation rights were affected. Your companies position on this and what I was told on the telephone by your representative on Monday would not be altered by a timely response from you today.

As I have stated, I am not going to post here to duplicate my response. Once I have fully reviewed the matter, a response will be given via the ticket you have raised with us.

Giving a part response now and then again via ticket serves no useful purpose and will not conclude the matter any quicker.

Matt

In reply to a post by XRaySpeX:

I can't believe a confirmation of an order email/letter to a customer can be confidential. Was it marked "Confidential"?

Yes, it was. To 4M2: I redacted personally identifiable information, passwords, and the DNS servers from the email before posting it. I could understand why an ISP would not want those details shared!

Certain prerequisites must exist before confidentiality can attach to a communication.

For those further interested, please see the case of Coco v AN Clark (Engineers) Ltd [1969] RPC 41 - Mr Justice Megarry describes (page 47) the tripartite test required before confidentiality exists and a breach of this gives rise to an action. You will note that the information must have the necessary quality of confidence, which is unlikely to feature in a standard acceptance communication from a business confirming order details. The second test is that the information must be imparted in a way which implies confidentiality, which marking the correspondence as confidential may certainly do. However, all three tests (the third being the disclosure is to the detriment of the claimant) must be satisfied in tandem before a breach is actionable.

Those without access to WestLaw or similar can probably find decent summaries of this case online. (and for those very interested how confidentiality law was developed through the House of Lords decision in the "Spycatcher" case, AG v Guardian) So I would suggest, although this is not legal advice, that a correspondence isn't necessarily confidential just because it is marked as such, and common sense can be used in determining this. In the spirit of cooperation and as the point regarding the lack of cancellation terms appears not to be disputed I voluntarily removed the copy email.

While the confidentiality aspect is interesting, I think the main issue is to what extent DSRs apply to broadband providers. I appreciate that Matt does not wish to duplicate his ticket responses here and this was not my intention in posting to the thread. I simply wanted to share experiences and get input from other broadband users and suppliers about what the position is (or should fairly be) with regard to cancellations. So perhaps we can continue this discussion on a more general theme.

Yes, I just received an email from them in response to a pre-sales query I made. It was marked at the foot "the contents of this email is private & confidential".

There was nothing in it that was confidential other than my email addy and that is for me to choose whether it is private .

So it fails tests 1 & 3 of the tripartite test for confidentiality, as I would imagine would most of their emails to custs & non-custs.