An ad for XEPOS electronic point of sale (EPOS) software, seen on www.xepos.co.uk in August 2017, listed the product’s key features. Under a tab labelled “CLOUD”, text stated “Store all your data to the cloud for safe and quick storage. With XEPOS, all your data is stored on our secure cloud servers so you can access all your data from anywhere in the world. No matter what happens to your business, you can retrieve whatever you need at any time”.
The complainant, who understood that the software did not feature cloud storage, challenged whether the ad was misleading and could be substantiated.
Express EPOS Ltd t/a XEPOS said that they were a provider of point of sale hardware and software mainly targeting the small business market. The provided systems for businesses ranging from retail businesses to takeaway shops and hair salons. In the past six months they had developed a new software package that they were currently providing to the vast majority of their retail and hospitality business customers. The software was completely cloud-based and could be installed on their secure cloud servers. They were providing this software to almost all new customers as well as upgrading many older customers. However, as it was a new development, it was not 100% ideal for all the different businesses they dealt with. There were still some features missing which could be provided by their older software. The decision to provide a customer with the older version of the software was usually the result of a discussion over the phone with the customer regarding their specific requirements. In those instances, XEPOS always made clear to the customer that the software they would receive was not cloud-based and might only offer a more limited range of features when it came to accessing data remotely and backing up their database on XEPOS servers. They said that they would never intentionally mislead a customer as to the nature of the system they were purchasing.
The ASA considered that businesses viewing the ad would understand the claims “CLOUD”, “store all your data in the cloud” and “all your data is stored on our secure cloud servers” to mean that cloud data storage was one of the functions offered by XEPOS software. We noted that the website included different pages describing the features that the software offered for different types of businesses – for example, retail, hospitality or health and beauty. However, all of these pages listed cloud storage as an available feature. We considered that customers viewing the ad would expect that if they ordered software from XEPOS, they would receive a product with cloud storage.
We understood from XEPOS that while most new customers were provided with their new EPOS software, which featured cloud storage, some were provided with an older version, which did not include cloud storage, if it was more suited to the customer’s individual requirements. We therefore understood that the key features of the product received would depend on factors specific to the individual business making the order. We considered that this was material information that needed to be made clear in the ad itself. However, there was no information within the ad explaining the limitations. Because we understood that not all customers who ordered EPOS software from XEPOS would receive a product with cloud storage capability, we concluded that the claims, as traders were likely to understand them, had not been substantiated and were therefore misleading.
The ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. 3.3 (Misleading advertising), 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) and 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification).
The ad must not appear again in its current form. We told Express EPOS Ltd to make significant limitations to their advertising claims sufficiently clear.