(19) Digital content means data which are produced and supplied in digital form, such as computer programs, applications, games, music, videos or texts, irrespective of whether they are accessed through downloading or streaming, from a tangible medium or through any other means.
Contracts for the supply of digital_content should fall within the scope of this Directive.
If digital_content is supplied on a tangible medium, such as a CD or a DVD, it should be considered as goods within the meaning of this Directive.
Similarly to contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, or of district heating, contracts for digital_content which is not supplied on a tangible medium should be classified, for the purpose of this Directive, neither as sales_contracts nor as service_contracts.
For such contracts, the consumer should have a right of withdrawal unless he has consented to the beginning of the performance of the contract during the withdrawal period and has acknowledged that he will consequently lose the right to withdraw from the contract.
In addition to the general information requirements, the trader should inform the consumer about the functionality and the relevant interoperability of digital_content.
The notion of functionality should refer to the ways in which digital_content can be used, for instance for the tracking of consumer behaviour; it should also refer to the absence or presence of any technical restrictions such as protection via Digital Rights Management or region coding.
The notion of relevant interoperability is meant to describe the information regarding the standard hardware and software environment with which the digital_content is compatible, for instance the operating system, the necessary version and certain hardware features.
The Commission should examine the need for further harmonisation of provisions in respect of digital_content and submit, if necessary, a legislative proposal for addressing this matter.
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(20) The definition of distance_contract should cover all cases where a contract is concluded between the trader and the consumer under an organised distance sales or service-provision scheme, with the exclusive use of one or more means of distance communication (such as mail order, Internet, telephone or fax) up to and including the time at which the contract is concluded.
That definition should also cover situations where the consumer visits the business_premises merely for the purpose of gathering information about the goods or services and subsequently negotiates and concludes the contract at a distance.
By contrast, a contract which is negotiated at the business_premises of the trader and finally concluded by means of distance communication should not be considered a distance_contract.
Neither should a contract initiated by means of distance communication, but finally concluded at the business_premises of the trader be considered a distance_contract.
Similarly, the concept of distance_contract should not include reservations made by a consumer through a means of distance communications to request the provision of a service from a professional, such as in the case of a consumer phoning to request an appointment with a hairdresser.
The notion of an organised distance sales or service-provision scheme should include those schemes offered by a third party other than the trader but used by the trader, such as an online platform.
It should not, however, cover cases where websites merely offer information on the trader, his goods and/or services and his contact details.
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(49) Certain exceptions from the right of withdrawal should exist, both for distance and off-premises_contracts.
A right of withdrawal could be inappropriate for example given the nature of particular goods or services.
That is the case for example with wine supplied a long time after the conclusion of a contract of a speculative nature where the value is dependent on fluctuations in the market (‘vin en primeur’).
The right of withdrawal should neither apply to goods made to the consumer’s specifications or which are clearly personalised such as tailor-made curtains, nor to the supply of fuel, for example, which is a good, by nature inseparably mixed with other items after delivery.
The granting of a right of withdrawal to the consumer could also be inappropriate in the case of certain services where the conclusion of the contract implies the setting aside of capacity which, if a right of withdrawal were exercised, the trader may find difficult to fill.
This would for example be the case where reservations are made at hotels or concerning holiday cottages or cultural or sporting events.
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(52) In the context of sales_contracts, the delivery of goods can take place in various ways, either immediately or at a later date.
If the parties have not agreed on a specific delivery date, the trader should deliver the goods as soon as possible, but in any event not later than 30 days from the day of the conclusion of the contract.
The rules regarding late delivery should also take into account goods to be manufactured or acquired specially for the consumer which cannot be reused by the trader without considerable loss.
Therefore, a rule which grants an additional reasonable period of time to the trader in certain circumstances should be provided for in this Directive.
When the trader has failed to deliver the goods within the period of time agreed with the consumer, before the consumer can terminate the contract, the consumer should call upon the trader to make the delivery within a reasonable additional period of time and be entitled to terminate the contract if the trader fails to deliver the goods even within that additional period of time.
However, this rule should not apply when the trader has refused to deliver the goods in an unequivocal statement.
Neither should it apply in certain circumstances where the delivery period is essential such as, for example, in the case of a wedding dress which should be delivered before the wedding.
Nor should it apply in circumstances where the consumer informs the trader that delivery on a specified date is essential.
For this purpose, the consumer may use the trader’s contact details given in accordance with this Directive.
In these specific cases, if the trader fails to deliver the goods on time, the consumer should be entitled to terminate the contract immediately after the expiry of the delivery period initially agreed.
This Directive should be without prejudice to national provisions on the way the consumer should notify the trader of his will to terminate the contract.
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(56) Persons or organisations regarded under national law as having a legitimate interest in protecting consumer contractual rights should be afforded the right to initiate proceedings, either before a court or before an administrative authority which is competent to decide upon complaints or to initiate appropriate legal proceedings.
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