Contratti digitali 2019/0770 EN

(b)	a service that allows the sharing of or any other interaction with data in digital form uploaded or created by the consumer or other users of that service;

(3)	‘ goods_with_digital_elements’ means any tangible movable items that incorporate, or are inter-connected with, digital_content or a digital_service in such a way that the absence of that digital_content or digital_service would prevent the goods from performing their functions;

(4)	‘ integration’ means the linking and incorporation of digital_content or a digital_service with the components of the consumer's digital_environment in order for the digital_content or digital_service to be used in accordance with the requirements for conformity provided for by this Directive;

(5)

‘ trader’ means any natural or legal person, irrespective of whether privately or publicly owned, that is acting, including through any other person acting in that natural or legal person's name or on that person's behalf, for purposes relating to that person's trade, business, craft, or profession, in relation to contracts covered by this Directive;

(6)	‘ consumer’ means any natural person who, in relation to contracts covered by this Directive, is acting for purposes which are outside that person's trade, business, craft, or profession;

(7)	‘ price’ means money or a digital representation of value that is due in exchange for the supply of digital_content or a digital_service;

(8)	‘ personal_data’ means personal_data as defined in point (1) of Article 4 of Regulation (EU) 2016/679;

(9)	‘ digital_environment’ means hardware, software and any network connection used by the consumer to access or make use of digital_content or a digital_service;

(10)	‘ compatibility’ means the ability of the digital_content or digital_service to function with hardware or software with which digital_content or digital_services of the same type are normally used, without the need to convert the digital_content or digital_service;

(11)	‘ functionality’ means the ability of the digital_content or digital_service to perform its functions having regard to its purpose;

(12)	‘ interoperability’ means the ability of the digital_content or digital_service to function with hardware or software different from those with which digital_content or digital_services of the same type are normally used;

(13)

‘ durable_medium’ means any instrument which enables the consumer or the trader to store information addressed personally to that person in a way that is accessible for future reference, for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored.

Article 5

Supply of the digital_content or digital_service

1. The trader shall supply the digital_content or digital_service to the consumer. Unless the parties have agreed otherwise, the trader shall supply the digital_content or digital_service without undue delay after the conclusion of the contract.

2. The trader shall have complied with the obligation to supply when:

(a)	the digital_content or any means suitable for accessing or downloading the digital_content is made available or accessible to the consumer, or to a physical or virtual facility chosen by the consumer for that purpose;

(b)	the digital_service is made accessible to the consumer or to a physical or virtual facility chosen by the consumer for that purpose.

Article 16

Obligations of the trader in the event of termination

1. In the event of termination of the contract, the trader shall reimburse the consumer for all sums paid under the contract.

However, in cases where the contract provides for the supply of the digital_content or digital_service in exchange for a payment of a price and over a period of time, and the digital_content or digital_service had been in conformity for a period of time prior to the termination of the contract, the trader shall reimburse the consumer only for the proportionate part of the price paid corresponding to the period of time during which the digital_content or digital_service was not in conformity, and any part of the price paid by the consumer in advance for any period of the contract that would have remained had the contract not been terminated.

2. In respect of personal_data of the consumer, the trader shall comply with the obligations applicable under Regulation (EU) 2016/679.

3. The trader shall refrain from using any content other than personal_data, which was provided or created by the consumer when using the digital_content or digital_service supplied by the trader, except where such content:

(a)	has no utility outside the context of the digital_content or digital_service supplied by the trader;

(b)	only relates to the consumer's activity when using the digital_content or digital_service supplied by the trader;

(c)	has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts; or

(d)	has been generated jointly by the consumer and others, and other consumers are able to continue to make use of the content.

4. Except in the situations referred to in point (a), (b) or (c) of paragraph 3, the trader shall, at the request of the consumer, make available to the consumer any content other than personal_data, which was provided or created by the consumer when using the digital_content or digital_service supplied by the trader.

The consumer shall be entitled to retrieve that digital_content free of charge, without hindrance from the trader, within a reasonable time and in a commonly used and machine-readable format.

5. The trader may prevent any further use of the digital_content or digital_service by the consumer, in particular by making the digital_content or digital_service inaccessible to the consumer or disabling the user account of the consumer, without prejudice to paragraph 4.

Article 19

Modification of the digital_content or digital_service

1. Where the contract provides that the digital_content or digital_service is to be supplied or made accessible to the consumer over a period of time, the trader may modify the digital_content or digital_service beyond what is necessary to maintain the digital_content or digital_service in conformity in accordance with Articles 7 and 8, if the following conditions are met:

(a)	the contract allows, and provides a valid reason for, such a modification;

(b)	such a modification is made without additional cost to the consumer;

(c)	the consumer is informed in a clear and comprehensible manner of the modification; and

(d)

in the cases referred to in paragraph 2, the consumer is informed reasonably in advance on a durable_medium of the features and time of the modification and of the right to terminate the contract in accordance with paragraph 2, or of the possibility to maintain the digital_content or digital_service without such a modification in accordance with paragraph 4.

2. The consumer shall be entitled to terminate the contract if the modification negatively impacts the consumer's access to or use of the digital_content or digital_service, unless such negative impact is only minor. In that case, the consumer shall be entitled to terminate the contract free of charge within 30 days of the receipt of the information or of the time when the digital_content or digital_service has been modified by the trader, whichever is later.

3. Where the consumer terminates the contract in accordance with paragraph 2 of this Article, Articles 15 to 18 shall apply accordingly.

4. Paragraphs 2 and 3 of this Article shall not apply if the trader has enabled the consumer to maintain without additional cost the digital_content or digital_service without the modification, and the digital_content or digital_service remains in conformity.

whereas

(41) There are various ways for the trader to supply digital_content or digital_services to consumers.
It is opportune to set simple and clear rules as to the modalities and the time for performing that obligation to supply which is the main contractual obligation of the trader, by making the digital_content or a digital_service available or accessible to the consumer.
The digital_content or digital_service should be considered to be made available or accessible to the consumer when the digital_content or digital_service, or any means suitable for accessing or downloading it, has reached the sphere of the consumer and no further action is required by the trader in order to enable the consumer to use the digital_content or digital_service in accordance with the contract.
Considering that the trader is not in principle responsible for acts or omissions of a third party which operates a physical or virtual facility, for instance an electronic platform or a cloud storage facility, that the consumer selects for receiving or storing the digital_content or digital_service, it should be sufficient for the trader to supply the digital_content or digital_service to that third party.
However, the physical or virtual facility cannot be considered to be chosen by the consumer if it is under the trader's control or is contractually linked to the trader, or where the consumer selected that physical or virtual facility for receipt of the digital_content or digital_service but that choice was the only one offered by the trader to receive or access the digital_content or digital_service.

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(57) Digital content or digital_services could also be supplied to consumers in a continuous manner over a period of time.
Continuous supply can include cases whereby the trader makes a digital_service available to consumers for a fixed or an indefinite period of time, such as a two-year cloud storage contract or an indefinite social media platform membership.
The distinctive element of this category is the fact that the digital_content or digital_service is available or accessible to consumers only for the fixed duration of the contract or for as long as the indefinite contract is in force.
Therefore, it is justified that the trader, in such cases, should only be liable for a lack of conformity which appears during that period of time.
The element of continuous supply should not necessarily require a long-term supply.
Cases such as web-streaming of a video clip should be considered continuous supply over a period of time, regardless of the actual duration of the audio-visual file.
Cases where specific elements of the digital_content or digital_service are made available periodically or on several instances during the fixed duration of the contract, or for as long as the indefinite contract is in force, should also be considered a continuous supply over a period of time, for instance where the contract stipulates that a copy of anti-virus software can be used for a year and will be automatically updated on the first day of each month of this period, or that the trader will issue updates whenever new features of a digital game become available, and the digital_content or digital_service is available or accessible to consumers only for the fixed duration of the contract or for as long as the indefinite contract is in force.

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(72) Where the contract is terminated, the consumer should not be required to pay for the use of the digital_content or digital_service for any period during which the digital_content or a digital_service was not in conformity because that would deprive the consumer of effective protection.
However, the consumer should also refrain from using the digital_content or digital_service and from making it available to third parties, for instance by deleting the digital_content or any usable copy or rendering the digital_content or digital_service otherwise inaccessible.

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(74) This Directive should also address modifications, such as updates and upgrades, which are carried out by traders on the digital_content or digital_service which is supplied or made accessible to the consumer over a period of time.
Considering the fast-evolving character of digital_content and digital_services, such updates, upgrades or similar modifications may be necessary and are often advantageous for the consumer.
Some modifications, for instance those stipulated as updates in the contract, may form part of the contractual commitment.
Other modifications can be required to fulfil the objective requirements for conformity of the digital_content or digital_service as set out in this Directive.
Yet other modifications, which would deviate from the objective requirements for conformity and which are foreseeable at the time of conclusion of the contract, would have to be expressly agreed to by the consumer when concluding the contract.

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keyboard_tab Contratti digitali 2019/0770 EN

Contratti digitali 2019/0770 EN