(21) Directive (EU) 2019/771 should apply to contracts for the sale of goods, including goods_with_digital_elements.
The notion of goods_with_digital_elements should refer to goods 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.
Digital content or a digital_service that is incorporated in or inter-connected with goods in that manner should fall within the scope of Directive (EU) 2019/771 if it is provided with the goods under a sales contract concerning those goods.
Whether the supply of the incorporated or inter-connected digital_content or digital_service forms part of the sales contract with the seller should depend on the content of this contract.
This should include incorporated or inter-connected digital_content or digital_services the supply of which is explicitly required by the contract.
It should also include those sales contracts which can be understood as covering the supply of specific digital_content or a specific digital_service because they are normal for goods of the same type and the consumer could reasonably expect them given the nature of the goods and taking into account any public statement made by or on behalf of the seller or other persons in previous links of the chain of transactions, including the producer.
If, for example, a smart TV were advertised as including a particular video application, that video application would be considered to be part of the sales contract.
This should apply regardless of whether the digital_content or digital_service is pre-installed in the good itself or has to be downloaded subsequently on another device and is only inter-connected to the good.
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(65) Where bringing digital_content or a digital_service into conformity is legally or factually impossible or where the trader refuses to bring the digital_content or digital_service into conformity because to do so would impose disproportionate costs on the trader, or where the trader has failed to bring the digital_content or digital_service into conformity within a reasonable time, free of charge and without causing significant inconvenience to the consumer, the consumer should be entitled to the remedies of price reduction or termination of the contract.
In certain situations, it is justified that the consumer should be entitled to have the price reduced or the contract terminated immediately, for instance where the trader previously failed to successfully bring the digital_content or digital_service into conformity or where the consumer cannot be expected to maintain confidence in the ability of the trader to bring the digital_content or digital_service into conformity due to the serious nature of the lack of conformity.
For example, the consumer should be entitled to directly request a price reduction or the termination of the contract where the consumer is supplied with anti-virus software which is itself infected with viruses and would constitute an instance of lack of conformity of such a serious nature.
The same should apply where it is clear that the trader will not bring the digital_content or digital_service into conformity within a reasonable time or without significant inconvenience for the consumer.
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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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